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f44a232f704bbb081a95a0bd8c9beddb2d11cd24 | AGENDA
01. APOLOGIES
02. MINUTES
03. DEPUTATIONS / PUBLIC ADDRESSES
04. DECLARATIONS OF INTEREST
05. MATTERS OF URGENCY WHICH BY REASON OF SPECIAL CIRCUMSTANCES THE CHAIR IS OF THE OPINION SHOULD BE CONSIDERED
06. LOCAL GOVERNMENT ETHICAL STANDARDS - COMMITTEE ON STANDARDS IN PUBLIC LIFE The Committee to consider a report following the recent meeting of the Standards Working Group that considered the report “Local Government Ethical Standards - Committee on Standards in Public Life”
07. INTERNAL AUDIT REPORT: MEMBER-OFFICER RELATIONSHIP REVIEW The Committee to receive a briefing on the Internal Audit Report: Member-Officer Relationship Review
08. STANDARDS COMMITTEE ANNUAL REPORT 2019/2020 The Standards Committee to consider and approve its Annual Report 2019/2020.
09. CODE OF CONDUCT ARRANGEMENT COMPLAINTS The Standards Committee to consider a report regarding complaints received under the Arrangements for dealing with allegations of breaches of the Council’s Code of Conduct and of Codes of Conduct adopted by Parish Councils.
10. EXCLUSION OF PUBLIC AND PRESS
THE CHAIR TO MOVE:
“THAT THE PUBLIC AND PRESS BE EXCLUDED FROM THE REMAINDER OF THE MEETING ON THE GROUNDS THAT THERE IS LIKELY TO BE DISCLOSURE TO THEM OF SUCH CATEGORIES OF EXEMPT INFORMATION AS DEFINED BY SECTION 100(1) OF THE LOCAL GOVERNMENT ACT 1972 AS LISTED AGAINST SUCH ITEMS OF BUSINESS BY REFERENCE TO THE APPROPRIATE PARAGRAPH OF SCHEDULE 12A TO SUCH ACT.”
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71217a979f41cad12f8ed7289f5c8feb7b38ad03 | Agricultural Policy in Kenya: Issues and Processes
A paper for the Future Agricultures Consortium workshop, Institute of Development Studies, 20-22 March 2006
by
Patrick O. Alila and Rosemary Atieno
Institute for Development Studies University of Nairobi P.O. Box 30197, Nairobi, Kenya Email: [email protected]
Final version, July 2006
1 The authors would like to acknowledge the contribution of Alfred Ouma Shem, in compiling some of the information used in writing this paper.
## Contents
| Section | Page | |------------------------------------------------------------------------|------| | Acronyms and Abbreviations | 2 | | 1. Introduction | 3 | | 2. Key Policy Issues | 3 | | Key Policy Concerns | | | Possible Concerns | | | Consistency with SRA priorities | | | 3. Structures and Actors Affecting Agricultural Policy | 15 | | Drivers of Change | | | What Shapes the Policy Environment? | | | Emerging Agricultural Policy Formulation Processes | | | SRA and the Various Policy Making Nodes | | | Case Studies | | | 4. Sufficiency of Structures and Processes to Implement SRA | 33 | | 5. Table 1: The Relationship between the Drivers of Change Considered | 16 | | 6. Appendix | 38 | | 7. References | 39 | | Acronyms and Abbreviations | |-----------------------------| | ASAL | Arid and Semi-Arid Lands | | ASIP | Agricultural Sector Investment Program | | CBK | Central Bank of Kenya | | CBO | Community based Organization | | CDF | Constituency Development Fund | | COMESA | Common Market for Eastern and Southern Africa | | COTEPAPA | Coffee and Tea Parliamentary Group | | DfID | Department for International Development | | DFRD | District Focus for Rural Development | | EAC | East African Community | | EU | European Union | | ERSWEC | Economic Recovery Strategy for Wealth and Employment Creation | | FBO | Faith Based Organization | | FPE | Free Primary Education | | GDP | Gross Domestic product | | GOK | Government of Kenya | | ICC | Inter-ministerial Coordination Committee | | IPAR | Institute of Policy Analysis and Research | | KARI | Kenya Agriculture Research Institute | | KIPPPRA | Kenya Institute for Public Policy Research and Analysis | | KPCU | Kenya Coffee Planters Co-operative Union | | KTDA | Kenya Tea Development Authority | | LATF | Local Authority Transfer Fund | | MDGs | Millennium Development Goals | | MOA | Ministry of Agriculture | | MOCD | Ministry of Co-operative Development | | MOF | Ministry of Finance | | MOL | Ministry of Lands | | MOLG | Ministry of Local Government | | MP | Member of Parliament | | MTEF | Medium Term Expenditure Framework | | MVP | Millennium Villages Project | | NARC | National Rainbow Coalition | | NGO | Non Governmental Organization | | NPEP | National Poverty Eradication Plan | | PER | Public Expenditure review | | PIU | Project Implementation Unit | | PRGF | Poverty Reduction and Growth Facility | | PRSP | Poverty Reduction Strategy Paper | | REF | Rural Electrification Fund | | RMLF | Road Maintenance Levy Fund | | SAPs | Structural Adjustment Programs | | SRA | Strategy for Revitalizing Agriculture | | SUPA | Sugar Parliamentary Group | | SWAP | Sector Wide Approach | | TA | Technical Assistance | | TIC | Technical Inter-ministerial Committee |
1. Introduction Agriculture remains the backbone of the Kenyan economy. It is the single most important sector in the economy, contributing approximately 25% of the GDP, and employing 75% of the national labour force (Republic of Kenya 2005). Over 80% of the Kenyan population live in the rural areas and derive their livelihoods, directly or indirectly from agriculture. Given its importance, the performance of the sector is therefore reflected in the performance of the whole economy. The development of agriculture is also important for poverty reduction since most of the vulnerable groups like pastoralists, the landless, and subsistence farmers, also depend on agriculture as their main source of livelihoods. Growth in the sector is therefore expected to have a greater impact on a larger section of the population than any other sector. The development of the sector is therefore important for the development of the economy as a whole.
The importance of the sector in the economy is reflected in the relationship between its performance and that of the key indicators like GDP and employment. Trends in the growth rates for agriculture, GDP and employment, show that the declining trend experienced in the sector’s growth especially in the 1990s, is reflected in the declines in employment and GDP as a whole (fig. 1. in Appendix). Policies that affect the performance of the sector have important implications for the economy.
Policies for agriculture consist of government decisions that influence the level and stability of input and output prices, public investments affecting agricultural production, costs and revenues and allocation of resources. These policies affect agriculture either directly or indirectly. Improved agricultural production has been seen as one of the overall objectives for poverty reduction in the country. The objectives of agricultural sector strategy have been increasing agricultural growth, seen as important for increasing rural incomes and ensuring equitable distribution. Due to limited availability of high potential land, it has been envisaged that increasing agricultural production will have to come from intensification of production through increased use of improved inputs, diversification especially from low to high value crops, commercialisation of smallholder agriculture, and increased value addition through stronger linkages with other sectors. In the following sections, we review some of the key policy issues and concerns with respect to the sector’s development.
2. Key Policy Issues Agricultural policy in Kenya revolves around the main goals of increasing productivity and income growth, especially for smallholders; enhanced food security and equity, emphasis on irrigation to introduce stability in agricultural output, commercialisation and intensification of production especially among small scale farmers; appropriate and participatory policy formulation and environmental sustainability. The key areas of policy concern, therefore, include:
- Increasing agricultural productivity and incomes, especially for small-holder farmers.
- Emphasis on irrigation to reduce over-reliance on rain-fed agriculture in the face of limited high potential agricultural land.
- Encouraging diversification into non-traditional agricultural commodities and value addition to reduce vulnerability. • Enhancing the food security and a reduction in the number of those suffering from hunger and hence the achievement of MDGs. • Encouraging private-sector-led development of the sector. • Ensuring environmental sustainability.
Key policy concerns i. **Declining agricultural performance:** Declining performance of the sector in terms of its growth, has been one of the major concerns facing policy makers and those having interests in the sector. The performance of agriculture, which remains the backbone of the economy slackened dramatically over the post independence years from an average of 4.7% in the first decade to only below 2% in the 90s. This decline culminated in a negative growth rate of -2.4% in 2000. As a sector that engages about 75% of the country’s labour force, such a decline implies lower levels of employment, incomes and more importantly, food insecurity for a vast majority of rural Kenyans. It is instructive to note that a sizeable proportion of the rural labour force (over 51%) are engaged in small-scale agriculture and that women are the majority in the sector. A decline in agriculture has thus far reaching implications in terms of employment and income inequality as well as food security for the country (UNDP 2002).
• Despite its declining performance, agriculture has continued to support the livelihoods of over two thirds of the labour force. This was mainly because the decline in agriculture’s performance since the mid 1980s was not matched with any real transformation in the economy which would have ensured that the share of other sectors in GDP and employment increased as agriculture’s share declined (ILO 1999). As a result, incomes have continued to decline as poverty has continued to entrench itself in the rural areas.
• It is recognised that low productivity, reflected in low yields per acre of land is among the main sources of high unit production costs in agriculture in Kenya. Among the reasons that explain this is the inability by farmers to afford readily available modern technologies of farming. The objective of policy makers in this area, therefore, is to increase output using improved technologies of farming, which would inevitably increase farm productivity and hence farmers incomes.
• Agricultural productivity can be increased, farmers incomes raised, more people fed and in deed, the general economic welfare enhanced. The SRA (2004-2014) recognises this and that to improve smallholder farm productivity as well as increase incomes, smallholder farming must be changed from producing for subsistence to commercial profitable businesses. It will then attract private entrepreneurs willing to invest therein and employ modern farming techniques necessary to achieve increased productivity. When agriculture is technology-led, not only is food security achievable but also poverty alleviation is also possible. Inability to afford new and readily available farming technology, however, is partly blamed on poor access to financial resources, especially in a nation where the majority, and not only farmers, are poor and the financial markets have not developed to support agricultural investment. • Poor marketing facilities and institutions are some of the constraints to increased agricultural production. The major marketing constraints comprise high transportation costs due to dilapidated roads, improper handling, poor storage facilities and wastage. These result in fluctuations in both productions and incomes. For livestock marketing, limited cattle holding grounds and meddling with stock-routes has limited access to markets. Promoting marketing of agricultural produce will require that holding grounds, watering points, stock-routes and livestock markets be developed; the private sector be encouraged to invest in slaughter houses and cold storage; local authorities in collaboration with the private sector invest in storage facilities; the government provides all-weather rural access roads, improve communication facilities and market information systems among others. The two sets of interventions, in enhancing agricultural productivity and marketing systems as recognized too by the SRA (2004-2014) will lead to agricultural growth.
ii. **Limited high potential agricultural land and over-reliance on rain fed agriculture.** Only about 17% of the country’s land is high and medium potential agricultural land where most intensive crop and dairy production take place. The rest is arid and semi arid, not suitable for rain fed agriculture. This means that increasing agricultural production will have to come from intensification of land use in the high and medium potential lands. The high reliance on rain fed agriculture vulnerable to weather variability leads to fluctuations in production and incomes especially for rural areas. There is low utilisation of irrigation potential with only less than 7% of the cropped land under irrigation(^1). Poor rains always lead to poor agricultural performance and the subsequent famines affecting large sections of the population. This spills over to negatively affect agricultural incomes and hence investments in rural areas.
• Droughts and floods have increased in frequency and intensity in the immediate past three decades, resulting in high crop failure and livestock deaths. The current ravaging drought is a stark reminder to this. In addition, increased land degradation has also decreased land resilience thereby exacerbating the effects of droughts and floods leading to devastating famines that claim increasing human and livestock lives. Recurrent droughts, floods and the associated losses are concerns that have featured much in public debate in the recent past.
• Over reliance on rain-fed agriculture, therefore, can be seen as one of the major causes of food insecurity. Despite the enormous potential for irrigation, irrigation based farming is not widely practiced. It is developed under large-scale irrigation schemes for crops like rice a few farmers have their own irrigation systems for export crops like horticultural produce and a limited number of smallholders practice small scale irrigation farming. This has been due to low utilisation of water, lack of efficient technologies, destruction of rainfall catchment areas, poor management of government irrigation schemes, degradation of surface water, uncontrolled exploitation of underground water, leading to a drop in the water table and increase of water extraction costs, sluggishness in permit allocation for use of water, the lop sided Nile Treaty among others. Putting more emphasis on
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(^1) Kenya has 540,000 hectares of irrigable land but less than 90,000 hectares have been irrigated (SRA 2004). irrigation is important in increasing arable land, productivity per acre of land, stability of agricultural output during adverse weather conditions and stemming famines achievable only with addressing factors that hinder irrigation efforts.
iii. **Limited diversification of Agricultural production:** Narrow base of agricultural products, especially exports leads to high vulnerability of incomes to the international market trends. The sector is characterised by weak vertical integration, made worse by weak institutions and support services for agricultural exports. Only a few commodities (coffee, tea, dairy, maize, wheat, beef, and horticulture) provide livelihood for over 85% of the population while coffee and tea alone provide 45% of the wage employment in the sector. Closely linked to this is the narrow base for agricultural exports (UNDP 2002).
- Primary agro-based products constitute about 51% of the country’s total exports, with the value of exports from agricultural sector accounting for 64% of total exports (Kenya 2003)a. Despite the potential for exports of fresh produce and the, it only accounts for 3% of the total production of fresh produce. This is mainly due to limited diversification, and low value addition in agricultural exports. The challenges to the diversification of agricultural exports, which hinder the realisation of the potential include; poor outdated technology that hinders the processing of agricultural products into high value products, limited access to breeds with high yield potentials, WTO regulations that increase the cost of imported seeds and planting materials, limited capacity by quality assurance bodies to ensure compliance with international standards and the imposition of non tariff barriers to trade like sanitary and phytosanitary standards.
- Kenya has not exploited its agricultural potential to the full which is necessary to diversify into no-traditional commodities. This would improve and stabilise agricultural output, productivity, incomes, significantly check famine and thus food insecurity. The country has varied climatic conditions suitable for diversified agriculture into specialised niches like horticulture, herbs, spices, fruits and even lean beef, but which have not been exploited to the fullest despite very good efforts made in horticulture and fruits. There is also a vast fish potential that has remained unexploited. The inability to effectively monitor and enforce compliance and rules governing offshore territorial waters has curtailed full exploitation of the offshore fishing potential. However, full exploitation of this potential has been hindered too by lack of equipment to undertake deep-sea fishing and the availability of more lucrative alternative sources of livelihood found in the tourist industry.
- Produce from agriculture is commonly marketed with minimal processing resulting in low revenue earning capacity to farmers, fishermen and creation of fewer employment opportunities for citizens. Efforts should be made to enhance agro-processing to increase value of agricultural exports and enhance their income earning potential. Some of these measures recognized by SRA (2004-2014) include, provision of appropriate incentives for establishing agro-industries in rural areas; focused research on value addition regarding processing, storage and packing of agricultural produce; promotion of partnerships between smallholders and agribusiness; improvement of supportive infrastructure, e.g., rural access roads, rural electrification, water and telecommunications; and undertake training for farmers and farmer institutions in value addition among others. The media has recently highlighted the plight of mango farmers who cannot market their bumper produce.
- There is also limited exploitation of the regional market potential. The regional markets that have resulted from regional integration, e.g., in the East African Community (EAC), Common Market for Eastern and Southern Africa (COMESA), etc., and trade liberalisation are yet to be exploited to a significant level. The government needs to encourage trade in agricultural produce across borders, improve and/or provide quality control services, capacity build farmers and fish traders on sanitary, phytosanitary and zoo sanitary measures and international standards, build effective systems to gather and utilize information on external market opportunities, enhance efficiency in port and airport handling services to eliminate delays and costs, designate disease free zones to speed up access to export markets for livestock and their products. Furthermore, the country can become a regional hub for exports to the opened up markets through regional integration and trade liberalisation to the Far East as well.
iv. **Poor and inadequate rural infrastructure**: Poor infrastructure including poor rural roads, markets and transport systems that result in high transactions costs for farmers and inaccessibility to input and output markets are among the main concerns for the sector. The performance of the sector is affected right from the production to marketing domestically and even internationally. For exports this means lack of sustainable supply of raw materials due to uncontrolled production, with gluts alternating with shortages as well as uncompetitiveness since high transport costs are reflected in high prices. Poor infrastructure has also contributed to the poor market integration in the country.
- Although agriculture has over the years contributed more than proportionately to GDP growth in comparison to other sectors, this has been partly due to infrastructure established through efforts made for specific commodities. Some of these include provision and maintenance of rural access roads to facilitate the movement of agricultural produce to markets, establishment of agro-based industries to increase the value of agricultural produce, education, training and extension services to enhance the adoption of modern farming techniques, establishment of local market centres to open up markets for farmers produce, rural electrification to facilitate agro-processing and safe storage for the produce. Most of these services have been provided centrally by the government through various concerned implementing ministries, until when new fiscal reforms were initiated after the realisation that the productivity of the funds were not very effective.
v. **Inadequate and declining research in agriculture**: During the first decade of independence, agricultural research emphasised cash crops and major food crops led to major break throughs in these commodities, which largely contributed to increased agricultural production. There was however insufficient appreciation of the economic aspects of small scale farming, leading to research being based on input levels that were uneconomical to the small farmers. Productivity from small scale farms has therefore been lower than from the large scale farms. Agricultural research was also not coordinated, until the creation of the national scientific and research council. Training for agricultural extension staff also expanded.
- Inadequate research, especially demand driven research, coupled with ineffective extension and delivery system of research findings has been yet another concern. The decline in government allocation to the sector has contributed to this continuing trend. The results here include decline in other agricultural services like artificial insemination services, lack of good quality seed and planting materials for farmers. High costs have led to inadequate application of improved purchased inputs on most of the farms. A major concern with respect to research is also that the limited research activities generally cover only export crops, ignoring the essential food crops. The research system in place for agriculture also faces a number of problems like lack of strong research-extension-farmer linkages, inadequate funding, and high turnover of research scientists due to poor incentives.
- The provision of services has also been affected by too many official interventions especially in commodity marketing and pricing, characterised by proliferation of parastatal activities in pricing controls of agricultural commodities. Institutional failure due to lack of capacity by the private sector to take over the functions previously performed by the state after liberalisation of the sector. Limited investment and coordination by local research institutions like KARI and institutions of higher leaning is also a concern.
- A number of constraints have however hindered further progress in research. Lack of well defined priorities that reflect policy pronouncements, lack of monitoring and evaluation, the low use of trained scientists from institutions of higher learning and low funds for research have all contributed to the concern. The ability of Kenyan agriculture to play its role in the economy depends on the research agenda that the country charts out for its national agricultural research system. The international agricultural research centres should therefore only complement local research output. Although agricultural research is currently coordinated by Kenya Agricultural Institute (KARI), a critical problem is availability of research funds. Research expenditure as a percentage of GDP remains below 10%, although most financing has been done by donors.
vi. **Agricultural sector financing and related activities.** The lack of finance for agriculture limits increasing production and investment in value addition activities in agriculture. Inaccessibility to credit especially for small scale farmers and especially women has limited the range of activities, the type of technology used and the scale of operations that a farmer can adopt on his farm. Agricultural credit available to farmers has tended to diminish over time since independence. Although there have been a number of institutions that have been involved in agricultural financing over time, actual investment in the sector has been small. Thus to improve agricultural productivity and incomes, especially of smallholders most of whom reside in rural areas, access to affordable financial credit is important to enable them acquire new farming technology - a necessary input in realising the higher productivity goal. • There has been a bias of credit towards large farms and cash enterprises. Poor mobilisation of financial resources through weak cooperative system, and grass roots organisations needs to be addressed.
vii. **Limited development and exploitation of the livestock sector.** Despite the long recognised potential of the livestock sector, this potential remains largely unexploited. Kenya’s livestock sector contributes 10% to the GDP and about 42% of total agricultural output (Republic of Kenya 2002). It supplies the domestic requirements of meat, milk, dairy products and other livestock products, and accounts for about 30% of all marketed agricultural output. The sector also earns foreign exchange through the export of live animals, hides and skins, dairy products and processed pork products besides providing raw materials for agro-based industries. It employs 50% of total agricultural labour force. Although livestock keeping is commonly practiced throughout Kenya, more than 60% of all Kenya’s livestock is found in the ASAL where it employs 90% of the local population. The livestock sector is charged with ensuring self-sufficiency in livestock products (Republic of Kenya 2002; Ministry of Livestock and Fisheries Development 2006).
• The development of the livestock sector is however constrained by a number of factors. Recurrent droughts that lead to massive losses in livestock and therefore livelihoods for the pastoralists are a major concern. This, coupled with lack of reliable markets has seriously undermined efforts to realise the full development potential of the sector. Since the liberalisation of domestic marketing of agricultural products, which reduced the role of marketing boards like Kenya Meat Commission (KMC) and Kenya Cooperative Creameries (KCC), the marketing of livestock and livestock products was left to private traders, who lacked the capacity to take over the role of the state corporations (ILO 2002). The marketing problem has been aggravated by the poor state of infrastructure, which increases the marketing costs.
• The high costs of inputs and veterinary services have also constrained the development of the sector. The withdrawal of government subsidies as part of economic reforms meant that many farmers became unable to afford such services, leading to reduction in their use. The privatisation of artificial insemination services has in effect increased costs, which has led to decline in the use of such services. This has led to the problem of poor quality livestock through problems of inbreeding and limited use of improved inputs. Diseases and pests also pose a challenge to the sub-sector due to weak inspectorate and quality assurance as well as lack of enforcement of the existing rule and regulations governing the movement of livestock and their products.
• The high potential for exports from livestock and livestock products remains unexploited due to inadequate capacity in standardisation and quality control as well as inadequate processing capacity. This has meant that the livestock sector is largely dominated by primary production with little processing of produce. The shortage of high quality breeding stock acts as a further constraint to the exploitation of exports from the livestock sector. The lack of quality control and standardisation of livestock products has significantly hindered access to foreign markets as local farmers fail to meet export health standards and quality requirements. Due to pressure from other competing land uses, the high and medium potential areas have been turned into growing of subsistence crops. This has meant that alternative management systems for livestock production have to be adopted. While in the high potential areas livestock production is threatened by population pressure, in the ASALs, it is problems of land degradation, droughts, and soil erosion that are the main threat. Inadequate water facilities, poor marketing infrastructure and poor animal husbandry practices as well as poor slaughtering practices limits the quality of hides for exports.
Other policy concerns in the livestock sector arise from the marketing of products like dairy. Milk marketing was liberalised in 1992, leading to the proliferation in the market of private processors and informal traders/hawkers of raw milk. Critical issues that have emerged influencing the development of the sector therefore include, marketing arrangements for private traders, product quality control and assurance as well as the management of strategic reserves. The production and marketing of beef products has been affected mainly by the collapse of the KMC. Although Kenya has the potential to meet her domestic demand for meat and realise a surplus for export, local producers continue to face problems of drought, and poor marketing outlets that limit their production. Poor timing of livestock sales, with majority of pastoralists selling their stock under very desperate circumstances, is another problem.
There is therefore need for programmes that enhance access to appropriate production technologies and inputs as well as increasing the efficiency and overall productivity of the sector.
The revitalisation of the livestock sector will therefore require among other things, the rehabilitation of marketing infrastructure facilities, facilitating the private sector to invest in both primary and secondary livestock processing plants close to production areas. It will also be necessary to develop programmes that promote and support the production of feeds that augment the conventional feeds. Reviving and privatising the KMC to provide a market outlet for livestock will also contribute to reducing the vulnerability of livestock farmers especially pastoralists whose livelihoods depend on livestock. This is especially important in addressing the problem of food security in the ASALs.
Lack of a comprehensive land use policy: This has over time led to difficulties of access and utilisation of land. The country lacks a clearly articulated land policy with the result that issues like land use, management, tenure reforms and environmental protection are inadequately addressed through the existing systems (Kenya 2001). Land is an important resource in agriculture in Kenya and lack of access to or ownership of land is considered one of the major causes of poverty (UNDP 2002). The scarcity of agricultural land makes the issue of land use policy a critical one. Only less than 20% of the country’s land surface is high and medium potential. The PRSP identifies the improvement of land uses management as one of the ways of improving agriculture.
Issues on land that are relevant to agricultural development include conflicts between different land uses due to the lack of a coordinating body that can ensure harmony between different users (Kenya 1994). Harmonisation of different development activities that can foster optimal land use and control of environmental degradation is a critical issue.
The failure by the existing land conservation policy and the need to have attendant laws to generate environmentally sound land use habits for sustainable development is a relevant concern for agriculture. There has been an over emphasis on the protection of property rights and inadequate provision for the regulation of the rights in the interest of soil conservation. This is compounded by the lack of a well coordinated land management policy with respect to various land uses. The existence of numerous legislations and complex procedures relating to plan approvals, subdivisions and registration prevent the various government agencies from keeping up with the demand for their services.
- The lack of accurate and up to date database information on land is also a critical issue. Most information on land continues to originate from the districts.
- The problems of pastoral land tenure relations, with its roots in the dispossession of pastoral communities of their lands by the colonial administration, has implications for agricultural development especially food security and sustainability. There should also be security and equity in access to and use of land in pastoral areas. There is therefore need to provide a legal framework that defines and recognises pastoral land and related natural resource rights. There is need to recognise pastoralism as a legitimate land use system as the basis for legal backing.
**Possible Policy Concerns**
- Maize is the main staple commodity in the country and therefore important for food security. National food policy and the ability to meet the country’s food security needs is therefore a major concern with respect to maize. The majority of Kenyans are food insecure due to inadequate strategic reserves in major food commodities, and lack of proper distribution systems that can facilitate the efficient movement of food commodities from surplus to deficit areas. They have no access to adequate quantities of food and even what they have access to, has poor nutritional value. The main cause of shortfalls especially in maize has over time resulted from the low use of fertilisers, lack of finance and the withdrawal of other services like extension by the government. Lack of guarantee for markets for maize produce has compounded the problem as farmers have no incentive to invest in productivity increasing practices. The incidence and prevalence of food insecurity, however, is greatest in the arid and semi-arid lands (ASALs) due to poor resource endowment and scanty and unpredictable rainfall patterns. While the area is endowed with livestock production potential, lack of markets for livestock has increased the vulnerability of pastoralists whose livelihoods depend on livestock products but are negatively affected by weather variations. This has compounded the problem of food security in the ASALs. Pastoralists often remain with inadequate livestock to sustain their livelihoods after prolonged droughts. That famine is a frequent phenomenon in the country is a source of great concern to policy makers while its regular highlights in the media reflect the media’s distaste for it. It is not easy to reconcile that in a country where agriculture is the mainstay of the economy, famine is so frequent. Some of the famines experienced could have been avoided or their impacts significantly mitigated. These include, famine brought about by drought, floods and rapid deforestation. Inadequate early warning systems, disaster unpreparedness, farming practices that do not hinge on environmental sustainability, rampant destruction of rainfall catchment areas especially through rapid encroachment of human settlements, lack of implementation of elements of the food security policy are some of the culprits of the frequent occurrence of famine. Further, poor logistics worsen famine management even with bumper harvests in the food basket regions of the country particularly the north rift. The current ravaging famine in the ASALs would have been significantly checked if logistics were right to move surplus food from the basket zones. Famine amidst plenty reflects generally on the country’s state of unpreparedness in the face of a disaster. Measures to address these handicaps and those that would match population growth to food production that include family life education - family planning - ought to be adopted.
Increasing importance of small scale agriculture in the sector, coupled with its declining productivity and low incomes are a concern especially relevant to poverty reduction efforts. The small scale sector contributes 75% of total agricultural production and over 70% of the total marketed production, reflecting the increasing importance of smallholder farms in agricultural production, and absorbs about 51% of the total labour force in the sector. Food production also accounts for a major share of small scale agricultural production (Republic of Kenya 1999). The importance of agriculture especially smallholders as a source of livelihoods in the rural areas is therefore a major concern for agricultural and rural development. This is because of the high poverty levels in the rural areas especially among smallholder subsistence farmers.
The significant involvement of women in small scale agriculture is an important factor among measures to improve agricultural performance. Women provide 75% of the labour force in small scale agriculture and manage 40% of the small scale farms. Upto 2/3 of the female population in rural areas is engaged in subsistence farming. Despite women’s significant contribution to agriculture, they face a number of constraints, especially limited access to productive resources like improved inputs, extension, and marketing facilities which limit their productivity. Institutional factors also limit women’s access to financial services. The expansion of rural investments like infrastructure is likely to have more beneficial effect on women, the majority of whom are among the.
The increasing disparities in opportunities and incomes between agriculture and rural areas on the one hand and non agricultural urban areas on the other hand is also a concern. These disparities have meant that poverty levels have continued to be higher in the rural areas where the majority of the population reside.
Environmental degradation and rising poverty is a major concern relevant to agricultural development. As agricultural land continues to be scarce, and rural poverty continues to increase, agricultural practices that conflict with the environment have increased. High levels of poverty in the rural areas, where agriculture is the main source of livelihoods, have significant implications for environmental sustainability. The poor engage in farming practices that negatively affect the environment and reduce the potential for ASALs. With increased pressure on the natural resource base and the need to increase productivity, the challenge remains that of intensifying land use while enhancing the long run productive capacity of the resource base. Low productivity, with pressure on the natural resource base has led to migration into Arid and Semi Arid Lands (ASALs) with inappropriate farming practices and negative environmental consequences. A big proportion of the country, (84%), is classified as ASALs and unsuitable for rain-fed agriculture. But even in these regions, most of the activities people engage in are agricultural. Livestock keeping predominates, with limited small-scale crop farming practiced in some areas.
**Consistency of policy concerns with SRA priorities**
The key policy concerns discussed so far are to a large extent consistent with SRA priorities. The overriding objective of the SRA is to achieve a progressive reduction in unemployment and poverty. The primary objective of the strategy is to provide a policy and institutional environment that is conducive to increasing agricultural productivity, promoting investment, and encouraging private sector involvement in agricultural enterprises and agribusiness. Important for this environment is the creation of a legal and regulatory framework that is fair to all farmers, producers, processors and marketers of agro products. Among the objectives of the institutional reform agenda set out in the SRA are: increasing productivity to lower per unit costs of production, improve the extension service system, improve the link between research, extension and the farmer, improve access to financial services, encourage growth of agribusiness, reduce taxation of agriculture, increase market orientation and improve the regulatory framework.
The objectives and policy concerns among policy makers can be discussed in terms of whether they are consistent with what is outlined in the SRA 2004-2014. These are the areas of concern for the development of agricultural sector in terms of boosting productivity and incomes, and ensuring food security, irrigation farming and enhancing diversification into non-traditional commodities.
In the recent past, efforts aimed at addressing the problems of poverty have been participatory in their approach. These include the Poverty Eradication Commission (PEC), the Poverty Reduction Strategies Paper (PRSP) and Economic Recovery Strategy (ERS), with all emphasising agriculture as the main sector both for poverty reduction and economic development. Although the SRA recognises stakeholder involvement in the policy process in the sector, it was not a result of a participatory process itself, marking its first major bottleneck on whether it will sell with the stakeholders. It thus has to be marketed aggressively so that stakeholders can buy it and take ownership of the various measures that it prescribes to revitalise agriculture. Secondly the SRA is a medium term – to long-term policy framework and should have embodied a monitoring and evaluation framework that would be used to measure its success and failure to allow measures prescribed to be refocused in light of its progress. This is another major oversight of the policy document and ought to be thought out and formalised. Thirdly the SRA lays out a massive reform initiative that requires it to have the right manpower in place for its implementation. Some of that manpower could be lacking in skills required for the successful implementation of the SRA. Capacity building for the kind of staff and skills required are not well spelt out in the document. This could bring about haphazard and inconsistent implementation of the policy framework and deny the economy of the benefits envisaged from it. Although poverty reduction has been a major objective since independence, realisation of growth even in the sector has not reduced it. Agriculture grew at an average rate of 4.7% during the first decade of independence, but declined significantly to below 2% in the 1990s and actually contracting by 2.4% in 2000 (Kenya 2001). Despite the sector’s growth during the first decade of independence, the problem of poverty continued to increase, becoming more entrenched with time. It has been argued that despite agricultural sector’s importance in GDP, the sector’s performance is dominated by a few cash crops, concentrated in the high potential areas. This has implied that only a small proportion of the population participates in its performance. Hence positive growth in the sector even during the first decade did not lead to a reduction in poverty(^2). Given that a number of initiatives have already been undertaken with similar objectives, SRA does not give a clear point of departure from these initiatives, and its value addition. Especially important is the extent to which it is participatory and encourages participatory policy processes. Pro-poor growth, targeting those activities within agriculture with the highest potential for raising rural incomes is needed to address the issue of poverty reduction.
The SRA nonetheless also recognises efforts from other sectors that are necessary to achieve its objects for example in having the right and stable macroeconomic environment, supportive services in policy analysis and research, affordable financial services, good roads especially rural access roads, rural electrification, water supply, accessible and affordable curative and preventive health care and seeking to have the resources and techniques to increase farmland under irrigation. However, it fails to recognise and build in the policy framework the ongoing public expenditure reforms that favour devolution of public expenditures to the districts and constituencies. These devolved funds are creating rural infrastructure that without them would not have been undertaken at all. Cognizance of these efforts is very important for they have the effect of opening up the hinterland and enable resources that would have been taped only expensively to be tapped relatively cheaply. In addition they also open up markets for farmers whose produce would reach destination markets with difficulty and at higher costs.
(^2) See UNDP (2002), for more detailed discussion of pro-poor growth, and agricultural contribution to poverty reduction and human development. 3. Structures and Actors Affecting Agricultural Policy
Agriculture being the dominant sector in the economy draws a lot of interest from different actors and stakeholders through the formulation of policies that affect its performance and development. In an effort to discuss the structures and actors in agricultural policy, we present a summary and discussion of two studies that have attempted to identify the main players and policy making processes.
Drivers of Change
The first report titled “Strengthening the Incentives for Pro-Poor Change: An analysis of drivers of change in Kenya” emanated from a study commissioned by DFID Kenya. The overriding purpose is an analysis of drivers of change in Kenya. To this end, the major problem focused on is the political elite having captured public institutions and resources essentially driven by motives of serving their private interests. The resulting consequences have been that “corruption has flourished, public institutions have declined, growth has faltered and poverty has worsened” (p6)
Elite Attitude to Change and Prospects
In regard to attitude to change the report laments that the very same political elite benefiting from the status quo have generally opposed desirable patterns of change. It is nevertheless the contention of the authors regarding prospects for change that the types of policy reforms required to reverse the decline, and hence for the envisaged change to be realized, are fairly well understood. This somewhat complacent position is seemingly based on the view that “better prospects for pro-poor change” were created by the election of the NARC government in 2002. The indication stated in this connection is that important reform processes are underway that could lead to improved governance and renewed development.
Analysis Framework and Approach
The study, in terms of methodology, applied the “Drivers of Change” approach adopted by DFID as an analytical tool notably in Zambia, Nigeria and Asian Countries to understand processes of change at the country level. The focus of the approach is on long term “incremental changes” taking place to interrelated social, economic, political and institutional processes that alter the context for policy making over a period of a “few decades”.
On the premise that critical obstacles to bringing about change lie in the realm of political economy and governance the study for the most part relies on political economy analytical framework. The key concept used is patron-clientelism. The rationale for the framework is on the one hand to highlight the plight of the poor and argue for pro-poor change. On the other hand, political leadership or elite and donors are identified as the main forces affecting pro-poor change. The form taken by these forces depends on the nature of incentives and restraints resulting from changes emanating from social, economic, political and institutional processes which keep altering the context for policy making. The Relationship between Drivers of Change
It is categorically stated that change processes occur within the constraints of political economy and hope expressed that donors should work with a broad range of actors to promote pro-poor change. The various actors the report identifies and processes discussed are set out in a table (p7) as follows:
Table 1: The relationship of drivers of change considered
| Contextual Factors | Institutions | Agents of Change | |-------------------------------------|-------------------------------|--------------------------------| | Globalization, trade and investment | Political process | The political elite | | Regional influences and integration | Public administration | Civil servants | | Demographic change | The rule of law | Parliamentarians | | Urbanization | Land rights | Political parties | | Deteriorating infrastructure | Ethnicity | Local government | | The rise of the informal sector | Gender | The judiciary | | Changing rural livelihood | | The military | | Human development | | Civil society organizations | | HIV/AIDS | | Trade unions | | | | Academic and policy research | | | | units | | | | Faith groups | | | | The media | | | | The private sector | | | | Donors |
To summarize, three types of drivers identified that may drive or block pro-poor change are categorized as follows:
i) Long-term process of social and economic change-referred to as contextual factors, globalization, urbanization, human development etc.
ii) Changes in the workings of institutions including political processes, ethnicity, gender, etc.
iii) Reform minded organizations and individuals – referred to as agents of change notably the political elite, parliamentarians, political parties, etc.
However, in the presentation in table form, drivers of change have essentially been listed without clear indication of relationships between the various actors and more so actors across the three categories. The listing could have been more analytical taking into account the fact that policies are relevant to drivers of change to different degrees depending on the particular issues at stake. It is therefore essentially drivers of change, for whom pro-poor change policies are relevant, in other words those affected, who are likely to get involved in that particular policy formulation process. A case in point is agriculture policy affecting virtually all the actors since agriculture is the dominant sector in the economy and the majority of the poor live in the rural areas and struggle to earn a living from agriculture. In contrast, policy on tourism affects a relatively limited number of drivers and smaller percentage of the Kenyan population. Furthermore, certain policies are of immediate and direct consequences in improving conditions of the poor, for example land tenure reform leading to landless poor having access to or owning land for agricultural production to satisfy a critical basic need food.
It would therefore seem worthwhile for understanding relationships between drivers of change, their policy moves as well as policy actions and outcomes, that analysis does not have to aim at a comprehensive listing of drivers of change. Rather, analysis should be directed towards specific drivers of change for whom issues/problems in agriculture policy area/sector, for example, are of relevance and will therefore participate in that policy process. This is simply because for them stakes are particularly high in this policy area and will direct greater effort and focus including mobilization of resources to realize the policy outcome in their interest. They may of course participate in the policy process for other areas but this invariably will be to a lesser degree depending on the nature and extent of relevance of the policy issues.
A focus on agricultural policy also readily brings to mind other contextual factors not addressed in the analysis such as natural resource base including arable land, grassland, water, climate, etc, environmental degradation through soil erosion and deforestation and a rural economy with an enduring subsistence subsector. The implication is a revision of the drivers of change listing to bring out key factors and various actors in the agricultural policy process. The ministries of agriculture and livestock as well as cooperatives are in fact leading institutions together with their statutory boards, parastatals and cooperatives. At the same time, as individual actors in the policy process they are also top of the list of agents of change in agriculture. This is in contrast for example to the military, political parties, the judiciary and to some extent trade unions. The argument in a nutshell is that there will be varying configuration of actors for different policies even the various pro-poor policies.
Agricultural Sector Perspective of Drivers of Change
It is granted the drivers of change study focus was not directed to the agricultural sector. This could have logically limited the scope of actors relevant to this agricultural policy process considered. The picture however needs to be completed in view of our concern with agricultural policy formulation. In the case of contextual factors there is a glaring omission of fundamentally important factors some of which have actually been referred to peripherally as exogenous shock, for example drought (p8). In the same vein, the authors aim at mapping out social and economic trends but leave out the historical origins of policies and factors therein. Post independence Kenyan policies especially for agriculture, and specifically land, have roots in the colonial settler economy. There is for instance historically entrenched policy dichotomy for estate commercial farming and smallholder farming mainly for subsistence. The implication is to take into account the historical dimension and consider historically derived policies/acts as contextual factors. These types of policies call for change in the first place for drivers of change to have an impact.
In relation to demographic issues critical concerns comprise first the fact that poor family households are large and those in the rural areas either have no land or the land has been subdivided into units that are no longer economically viable. Secondly, there is a fast-growing number of female-headed households not owning production assets and living in poverty. Thirdly, population settlement has virtually followed geographically suitable zones for crops and livestock under rainfed agricultural production. Lastly, regional dimensions of poverty in Kenya clearly shows that the pattern of poverty countrywide coincides with the historical population settlement along ethnic lines.
The deterioration of infrastructure has increasingly become a major hindrance to development initiative in Kenya generally and is indeed turning out to be a major stumbling block to pro-poor change. Infrastructure constraints to agricultural concerns in particular and overall rural economy development is a fundamental consideration. A key concern in this regard is expansion and proper maintenance of various modes of transport and communication for adequate coverage of the rural areas.
The growth of the informal sector and specifically creation of employment is now a key feature of Kenya’s economic development. At the same time the report correctly points out the rise of the informal sector is an indication of failed development. The research evidence available points to informal sector enterprises being less productive, paying lower wages and being more precarious than formal sector firms (Bigsten et. Al. 1999; Alila and Pedersen 2001). As a contextual factor in addressing pro-poor change, it is necessary to go beyond the now familiar general policy prescriptions of improving access to credit, regulatory requirements, business and skills development, etc. It is necessary in addition to take into account first, which enterprises the poor tend to engage in given the diversity and heterogeneity of informal sector enterprises. Secondly, the location of enterprises, mostly in the rural areas and the key role played by agriculture, both commercial and subsistence agriculture. Thirdly, the fact that the majority poor live in the rural areas and comprise women, youth, landless and pastoralists. These issues taken into account are pointers to the fundamental contribution of sound agricultural policy and development in the rise of the informal sector.
The discussion on human development as a contextual factor tends to concentrate on improved health and education which it is argued raises labour productivity and helps empower citizens to engage in political processes. A direct link could be made between the livelihoods discussion raising issues of increasing inequality, landlessness, falling food production, HIV/AIDS pandemic etc to human development, in the broader context of human capital development. Thus the pressing policy issues of agricultural development regarding productivity, technological change, access to credit and inputs etc are adequately captured. Also to be taken into account is the important dimension of social capital formation closely related to access to credit and kinship community organization for participation in the agricultural development process.
Poverty Profile
The brief statement on poverty profile highlights the key pertinent issues including incidence of poverty mainly in the rural areas; location of the poor in particular geographical zones including ASAL, western Kenya and central highlands; association of poverty with large households, female headed households, how educational status and households reliance on agriculture and informal sector. It is important to point out in relation to female-headed households being poor that a sizeable proportion are in subsistence agriculture in which most rural poor are found and is the only way of life known to them. In addition, the fact that most of the women may not generally be involved in production decision-making has a consequence of low returns to farming which in turn aggravates poverty.
It is decried that Millennium Development Goals (MDGs) as pointers to poverty reduction efforts face grim prospect that they will not as a whole be realized in the foreseeable future. This is a damning worry especially in the African context including Kenya. The key problem areas in effecting pro-poor change leading to meeting these goals are well recognized by the Kenya government in her policies on issues of broad-based economic growth, access to markets, services and assets, political and social empowerment, etc as the report explicitly states (p9).
Regarding economic growth it is stated that gains made in growth during the first two decades have been erased over past twenty years of stagnant or negative growth. There is definite truth in growth decline in recent years for the whole economy and particularly, the agricultural sector overall. But certain subsectors of agriculture, notably horticulture and also tea, have continued to witness gains and in the past three or so years the whole agricultural sector has moved out of the doldrums of negative growth. All is therefore not lost or erased, what is of grave concern is that there has been increasing inequality. A small group continues to benefit disproportionately and a few accumulating more wealth while the majority population becomes poorer.
Political context of Agriculture Policy making
The report while expressing optimism regarding policy reform with the installation of the NARC government in 2002 at the same time had deep rooted reservations. It was pointed out first, that only fragile gains have been made and these may not be sustained in view of unstable NARC coalition politics. Secondly, the report surmised that political elite could revert to “previous behaviour” with adverse consequences for growth and poverty reduction. It would seem that the optimism, also expressed by most political analysts, was borne out of the political euphoria that brought NARC to power but has fast melted into disappointment almost by the day due to crises in the political, economic and even social sphere. The reality unfolding has revealed that it is the reservations that actually contained valid predictions.
The governing coalition has all along been bedeviled by irreconcilable differences essentially because of misunderstandings on power sharing. The initial claims that contradictory public pronouncements on policy by ministers and senior civil servants were due to a different style of leadership and administration, compared disparagingly to Moi regime, that delegates actual authority to ministers has been proved false. The political power game has magnified the differences to personal and family level and the coalition is virtually dead. The implication of this very fluid trend for policy is ever changing power sharing arrangements yielding unstable political alliances that is also transforming the political landscape of patron-clientelism.
In regard to the agricultural sector specifically, a number of policy reforms undertaken especially in the 1990s shows some measure of acceptance of change by the political elite rather than complete opposition to change to preserve the status quo. This implies some knowledge of the reforms and also a certain measure of political will but not necessarily a complete understanding of change especially those that were imposed. However, full understanding of envisaged change may essentially be at the level of top civil servants policy makers, and in this case a possible constraint is that their policy preferences may not be in conformity to the politicians’ policy priorities. It can therefore be said generally that the political elite at the minimum are aware of the changes, they should know of most of them but not necessarily have a full understanding. Furthermore whatever the level of understanding they could even be safeguarding their political interests along party, factional, ethnic lines etc.
The politics of the agricultural sector and indeed most sectors of the Kenyan economy are greatly influenced by patronage revolving around the presidency and his cabinet. This can be traced way back from the Kenyatta through Moi regimes and has assumed greater proportions in the present Kibaki regime evidenced by mega corruption in the sugar industry and fertiliser trade. The analysis of drivers of change however puts emphasis on political elite apparently viewed as a homogenous entity and considered the crucial determinants of change in a patron-clientalist framework. There is no doubt the political elite is not homogenous and the diverse factions due to differences in wealth and political clout need to be recognised to bring to light leverage in the policy process. The agriculture sector policy is a good example where there are diverse interests among various policy actors based on geographical climate regions which determine agricultural commodity produce and marketing and also coincides with ethnic origins. It is these ethnic, producer and trade interests, both African and Asian that place policy demands regarding coffee, tea, horticulture, sugar, pastoralism, etc directly to the president or through power brokers. It needs to be emphasised in this connection that the political elite acts in alliance with economic and social elite and not in isolation. Furthermore in some cases these alliances have a long history although there is emerging realignments of actors in recent years. A significant indication of this trend is cooptation of former KANU regime key players and power brokers in the agricultural process into the NARC regime. The consequence is continuity rather than significant change in the agricultural policy.
What shapes the policy environment? The paper by Smith and Karuga (2004), reports on the study commissioned by the UK Department for International Development (DFID). It examined the factors that shape the policy environment in Kenya’s agricultural sector. A number of factors are identified as shaping policy in the sector. The paper argues that the patrimonial state in Kenya, which is typical of many states in Africa, has profoundly influenced agricultural policy formulation processes over the past 40 years of independence through a number of ways, namely, partisan exercise of presidential powers, linkage between ethnicity and agricultural production systems, the quest for rent extraction and patronage by favoured groups/individuals, what is referred to as the anti-poor bias, the disregard of evidence based policy formulation, and expectation of access to donor funding.
i. The influence of the patrimonial state Kenya’s political system concentrates power in the presidency which means that virtually every major policy during formation, adoption and implementation has required presidential intervention if not approval. This has been the case for all the three regimes, from the Kenyatta, through Moi and now Kibaki NARC regime. In the various stages of policy formulation different policy actors at national and sub-national levels have to recognise the pivotal role of the president and his key advisers and close associates revolving around the so-called “kitchen cabinet” who control accessibility to him. Kenya’s political system, with the concentration of power in the presidency, determines how policy is made. The executive commonly has the final say on policy, which in the case of the presidential directive particularly disrupts even earlier policy positions. The directives have to be implemented and if not earlier budgeted for, have to be fitted somewhat in the existing budgetary framework (Smith and Karuga 2004).
Agricultural production systems in Kenya are defined by the country’s diverse topography and rainfall patterns into a number of agro-ecological zones suitable for different agricultural production systems. It has been argued by some that these productions have over the years been associated with particular ethnic groups. Economic rent and patronage has also shaped the agricultural policy environment. Rent in the agricultural sector is created by artificial shortages through licensing and restrictions applied to the production and marketing of agricultural commodities, inputs and services. Most effectively, patronage is dispensed by granting licences, or the authority of granting licences and hence the rents, to favoured individuals and/or groups. This mainly explains the reason why the heavy regulatory framework and government involvement with almost all agricultural legislation is maintained. This was first used by the colonial regime where the purpose had been the protection of European settler farmers, but it is a phenomenon, which has persisted with the subsequent regimes after independence.
Smith and Karuga (2004) argue that this relationship between ethnicity and agricultural practices has shaped agricultural policy to a large extent whereby policy formulation processes at times have tended to be influenced in favour of and/or neglected given products apparently to favour or otherwise penalise given ethnic groups. There is however little empirical evidence to this effect. This is essentially attributed to historical factors underlying cash crop production for export. In the post independence period, these factors have been used to meet parochial ethnic interests.
It is however important to observe that other factors apart from the patrimonial state have played a significant role in influencing agricultural policy. The effect of domestic agricultural policy especially on export crops have largely been determined by external forces especially conditions in the international markets. Coffee is a case in point where conditions in the international coffee market and weather conditions in Brazil have influenced the benefits of Kenya coffee farmers. The collapse of the International Coffee Agreement partly contributed to the decline in the coffee sector. One of the main arguments put forward by the proponents of agricultural marketing reforms in the late 1970s, was that agricultural sector was overly penalised especially through the domestic marketing system, to the extent that agricultural exports suffered from negative net protection. This contributed to the stagnation of the sector. Biased agricultural development policies also emphasised only high potential areas, at the neglect of low potential and marginal areas. The diverse agro-ecological potentials have led to differences in opportunities influenced by various economic forces. These forces have over time led to concentration of economic activities in some areas compared to others. High agricultural potential areas have more investments and income earning opportunities relative to the low potential and marginal areas. The nature of policies pursued and implemented overtime is a major factor in this regard. Policies especially on investment and agricultural development have tended to be biased towards high potential agricultural areas, and in certain cases specific geographic areas. This has resulted in wide regional differences in access to infrastructure and certain agricultural services (UNDP 2002).
The patrimonial policy-shaping environment in the agricultural sector has not been pro-poor. Little incentives have existed for the Kenyan political elite to listen to the poor. They are basically considered when political support is sought and during such times the elite resort to pro-poor populist policies, but which they quickly forget once political power is attained. The result of this has been that rents have been extracted regressively from the poor directly through lower farm-gate prices for their produce, higher prices for food and inputs and indirectly through lower wages and/or rent for land.
Other factors identified by Smith and Karuga (2004) as having played some roles include the political economy of agriculture and donor assistance priorities. The first phase of the Kenyatta regime displayed signs of genuine interest in farming and the success of it, all embodied in the vision to reduce poverty, ignorance and disease. At the start of this phase, technocrats comprising Kenyan nationals and expatriates, worked with the political elite to formulate and implement policy. Land settlement schemes and tenure policies resulted in notable success in this phase. The development of smallholder farming especially on cash crops through the purchase of land, provision of support services, like research, extension, animal health and credit received considerable attention. The initiatives made to evolve agricultural policy during this period were demand driven responding to local stakeholder needs. From then onwards, most policy initiatives have been supply driven and significantly influenced by donors, reaching a climax in mid 1980s with the introduction of Structural Adjustment Programmes (SAPs). Nevertheless, the emphasis on import substitution industrialisation strategy adopted over the period to the mid 1980s, undermined the sustainability of achievements realised in agriculture during the first decade of political independence.
The argument has however always been that during the post independence period, the policies adopted penalised agriculture through the levying of various taxes especially for the export commodities which suffered from negative net protection. The over protection of industry also penalised agriculture through negative terms of trade between agriculture and other sectors. These biases can be seen as contributing to relatively high levels of poverty in the rural areas where agriculture is the main source of livelihood, and by extension, high inequalities between rural and urban areas. The penalisation of agricultural exports, together with the protection for import substitutes that failed to lead to increased domestic efficiency in production, were some of the main arguments for structural adjustments programmes initiated in the late 1970s.
It has also been argued that the failure to sustain achievements made in agricultural sectors during the first decade can be attributed to a number of other factors. These include the end of easy options like no breakthroughs in agricultural research like high yielding varieties, no room for further subdivision of large scale farms, decline in provision of extension services and inputs and the decline in donor support for targeted agricultural programmes. Immediately after political independence, the strategy for the development of agriculture as outlined in the Sessional Paper No. 10 of 1965 was to revolutionise agriculture through provision of extension services, training, and introduction of modern farming techniques. This philosophy therefore influenced subsequent agricultural policies as reflected in various policy documents. A number of special development programmes, were initiated largely with donor support to enhance the development of agriculture and the rural areas in general. A careful review of the initiatives however show that they suffered from a number of policy weaknesses. These include the insufficient attention to involve the stakeholders and lack of coordination among different actors. Another factor is that most of these initiatives were donor driven and were therefore not integrated into the long term development country’s agriculture (UNDP 2002).
In the mid 1970s and 1980s Smith and Karuga (2004) argues, considerable donor-driven interventions influenced policy. The district focus for rural development program (DFRD), akin to the current devolved funds, established in 1983 was preceded by considerable donor investment in Integrated Rural Development programmes. Donors also invested substantially in rural infrastructure, like rural access roads, storage facilities, production and marketing facilities like sugar and coffee. Disappointingly, this period also saw increased political patronage and self-interests of the elite seriously eroding interest in policy advice. The structural adjustment programs (SAPs) of the 1980s for the agricultural sector focused on market liberalization and price decontrols, which were expected to reduce opportunities for rent extraction through the marketing chain by the elite. O’Brien and Ryan (2001) considered the attempted reforms on agricultural pricing and marketing as the most difficult era of policy reform throughout the SAPs period. It created mistrust and the highest level of misunderstanding between the government and donors and represents the area where the gap between policy formulation and implementation was widest. Implementation of reforms in agricultural sector were largely tied to release of donor aid.
The next phase of the 1990s was one of historic reduction of donor funding labelled by some the “donor-do-nothing phase”. Multilateral donor support in particular was withdrawn in 1991 due to poor governance and corruption issues. At any rate, considerable policy related activities in the agricultural sector such as price decontrol, market liberalization and trade policies were undertaken during this time. Elimination of price controls in 1994 marked successful policy reform efforts. In the same year, the government and a joint donor group began an ambitious reform agenda in the agricultural sector to establish an agriculture sector investment program (ASIP) - a holistic financial and operational sector support policy. The intention regarding ASIP was to improve the effectiveness of donor assistance by progressing from project-based approaches to broader forms of public expenditure support. However, the unfavourable economic and political environment in which the ASIP was initiated resulted in failure and poor outcomes.
Important lessons were, however, drawn from the failed initiative, which are relevant for current agricultural policy formulation. First lesson learnt was that it is extremely important to cultivate local ownership and commitment to policy reforms or else they fail. The donors did not attempt to cultivate local ownership either within government or the wider community for the reforms they wanted introduced. Second local factors like the political economy that could have been crucial for the successful implementation of the proposed policy reforms were neglected, downplayed and ignored. Third, donors made the mistake of not identifying and establishing access to key decision makers. They often thought that by talking to the government they had gained this access only to dawn later on them that they were in deed talking to individuals without influence in policy formulation, a fact that is typical of patrimonial states. Fourth, it was learnt that it is important to fully cost policy proposals and initiate methods to integrate the proposals into the budgetary process and last, donors should appreciate capacity gaps in civil service and the necessity, therefore, of introducing a phased out approach to complex policy issues.
ii. Agricultural Sector Policy Processes and Actors
The emergent phases in the political and economic policy environment in Kenya as presented by (Smith and Karuga 2004) can be seen as a reflection of the changing roles for various actors, institutions and processes in agricultural policy initiation, formulation and implementation. On that basis, five plausible forms of policy initiation and formulation process can be distinguished. They include bureaucratic initiatives both requiring and those not requiring cabinet approval; executive directives; budget policy decisions; other domestic policy initiatives; and external policy initiatives.
At the bureaucratic level, like at the directorate or permanent secretary level, a number of policies are initiated, formulated and approved by the minister. Before 1985, it is claimed; most policy formulations were bureaucratic at this level. Inter-ministerial co-ordination at the permanent secretary (PS) level with adequate consolations with the Treasury for the allocation of funds for their implementation predominated. Over the years, however, this approach to policy initiation and implementation has been continuously abandoned. There are also some important policy decisions initiated by the bureaucrats but which need them to write a cabinet paper for their approval. Policy initiatives that need new legislation or major changes in existing legislation before they are implemented would require that they be approved by parliament, accompanied by the release of a Sessional Paper.
Some policy decisions are executive presidential directives with the role of the technocrats being to accommodate them within the resource envelope and methodology of implementation. Commonly, such decrees are based on vested interests or are reactions by the president or executive to either previous or perceived crises. The bureaucracy thus simply rubber stamps the directives.
Policy decisions directly linked to resources are embodied in the government annual budget. The budget represents a summary of presentations made by ministries as to the programs and projects for funding in the evolving fiscal year. It will thus entail policy decisions of every ministry. They are usually likely to be implemented because they have resource allocations attached for their implementation. Any policy, therefore, requiring government resources and approval to be implemented, must be accorded due recognition in the budget. Policy decisions affecting agriculture are also made during the budget preparation process. The medium term budgetary expenditure framework (MTEF) budgetary process that the country adopted in 2001 has an elaborate process through which concerned ministries lay out their policy framework to their budget and plan. The ministry of agriculture (MOA) has to make policy decisions it perceives can best enable it achieve its objectives, not only annually but also in the medium term that captures two outer fiscal years. This should make annual policy proposals for which resources should be allocated be in line with the broader policy objectives captured in the outer two fiscal years. The budget making process also provides for sector hearings giving an opportunity to the other sectors whose decisions may have some impact on agriculture to also contribute to its decision-making within it. Nevertheless, in the budgetary process it is those with the final say on resource allocations that determine which policy decision will be implemented because most policy decisions require resources to implement. The Ministry of Finance is therefore crucial in the realisation and implementation of policies.
Domestic policy initiatives emerge also from outside the arena discussed so far and are at one stage incorporated into the budgetary process. Such is the case of the development planning process. Although thought of as a normal policy process, many are the policies proposed in the development plan that are never implemented because resources are not mobilised or allocated for their implementation in the budget. This is also the case with the sessional papers or documents arising from task forces. Other sources of domestic policy initiatives include motions by MPs in Parliament, which get the acceptance and approval by key decision makers in the budgetary process.
The long history of foreign aid to Kenya has meant that there are policy initiatives that are typically donor driven. They are formulated and initially implemented through donor financed efforts like the project implementation units (PIUs) or non-governmental organisations (NGOs) and are funded outside the national budget. Significantly, there are some that are taken over by government and resources deployed for maintenance.
The roles of the bureaucrats, donors and other players have, however, changed over the years. The bureaucrat’s role has diminished increasingly after 1985 with policy decisions being shaped more by the executive’s views instead. The executive policy directives represent “road side,” ad-hoc and “spur of the moment” approach to policy making, which has been represented difficulties for policy formulation since they lead to confusion and contradictory policies and at times completely derail budgets. These executive declarations have persisted and traversed the three post independence political regimes.
The role of technocrats who are involved in formulating agricultural policy have been marginalised. The circle formulating policy has been limited in size, concentrated in the ministry of finance (MOF) and the Central Bank of Kenya (CBK). Even within the MOF and CBK the policy formulation clique has been quite small. The MOA technocrats consider their inputs ignored by MOF since their budget submissions detailing priorities for the ministry get reordered without consulting with them. Instead they resorted to lobbying MOF decision makers for policies they would wish to implement accepted. O’Brien and Ryan (2001) however note that economic policy formulation group, within the policy formulation circle of the CBK and the Finance ministry has been small with controlled internal discussions. One of the reasons given for this closed approach has been the passive approach to earlier consultations from other ministries. Another reason given is the desire by the core policy makers to prevent potential losers from the policy from mobilising opposition.
The policy formulation process has also been influenced by technical assistance (TA). TA has enabled the training of key policy advisers in the core ministries, especially public sector economists in policy analysis. Nevertheless, their impact in policy formulation has been impaired by the inability of the government to retain them in public service. They have moved out of public service due to low pay, poor leadership and inadequate resources with which to operate, leading to low morale, and productivity. Technical assistance has however been associated with a number of factors affecting development policy. These include coordination of resources related to technical assistance due to multiplicity of donor objectives, preferences and strategies. Donor centred development process also weakens domestic ownership and therefore integration into the national policy objectives (UNDP 2003).
Also emerging in the recent past are policy decisions that receive inputs from enhanced voices of parliamentarians, the private sector, civil society and smallholders as the process becomes more systematic, transparent and inclusive. In the PRSP there was wider stakeholder policy considerations discussed right to the village level in some districts. And when the NARC government came to power in December 2002, the preparation of its blue print for economic revival, the Economic Recovery Strategy for Wealth and Employment Creation (ERSWEC) which addressed policy issues in the agricultural sector as well, received widespread stakeholder consultations with parliamentarians, donors, trade unions, professionals, financial institutions, industrialists, ASAL representatives amongst others. The policy process has also benefited from the 1993 reconstitution of parliamentary committees under the umbrella Liaison Committee chaired by the Speaker of the national assembly. The Agriculture, Land and Natural Resources Committee is tasked to process and/or vet proposed legislation from all the six ministries involved in the sector. Parliamentary caucuses established from 1999 to seek opportunities for commodity producer groups and stakeholders are also concerned with policy formulation. For instance, caucuses have been created comprising MPs from areas growing three commodities, namely, the Coffee and Tea Parliamentary Group (COTEPA) and the Sugar Parliamentary Group (SUPA). They influence policy on these commodities, especially when put under pressure by their constituents to change or improve policy guiding the production of the affected commodity.
Along the same vein have emerged various civil society interest groups, which are comprised of more farmers. Those already created include SUCAM (Sugar Campaign for Change in Western Kenya), NGOMA (“Ng’ombe na Mahindi” to cover maize and milk in the North Rift, SAWA (“Sauti ya Wafugaji” – North Eastern pastoralists, MAMBO (“Matunda na Mboga” for horticulture in Eastern province. Currently efforts are underway to unite the sub-sectors into a national umbrella body with representation from all the groups to enable them deal with issues that are cross-cutting that include policies and a common voice in the policy process.
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3 Agriculture, Livestock and Fisheries Development, Co-operative Development and Marketing, Lands, Water and the Environment and Natural Resources The main actors in the policy making process can therefore be identified as the government, parliamentary caucuses, donors, and the civil society organisations. Prior to the era of reforms, the government dominated the allocation and management of resources in the country. The government established public or quasi-public institutions operating like monopolies or regulatory bodies in agricultural markets. This meant limited participation by other stakeholders especially the private sector, the civil society as well as the general population in the development process. Economic policy making in the country in the early post-independence years was therefore highly centralised and was for a long time limited to government ministries and parastatals both at sectoral and national levels, with limited dialogue and interaction with other stakeholders. It has further been argued that even within these government institutions, the policy formulation group remained narrow.
During the first decade of independence, the focus of agricultural policy was on land ownership and resettlements, emphasising the controls on marketing and pricing of agricultural commodities as well as government support for agricultural services like research, extension, and livestock production inputs. These largely contributed to the success in the performance of the sector witnessed during this period. By late 1970s, serious problems had emerged especially with payment and marketing of most commodities, with official involvement in the marketing and pricing viewed as possible sources of operational inefficiencies.
Government authority over the economy was also increased through the regulatory framework and steady expansion of controls on macro economic variables like domestic prices, interest rates, foreign exchange, and external trade. Policy making during this period was therefore largely concentrated around the government. In the wake of reforms however, there has been increased focus on the role of other actors, with sustained advocacy for participation in resource mobilisation allocation and management. Since the commencement of the implementation of the District Focus for Rural Development (DFRD) strategy, the government has continued to emphasise the use of participatory methodologies in programmes and project implementation (Republic of Kenya 2002).
Donors played an important role in policy reforms in the agricultural sector, especially in the implementation of reforms in agricultural marketing and prices, whose implementation were sometimes linked to donor conditionalities. Policy dialogue between the government and both multilateral and bilateral lenders played an important role in indicating approaches to some of the problems identified in the reform process. The growing importance of programme and structural lending has therefore had implications for the role of donors in policy formulation.
Through technical assistance, a cadre of economic advisors have been provided to the core ministries including agriculture who have been involved and influence the direction of policy thinking in the country. It is argued that some technical assistance advisors have had positive impact on the economic policy making process in the country (O’Brien and Ryan 2001). Lack of clear guidelines the utilisation of external
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4 O’Brien F.S and T. C. Ryan (2001). Kenya. In. Devarajan S., D. Dollar and T. Holmgren (eds). Aid and Reforms in Africa. Lessons from ten Case studies, the World Bank, Washington D.C. resources through technical cooperation has at times led to lack of effective implementation of development policies.
The civil society organisations through empowering of grassroots organisations mobilise resources and advocate for issues affecting their members to be included in policy formulation.
In general, when analysing policy processes in the country, it is important to note that one of the problems with effectiveness of policy has been the lack of implementation of policy pronouncements. As a result, the policies that have been initiated are not reflected in the actions in terms of resource allocations and commitments. While policies in the 1960s and early 1970s were mostly implemented, this has not been the case over time.
Government policies with respect to agriculture and rural development in particular, have suffered from lack of common objectives and coordination among the implementing ministries. Some policies have also tended to respond more to short term interventions, rather than focus on long term sustainable development. In addition, institutional failure due to lack of capacity by the private sector to take over functions by the state after liberalisation, has also been a problem.
The conduct of the policy process in agriculture, therefore, is not a straight forward formalised step by step exercise involving defined and recognised institutions. It attracts various actors defined by politics, geographical settings, interests, gender and donors among others. The process involves the central government, ministry of agriculture, the executive, parliament and its caucuses, civil society (NGOs, FBOs, CBOs, trade unions, etc), the budget process, development partners, interest groups, the farming community, ethnicity and even the political system. The decisions that influence and/or affect agricultural policy formulation and implementation are made by these actors interactively or singularly.
iii. Emerging Agricultural Policy Formulation Processes Since the commencement of the implementation of the District Focus for Rural Development (DFRD) strategy, the government has continued to emphasise the use of participatory methodologies in programmes and project implementation. Through the DFRD, central government departments are all represented at the district level, leading to decentralisation of power and management of responsibilities. However, in certain cases, the decentralisation of decision making to the district did not take place (UNDP 2003). But still, it remained largely broad and was also relatively more participatory than was the practice in previous years.
Much more recently there are indications that the policy formulation process is becoming more systematic, transparent and inclusive. There has emerged a relatively greater role for various stakeholders and a voice for parliamentarians, the private sector, civil society and the poor. A number of policy frameworks have evolved that are the result of largely consultative processes. The government subscribed to the Poverty Reduction and Growth Facility (PRGF) in 2000, and started to prepare the Poverty Reduction Strategy paper (PRSP 2001-04). This, however, was never completed due to the change of government in 2002. In a deviation from the past, however, there were widespread stakeholder consultations nationally going down to the grass roots. The PRSP provided an opportunity for pro-poor growth through the participatory nature and direct budgetary allocation to priority sectors. The Economic Recovery Strategy for Wealth and Employment Creation (ERSWEC) was produced in 2003 to revive the economy. Again there were widespread stakeholder consultations with parliamentarians, donors, trade unions, professionals, financial institutions, industrialists, ASAL representatives amongst others but also considered widely ideas contained in the PRSP, NARC manifesto and post-election action plan.
The Strategy for Revitalising Agriculture (SRA 2004) was started to complement the ERS in agriculture and emphasises public-private sector partnerships to facilitate competition, enhance markets, raise efficiency in the usage of resources and improve private profitability. It recognises only two roles for government: to provide a limited range of goods and services and to carry out a reduced range of regulatory functions that cannot be enforced by private self-regulation and industry code of conduct. However, unlike the other policy framework documents before it that were participatory, the SRA embodied no stakeholder consultations. However, this was due to speed with which it was formulated. It now nevertheless faces the challenge of developing stakeholder ownership. In spite of this, the SRA has the advantage of a well-defined medium- to long-term framework for policy formulation and implementation in the agricultural sector.
The adoption of the PRGF by the government required it to formulate and implement its budgetary process through the Medium Term Expenditure Framework (MTEF), which seeks to link policy, planning and budgeting in order to improve budgetary outcomes. Its main objective is to link strongly the annual budget to national development policies and align expenditure allocations to national priorities, outputs and outcomes. Because the SRA outlines the agricultural sector priority areas set out in the ERS, the MTEF process ought to allocate resources to these priority areas in agriculture for their realisation. However, for this to be achieved it would require the technical inputs of staff at the ministry together with the sectors’ advocacy groups who are both well trained to analyse budgetary issues and formulate budget proposals for the sector.
Policy making in general and within the ministry in particular, is tending towards evidence-based findings from research undertakings of local consultants, universities and policy research institutes (PRIs), which policy formulation had made very limited use of in the past. The importance of policy based on evidence has grown with the establishment of PRIs, namely, the Institute for Policy Analysis and Research (IPAR), the Kenya Institute for Public Policy Analysis and Research (KIPPRA), the Institute for Development Studies (IDS) of the University of Nairobi and the Egerton University based Tegemeo Institute of Agricultural Policy and Development. Although Smith and Karuga (2004) argue that a general perception tends to persist of low demand for evidence-based policy analysis and formulation due to the fear of loss of power, influence, current employment and even economic rent through informed policy reforms, there is some shift towards this direction given that some ministries and other private organisations make use of the PRIs as much as they can to inform their policies. The emerging policy formulation process in Agriculture, therefore, attracts various players who will have to arrive at various policy positions consultatively and in a participatory manner. The MTEF budgetary process will be required to allocate resources as per the agreed priorities amongst the various stakeholders. In addition, policy formulation will benefit more from evidence generated from research thus PRIs are going to play an increased role in the policy formulation process in agriculture than before.
iv. Case Studies
The emerging trend in the policy formulation process points to a more participatory, consultative and inclusive development process. This has highlighted the role of different stakeholders in the initiation and implementation of development projects. This links with the shift towards a strategic focus on wealth creation and poverty reduction through pro-poor growth. A number of initiatives illustrate these emerging processes. Two case studies are presented below that illustrate such initiatives.
The Millennium Villages Project
The Millennium Villages Project is a donor supported initiative that emerged after the SRA had been produced. Although it addresses issues raised in the SRA such as the objectives of the agricultural sector, these were not primarily the goal. However, those goals pertaining to the agricultural sector find themselves embodied with those of the project. These include reducing the number of those suffering from hunger, increasing agricultural productivity, output and incomes, developing supportive rural infrastructure, enhancing stakeholder involvement in the policy process and ensuring food security.
The MVP applies all the MDGs targets agreed upon by the UN member countries aimed at reducing poverty. The targets for all the goals represent a holistic package of site-specific interventions for 12 impoverished villages in Kenya, Ethiopia, Ghana, Malawi, Mali, Nigeria, Senegal, Rwanda, Tanzania and Uganda. Kenya’s Sauri sub-location was selected in July 2005 to be the first Millennium Research Village. It comprises 11 villages hosting 5000 people within Yala Division, Siaya District, Nyanza Province in the western region of Kenya.
The principal objective of this project is the eradication of absolute poverty by 2025, but with a medium term goal of cutting it to half by 2015 through the holistic application of the MDGs targets. It is designed to find a model to tackle poverty at the village level. Poverty, however, is relative and the poor who are targeted by the project are the “poorest of the poor” generally referred to as the “extreme poor” or the “absolute poor”, who comprise one sixth of humanity and cannot meet their basic needs of survival unaided. They live on less than US $1 a day and all reside in developing countries enduring below subsistence levels of living.
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5 The Earth Institute (2005), Annual Report: Millennium Research Villages. The First Year: July 2004 – June 2005, Columbia University, December. In recognition of this tragedy engulfing a sixth of humanity, the Earth Institute came up with this project to assist them come out of the poverty trap and make first steps towards development. The Project is conceptualised such that the local governments and villagers work in partnership with the MVP in a comprehensive plan to place necessary investments in critical, life-saving and practical interventions in agriculture; education; health; nutrition; energy; transportation; water; sanitation; and the environment to tackle the inter-related aspects of absolute poverty, namely hunger, disease, lack of access to education, clean drinking water, poor sanitation, poor infrastructure, etc. The project works with investments of about US $50 – US $70 per person per year and calls for investment in what is termed the “big 5”, which include investments in agriculture, basic health, education, power, transport and communication, and safe drinking water and sanitation.
At Bar Sauri, the millennium village, these investments have been made. Smallholders have received inputs namely; fertilizer, seeds, and extension services. There have been reports of bumper harvest from the village, implying that increased productivity in agriculture, increased agricultural output, food security and a reduction in the number of the hungry in the village has improved and with it a fall in poverty levels. The MVP has been seen as an example of a donor initiated and implemented process, but one that works with local stakeholders, the government and local villagers all of whom act to complement donor resources financially or through own labour.
The villagers of Bar Sauri are impressed by the outcome of this project. They have had a bumper harvest; have new and renovated dispensaries with staff and medicine; and their rural access roads have seen some improvement. Improved access to health increases agricultural productivity through a healthy labour force. Such efforts have the potential to sustain long term agricultural development and should therefore be facilitated. With their anticipated ripple effect from the epicentre and spreading outwards, the impact would be significant in the outer years and especially if sustainability could be achieved. Being a pilot project, however, the currently visible achievements could be short-term for the period of the project. Even the anticipated ripple effects entailing the multiplication of similar projects elsewhere, could be a pipe dream because their attainment are largely pegged on availability of financial resources. The major challenge, therefore, remains how to sustain the gains into the long haul which would eventually make the intended beneficiaries self-reliant.
At the same time, the short lifespan of the project also means that its weaknesses have not emerged and that the jury is still out. The short lifespan does not enable a critical assessment of the project’s impact in the neighbouring villages. The anticipated impact is that it would generate the desire to emulate what goes on in Sauri and have similar outcomes. Nonetheless, they would be handicapped in terms of resources unlike Sauri, which is a pilot project with funding. That could generate some resentment as they would also expect financial support that may not be readily available. However, the project being pilot, is meant to demonstrate that there are efforts that could have desirable outcomes in terms of improving people’s lives with contributions from different sources ranging from government, central and local, development partners, civil society, the scientific community, the community itself and even the individuals themselves. They would tap into the resources they would readily access like their own labour. Current efforts to improve development at the districts or even constituencies level through devolved funding would be a boost for such efforts.
The challenge for the government is also lack of the amount of resources that would be required for such an initiative. Both lack adequate resources to meet the MDGs requirements. The Needs Assessment and Costing Report estimated, for example, that the country requires US $ 61 billion between 2005 and 2015 to achieve the MDGs. This amount of resources cannot be secured from public sources solely but would require the support of development partners as well. The bonding of the people and the government to provide supplementary resources in terms of human effort and additional local resources is, therefore, necessary but not sufficient. The development partners efforts in terms of continued and sustained provision of the resources required to meet the MDGs would provide the sufficient condition. Tapping this and even depending on it is unadvisable given the inability to honour even the development assistance targets pegged as a ratio of their respective GDPs to the developing world in general.
**Devolved Funds**
Fiscal reforms aimed at devolving central government resources for rural development is not a new phenomenon in Kenya. Such initiatives date back to the early 1980s when the District Focus for Rural Development (DFRD) was introduced. These earlier initiatives performed dismally mainly because of limited people participation that failed to generate local ownership of projects funded under them. The motivation for the introduction of devolved funds was the desire to avoid government red-tape, delays in disbursement, increase absorption rates, and encourage people participation on prioritization of their needs in their localities to enhance their ownership of projects amongst many other reasons. Such Funds with enhanced stakeholder participation include the Constituency Development Fund (CDF), Local Authorities Transfer Fund (LATF), Road Maintenance Levy Fund (RMLF), Rural Electrification Fund (REF), and HIV/AIDS Fund. These Funds were aimed at establishing rural/urban infrastructure with the incorporation of people’s voices. They represent good examples of community-driven development and have been used to improve rural access roads (RMLF, LATF), improve water supply systems (CDF, LATF), enhance accessibility to power (REF), enhance education and training (FPE, Bursary Fund), leave smallholders with more funds to invest in agriculture (Bursary Fund, FPE, HIV/AIDS Fund) and improve their health status and their productivity (HIV/AIDS Fund, CDF, LATF) among others. Such developments reflect a more participatory approach to resource mobilisation and utilisation where development priorities as identified by the people are used. Such efforts embrace and also complement the SRA vision of private sector led development and agricultural commercialisation.
The funds impacts are important for the agricultural sector to facilitate the realization of its goals. The improvement of rural access roads, access to power in rural areas, adequate clean water, more funds released for investment in agriculture, for example, would spur agricultural development. The access to markets and information provides opportunities for use of improved technology for agro processing, storage, and other forms of value addition. Their impacts therefore conform well to the broad goal of the SRA to commercialise agriculture. They open up more markets, create the potential to add value to raw produce via the availability of rural power for agro-processing, reduce wastage of raw and perishable commodities due to good rural roads and possible cold storage facilities due to availability of power, and improve health status of farmers thus enhancing their productivity amongst others. However, the funds introduction just before the SRA seems to be a coincidence rather than planned. The SRA does not explicitly reflect the devolution of funds as an important aspect for its implementation, although the contribution of these funds especially rural infrastructure is crucial for the envisaged commercialised, private sector led agriculture. The private sector needs an enabling environment for doing business, which is facilitated by the devolved funds.
For the Funds to create the impacts for which they were designed, they not only need continuity in terms of adequate funding, but also proper management structures with the required capacity to deliver on their mandates. The devolution of funds from the central government to the periphery is still a new and evolving phenomenon and numerous teething problems still abound. The management of some of them like the CDF and LATF, has shown signs of being misused by the political elite to satisfy their political objectives. This has the potential to derail the Funds away from their set goals and short change the communities who were meant to benefit from the projects they fund. At the same time, basically all of them anticipate wider consultations with stakeholders and the respective communities, who also face limited capacity problems. They are expected to facilitate needs identification to which priority of funds allocation should be made and thereafter perform monitoring and evaluation of the projects being implemented. However, they may still not have the necessary skills to perform these tasks. For instance, the monitoring and evaluation demands qualitative and quantitative techniques to verify progress or ascertain achievements of the projects and especially for the latter, communities would generally be handicapped to deliver on that role. Capacity building for the Funds management and stakeholders to perform roles anticipated for them under the various Funds would be quite crucial for them to realise their roles satisfactorily. New management structures that are aimed at reducing or eliminating control by the political, economic or even social elites are necessary. This will ensure that agriculture where majority of the population is employed benefits from such initiatives. SRA therefore has to accommodate them in their policies and strategies to facilitate the attainment of their own objectives and to avoid at the same time duplications. The Funds thus have significant potential to influence and shape policy implementation in agriculture, despite their current problems both.
4. Sufficiency of Structures and Processes to Implement SRA
The success of any strategy in achieving its objectives depends on the structures that exist to facilitate its implementation. Likewise the SRA spells out the agricultural policy objectives contained in the ERS as well as their implementation. The reform agenda envisioned by SRA is ambitious. Although implementable, it will require substantial resources and collaboration with other sectors in the form of sector wide approaches (SWAPS), while coordination among implementing agencies is crucial for its success. The structure of implementation has already been thought of. At the national level the framework envisages an annual national forum of stakeholders in the sector organized by lead ministries to ensure there is political will to give the strategy a niche and prominence. The national forum is expected to review progress and discuss challenges limiting it and how to resolve them. This reflects the incorporation of a participatory role for different stakeholders in the agricultural sector. But if practice in the past is anything to go by then presidential decrees might still influence agricultural policy from the outside. This is more probable with an all-powerful presidency, which is also above the law.
The implementation framework also considers inputs from other sectors that are important for its realisation. The framework embodies an Inter-ministerial Coordination Committee (ICC) that include ministries that provide services the agricultural sector, e.g., ministries of roads and public works. The committee also comprises of private sector representatives. The lead ministries, like MOA, MOL, MOCD and MOLG, form the Technical Inter-ministerial Committee (TIC) that acts as the secretariat to ICC. It is envisaged that at this level, technical inputs necessary for the achievement of SRA can be brought on board akin to the Sector Wide Approaches (SWAPs) initiative. Without proper coordination and commitment from the other sectors, agriculture will remain constrained and will fail to achieve goals set in the SRA. This is particularly important since one of the factors constraining the development of agricultural sector is the lack of coordination among the different players in the sector.
The framework also recognises the crucial role played by donors in the policy process especially with respect to availability of resources and technical assistance. In the recent past, the donors have also been encouraging consultative and participatory processes in policy decision-making to enhance stakeholder and local ownership of policy reforms. The framework anticipates a departure from past practices with coordinated donor funding to ensure budgetary sustainability. Nonetheless, donor interests are flexible and are clothed in conditionalities, which can be susceptible to variations thereby having the potential to disrupt the policy framework. Mechanisms to deal with this as and when it arises are not clearly spelt out though. It can only be hoped that the proposed annual National Forum will have the capacity to deal with such an eventuality.
The strategy also recognizes the role of civil society groups, eg., NGOs, CBOs, FBOs Workers Trade Unions and agricultural trade organizations amongst others to: enhance farmers’ capacity to organize and use resources more efficiently; provide education, health and extension services; provide advocacy for improved governance, human rights and environmental protection; supply credit to disadvantaged groups among others. The SRA takes it that to enhance the role of civil society, the government will review the legal and regulatory framework governing their operations to empower their strategy in the strategy’s implementation. This is, nevertheless, beyond the SRA. However, should the framework that regulates civil society organizations go without review, then the implementation of the SRA could be jeopardized. Workers unions in the agricultural sector can be particularly disruptive to the production process due to work stoppages. The workers trade unions
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6 See Joint Statement of Development Partners for the Kenya Consultative Group Meeting at http://siteresources.worldbank.org/INTKENYA/Resources/donor_statement_agriculture must be given sufficient room to negotiate for improved conditions of work for their members to avoid actions that may derail the SRA’s implementation.
The SRA, in particular, presses for private sector led growth in agriculture. This is only achievable when there are clear actions to strengthen the private sector to play an active role to support farming, especially smallholding. The level of interaction between government and the private sector must increase and stumbling blocks that may impinge on private sector operations must be dealt with to create an environment where they can make the envisaged contribution in the sector by SRA. There have to be for instance, facilitative regulatory services like the proposed one-stop-shop for issuing a single business permit to eliminate the current bureaucratic process of business registration.
Lessons, therefore, have to be drawn from previous initiatives on agricultural development especially with respect to implementation, where lack of coordination has been a major contributor to their failure. The SRA’s implementation is a consultative process. It is very important, therefore, for the supporting sectors and the new development initiatives to integrate the agricultural sector when formulating their agenda. The National Steering Committee for SRA and an Agricultural Sector Coordinating Unit, therefore, need to go beyond simple recommendations to actual implementation.
In addition to some of the considerations mentioned above pertaining to the framework, the SRA faces also faces a number of challenges in its implementation. The first difficulty it faces is the lack of stakeholder ownership of the proposed reforms since there was no stakeholder participation in its formulation. The task ahead is to market it to stakeholders for them to own up the intended reforms and effectively participate by giving inputs in the implementation process. Past and current development initiatives point to the importance of stakeholder participation.
Secondly, the SRA lays out a massive reform initiative that requires it to have the right manpower in place for its implementation. This is a major challenge. Capacity building for the kind of staff and skills required are not well spelt out in the document. This could bring about haphazard and inconsistent implementation of the strategy and deny the economy the benefits envisaged from a commercialized, private sector led development in the agricultural sector. Such reforms will also require changes in institutional structures for their implementation.
Thirdly, it fails to recognize and build in the policy framework of the ongoing public expenditure reforms that favour devolution of public expenditures to the districts and constituencies. These devolved funds are creating rural infrastructure that, without them, would not have been undertaken at all. Cognizance of these efforts is very important for they have the effect of opening up the hinterland and enable resources that would have been tapped only expensively to be tapped relatively cheaply. In addition, they also open up markets for farmers whose produce would reach destination markets with difficulty and at high costs.
Fourthly, although it considers stakeholders input as important, the co-operative movement and societies that manage the production and/or marketing and at times fund different agricultural activities has not gotten adequate treatment. Fifth is that the strategy envisages a wider market for agricultural commodities to expanded regional and international markets. However, it fails to consider adequately on-going reforms in those trading partner countries and even competition from countries selling similar products in the same markets. It is only with such an assessment that they can determine what share of the market of these commodities they can capture and talk of expanded markets for the sector’s produce. Access to regional markets is further made difficult by constraints in the country’s agriculture and trade sector, which have to be addressed.
Beyond anything else, the SRA’s implementation requires the budgetary process to allocate sufficient funding for the proposed reforms. However, the SRA is a 10-year agricultural policy framework to be implemented under the MTEF budgetary process that entails three-year rolling plans. There are therefore some inconsistencies here in the sense that the SRA is long term whereas the budgetary framework is short- to medium-term. The budgetary process will not contemplate the resource anticipations for SRA’s implementation in the outer years after the medium term planning. This will necessitate quite close collaboration between the strategy’s implementation and the budgetary process to ensure that up to its 10th year of implementation the budgetary process will be able to allocate adequate resources to its projects and/or programmes. If this is not keenly observed, the country might end up with parallel policy processes in the agricultural sector. In addition, if the decision makers at the resource allocation level have not been involved and/or lobbied as it seems due to lack of stakeholder consultations when the strategy was being prepared, then the reforms might not see the light of day because they require resources for their implementation. Advocacy, targeting top level political leadership and powerful private sector business leaders will also be important.
It is important to recognise that the emerging policy formulation environment has fundamentally changed over time. The emerging strengths include the increasing transparency and room for debate; increasing voice, clear strategic path; formalized policy formulation process; improved budgetary process; increased capacity for policy analysis; and reduced opportunities for rent creation. However, there are still a number of weaknesses, which include lack of reliable and updated data, weaknesses in the budgetary process, problems of inter-ministerial co-ordination, personality driven processes, vested interests and confused paradigms and policy narratives.
Opportunities also exist that can improve the policy process. These include donor co-ordination and support, strengthening voices and creating local ownership of and commitment to the policy and budgetary processes. In addition, the Ministry of Agriculture has finalised a strategic plan to be used in implementing the SRA, which provides for restructuring of the ministry to improve its efficiency and technical service delivery. However challenges still exist even with this restructuring. Lack of adequate finance to implement some of the projects identified as priorities like Njaa Marufuku Kenya is an important lesson with respect to planning on the basis of resources expected from donors. Lack of funds for extension services also threatens the realisation of technical service delivery. While stakeholder consultations is important, the lengthy nature of the process in policy and legal reviews is a factor that needs to be taken into account by the SRA. Due to the acknowledged lack of funds, it will also be necessary to secure additional funding to strengthen extension service delivery and to rationalise all projects to avoid duplication (Kenya 2006). The continued accumulation of pending bills due to inadequate resource allocation to departments as noted in the PER 2003 is another factor with respect to sufficiency of structures for SRA implementation. This calls for a unified strong ministerial monitoring and evaluation. Appendix:
Figure 1: Sectoral growth rate, 1964-2000 References
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http://siteresources.worldbank.org/INTKENYA/Resources/donor_statement_agriculture Joint Statement of Development Partners for the Kenya Consultative Group Meeting
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c2d50bf4f9d9c47448609c2ed48bd41cb4b2d4a8 | Project Final Evaluation
For Projects funded by London Councils ESF Programme 2016-2020
Organisation name: Aim Higher Project ID: 8235 Priority: 3 Period covered by report: 1st September 2016 - 30th June 2019 Project delivery starts date: 1st September 2016 Project delivery end date: 30th June 2019
Evaluation conducted by\* (name and contact details of External Evaluator): Samantha Akita [email protected]
Name of Project manager: Martyne Callender
Date Final Project Evaluation signed off:
For London Councils use only:
Date Final Project Evaluation approved by London Councils:
\*Please note that this Final Project Evaluation must be conducted by an external organisation. All procurement requirements for securing the external evaluator and completing this Final Project Evaluation must be adhered to. Contents Page
01. Project Aims and Activities
02. Background
03. Methodology
04. Project Activities
05. Participant Feedback
06. Achievement of Soft Outcomes
07. Partnerships
08. Partnerships with employers
09. Working with Priority 1 Providers
10. Project Strengths/Areas of Improvement/Added Value
11. Project Achievements
12. Working with London Councils
13. Programme Manager Feedback
14. Project Aims and Activities
Delivered by a partnership network managed by lead partner RedbridgeCVS, the Aim Higher Project ran between September 2016 and June 2019. It aimed to improve the employability, health, parenting, life skills, social and financial inclusion of 749 economically inactive (65%) and long-term unemployed (35%) people from the target groups below living in the London Boroughs of Camden, City of London, Enfield, Hackney, Islington and Tower Hamlets.
This was achieved through recruitment of participants and delivery of project outreach and targeted activities in settings easily accessible to the project target groups, for example schools, libraries, in addition to traditional settings accessed by jobseekers like job centres. At the heart of the project was a co-design partnership with employers to address their needs and London’s skills shortages, as well as in work support for both employer and employee.
The target groups were:
- Women (51%)
- Ethnic minorities (60%)
- Older people (50+) (18%)
- Disabled people (22%)
- Lone parents (16%)
- Homeless and/or those recovering from alcohol addiction or substance misuse (7%)
- Those with a work limiting health condition (7%)
On completion the project had enrolled 410 participants of which 38% were economically inactive and 62% were long-term unemployed.
The key activities driving the project were: marketing and recruitment, referral and eligibility checks, enrolment and needs assessment, action planning, information, advice and guidance (IAG), retention tracking and on-going support, training and/or work experience/volunteering, employment support (including job brokerage, job clubs, supported jobsearch, work trials, guaranteed interview schemes, work placement, self-employment/enterprise) and in-work support to employees and employers).
Throughout their time on the project participants had access to support activities, such as confidence building, employability training, and IAG sessions delivered by experienced advisers.
These activities were delivered by RedbridgeCVS and the project’s contracted delivery partners; Osmani Trust, London Training and Employment Network (LTEN), Volunteer Centre Hackney, HCT Group and Bromley By Bow Centre. Other contracted partners were Urban Futures, Enterprise Enfield, Gingerbread and St. Mungos. These organisations withdrew from project delivery as a result of the many challenges faced by the partnership in the delivery of this project, which will be examined in this evaluation. Additional project partners, Work Works Training Solutions, St. Giles Trust and Faith Regen Foundation were contracted to support delivery of the project after these partners withdrew. The project’s unpaid referral partners included Cofipro, Wilbury Primary School, GrowTH, New Challenge (NCS provider) priority 1 providers SHP, Shelter, and Thamesreach, Positive Employment, probation services, Fashionworks, LB Camden, LB Islington, jobcentres, specifically Edmonton, Palmers Green, Hackney and Hackney Central library.
The project was funded through the London Councils Grants Committee and European Social Fund (ESF) and has contributed to the European Structural and Investment Funds (ESIFs) Growth Strategy for England 2014-2020 by delivering local, individualised support to people disadvantaged by multiple and complex barriers to work, sustainable employment and meeting the needs of employers.
Specifically, project activities contributed to the following aims of the ESIF strategy
- Access to employment for jobseekers and inactive people.
- Promoting sustainable and quality employment and supporting labour mobility
- Promoting social inclusion, combating poverty and any discrimination
The project
- Engaged economically inactive and unemployed people in activity, which improved their well-being and employability skills e.g. 1-1 personalised support, employability workshops, signposting to health services, work trials, to enable them to progress into work.
- Fostered the financial and social inclusion of disadvantaged groups by improving their skills, financial literacy, language; offering vocational training to improve job prospects and providing opportunities for social interaction e.g. social events.
- Provided sustainable, advantageous employment opportunities; supported career progression through skills development and working with employers to make recruitment more accessible to disadvantaged groups.
2. Background
Established in 1990 Redbridge Council for Voluntary Service (RedbridgeCVS) is an umbrella body that works with over 260 voluntary and community organisations in the London Borough of Redbridge. Its mission is to promote a strong, effective and independent voluntary and community sector in Redbridge. RedbridgeCVS’ work also extends to neighbouring boroughs such as Waltham Forest.
RedbridgeCVS is part of a CVS network in London, formerly named East London Network, and delivers a range of core services including:
- Volunteer Centre which supports residents to access volunteering opportunities within the local authority and voluntary sector organisations
- TB and HIV awareness projects targeting BAME communities, promoting preventative measures and encouraging the communities to access testing facilities
- Fundraising support to enable voluntary sector organisations to access 1-1 support to apply for funding
- EaST (Employment & Skills Team), formerly East Tenders, which supports disadvantaged groups to progress into sustainable work or training. This department led and delivered the Aim Higher project. • Fit for Fun, which enables local community groups and individuals to access free exercise classes for 20 weeks • Social Prescribing project enabling individuals referred by their GP to access 1-1 support and local services to improve mental health and social inclusion.
RedbridgeCVS successfully delivered 5 ESF/London Councils projects between 2010 and 2015 and felt best placed to tender for this 2016 – 2018 funding round, due to their track record, experience and learning from delivery of other projects.
RedbridgeCVS wanted to ensure they addressed gaps in provision in this project’s delivery boroughs, compliment provision and work in partnership with other services to avoid duplication. In order to do this, RedbridgeCVS ensured they understood the priorities of these boroughs in the following ways:
• Telephone meetings with Regeneration/economic development managers e.g. Anna Loughlin LB Enfield and Andrew Munk LB Hackney. • Reviewing the employment, enterprise and skills strategies of each borough • Reviewing the Joint Strategic Needs Assessments of each borough (JSNA) • Conducting focus groups with service users from previous projects that are resident in the boroughs • Surveyed residents from the boroughs • Spoke with VCS organisations such as Tower Hamlets CVS
Common issues identified
• Lack of ESOL provision • Lack of flexibly delivered training to suit the needs of parents or carers • People lacking basic skills, digital skills and ESOL • Duplication of employment support provision • Residents either not skilled or reluctant to work in growth sectors e.g. care, construction and hospitality • Higher unemployment amongst parents of dependent children, particularly lone parents, ethnic minorities, disabled, those aged 50+, those with a health condition, homeless people and people in recovery. • Domestic violence and abuse most prevalent amongst Bengali women
The 21 residents who participated in the focus group or survey advised of multiple barriers to employment including; no childcare, ESOL, housing issues, ill-health, social isolation. Many felt they lacked the basic skills, confidence, qualifications, experience, understanding of current recruitment practices and employer expectations to compete in a competitive jobs market.
Most had no CV or an out of date one, some had not participated in a job interview in over 3 years, had no qualifications, had not worked for over 3 years, had no previous experience in their desired job sector; or had no previous work experience.
Aim Higher project activities were designed to address these issues in order to move people closer to the labour market or into work. 3. Methodology
The evaluation took place between May and September 2019 and involved
- Review of MI data and monitoring information
- Review of 24 participant files
- Reviewing participant case studies
- Surveying contracted partners, referral partners, participants, other lead partners and employers
- Individual discussions with some project staff, stakeholders, 9 participants, the Partnerships & Development Manager and the London Councils Strategy Director
All discussions were guided by set questions to ensure consistency in approach. Direct quotes are not linked to any individual to protect confidentiality.
4. Project Activities
The project’s MI system, participant files, group session registers, case studies, stakeholder and participant feedback show robust evidence that the partnership conducted much activity to work towards achieving project aims.
To maximise accessibility of the project, partners either had their delivery site based in their delivery borough or co-located e.g. Faith Regen Foundation and Works Works Training Solutions shared a delivery site for several months of delivery. St Giles Trust delivered 1-1 IAG at Hackney jobcentre on a weekly basis and Work Works Training Solutions based activity e.g. job clubs in Edmonton and Palmers Green jobcentres. Project activities were delivered around school hours in child friendly local outreach venues, such as Wilbury Primary School, where participants could bring their children if they needed to. A total of 42 outreach locations were used during the lifetime of the project.
Although the project did not achieve profiled start targets. Their approach to engagement enabled the partnership to exceed its targets for the engagement of some of the specified target groups specifically women (64%), ethnic minorities (77%) health condition (21%) aged 50+ (26%) and homeless and/or those recovering from alcohol addiction or substance misuse (11%). It should also be noted that 23% of people engaged onto the project had a mental health condition and 67% were parents (including lone parents).
This is a marked improvement on RedbridgeCVS’ previous projects, where there was always underperformance in the engagement of those with health conditions and people aged 50+. This is an area of strength for the project.
However, unlike the Outreach East project, Aim Higher underperformed in the engagement of disabled participants (13%). Feedback from project partners and participants revealed a reluctance for some participants to declare a disability as it was felt this would be viewed negatively by employers. In addition, the project engaged a much higher number of long-term unemployed participants than profiled 68% against a target 35%, unlike the Outreach East project which exceeded economically inactive targets. This is an area of improvement for the project.
Aim Higher’s underperformance on the engagement of economically inactive participants was largely due to the fact that the 2 partners with the highest start numbers on the project, Faith Regen Foundation and Work Works Training Solutions, got most of their referrals from Positive Employment recruitment agency, Edmonton and Palmers Green jobcentres who mainly worked with long term unemployed people.
Several partners fed back that they found it difficult to evidence the employment status of economically inactive participants and focused on engaging who they could onto the project because they were behind profile.
The project delivered a range of activities targeting the priority groups on the project;
- A bespoke job club for long term unemployed benefit claimants including those aged 50+ and with health conditions delivered at Edmonton and palmers green jobcentres
- Signposting to IAPT, raising awareness of IAPT services and Access to Work Scheme
- Women only confidence building sessions
- Employability training sessions for BME communities
In addition, having, St Giles Trust an organisation that works with ex-offenders who presented with multiple barriers i.e. homelessness, poor mental health, in recovery from alcohol addiction and/or substance misuse, as a contracted delivery partner, helped ensure participants with a range of issues could access appropriate support.
Other activities accessed by participants on the project included, CSCS training, IT training, signposting to local services e.g. benefits, debt advice, IAPT, CV building, interview skills, job application and jobsearch support, confidence building. They also accessed, events such as an Employability Day jobs fair at Bromley by bow Centre and a celebratory event at City Hall. Group activities provided opportunities for social interaction and 87% of the attendees scored the group sessions as good or outstanding.
City Hall celebration event for Aim Higher and Outreach East participants with Assembly member, Keith Prince, RedbridgeCVS, LB Redbridge September 2018 Participant files show that participants also accessed 1-1 personalised support, CV building, careers advice, emotional and soft skills support. This is in line with p87 of the LEP ESIF Strategy for London 2016 that presents the need for a more personalised approach, tailored to individual circumstances.
Another area of strength for the project is the additional hours of support project participants accessed beyond the 6.25 hours per participant target. 42% of participants accessed over 7 hours of support despite the fact additional hours of support were not funded, unless the participant was homeless or in recovery.
However, additional hours were not routinely reported to London Councils and the quality of the recording of activities on project forms was variable across the partnership, which is an area of improvement.
5. Participant Feedback
An area of strength for the project is participant feedback. The views of participants on the Aim Higher project were overall positive with 87% scoring activity they participated in as good or outstanding. Participant feedback was recorded after every group induction, workshop and course. Evaluations measured distance travelled and shows how activities impacted participants. 17 participant surveys and 9 participant interviews were also completed.
96% of leavers were either satisfied or very satisfied with the support received. However, the sample size was small due to the low number of participants completing leaver forms, 98 in total. The main areas participants’ felt the project had improved for them was their confidence and job prospects.
All participants surveyed rated their project advisers good or very good in terms of their knowledge, understanding of participants needs, next steps and sign posting.
The main areas participants’ felt the project had improved for them were their confidence and job prospects. One participant interviewed commented “I got new skills and my confidence back” another said, “I’m getting interviews since I got help from my adviser”.
24 randomly selected participant files were viewed for this evaluation. Most files included the following sections:
- Participant file contents checklist
- Enrolment documents (including proof of address, right to work in the UK, employment status etc)
- Induction (including a signed participant handbook declaration which confirmed: their understanding of their rights and responsibilities on the project; what support was available on the project, who funds the project and its cross cutting themes and how they are integrated in to the delivery of the project; the requirement to provide employment or training information to their project adviser.
- Initial assessment / Reviews and Individual Action Plan
- 6+ / 12+ hours support (including signed action plan review summaries, group session attendance records, copies of CV, cover letters, completed job applications etc) • Gaining / 26 weeks sustained employment / Voluntary work placement • Progression into education or training • Exit and tracking (including leaver form)
In all the sampled participant files 100% of enrolment, induction, initial assessment and individual action plan / review, support and activity hours and outcome documents (including evidence where required). Where it was required documents were signed by participants and their advisers or had been verified with an official business stamp.
Some of the files did not include a checklist but were generally logically organised. However, this pattern tailed off when it came to the leavers’ forms; only 9 completed leaver forms of the 24 sampled files.
The project has been successful in responding to the individual needs of participants, with delivery driven by what participants wanted to achieve as outlined in their individual action plans and feedback. An area for improvement among project advisers is the level of detail included in action plans, which didn’t always reflect all the participants’ needs highlighted by the initial assessment.
Feedback from staff about the lack of leavers confirmation in files was simply poor response from participants and lack of resource to follow-up participants. Due to the project winding down staff hours were either reduced or staff were made redundant. This ongoing follow-up is an area for improvement across the project partnership.
Summary of leaver feedback
| Partner | Leavers scoring Very Satisfied | Leavers scoring Satisfied | Totals that fully completed the form | |-----------|--------------------------------|---------------------------|--------------------------------------| | BBBC | 4 | 1 | 5 | | FRF | 11 | 2 | 13 | | LTEN | 7 | 2 | 9 | | OT | 22 | 11 | 33 | | RCVSAH | 2 | 0 | 2 | | SGT | 4 | 0 | 4 | | VCH | 6 | 3 | 9 | | WWTS | 12 | 7 | 19 | | TOTAL | 68 | 26 | 98 |
69.38% of leavers scored Very Satisfied
26.53% of leavers scored Satisfied Participant Case Study
RCVS012 registered onto the project in December 2018, was homeless and managing a health condition. They were keen to find part-time work in a museum but lacked experience, confidence and felt hopeless about their current situation.
The Aim Higher project enabled the participant to be allocated an experienced adviser, who provided, 1-1 assessment, action planning, information, advice and guidance, signposting to housing advice, 1-1 support to update CV, complete applications and prepare for interview.
The participant secured an interview with an employer after a few months of support on the project but was unsuccessful. Their adviser supported them to stay motivated and keep applying for roles.
When a role for the V&A museum came up the participant was excited to apply. They were supported in completion of the application and got shortlisted for an interview, which their adviser helped them prepare for through 1-1 mock interview coaching. They were successful at interview and secured employment with the V&A museum as a Gallery Assistant on April 8th 2019.
The participant has been in the role for almost six months and does a day of voluntary work with the museum each week, in their education department to further develop their skills. Finding work has also given them the confidence to complete training with a church to become a volunteer mentor for ex-offenders. They have also been able to secure housing.
The participant commented, “I have the job I’ve always wanted… (project adviser) has helped me so much and I just wish that there are more people like him to support people like me”
6. Achievement of Soft Outcomes
The project had an initial assessment, completed by all participants, to identify their support needs and strengths in key areas including employability, health, basic/functional skills and soft skills. It was identified through this that the most common areas of support required by participants were:
- IT skills development
- Literacy and/or ESOL
- Confidence building
- CV development
- Job application completion
- Interview skills
Participants were asked to complete the same assessment again at least once during their time on the project to measure their distance travelled. 62% of participants completed an initial assessment review. The results of initial assessments and reviews were collated and monitored quarterly to ensure participants were making progress on the project. These reviews demonstrated that participants significantly improved their soft skills.
64% of participants felt they had improved their IT skills 58% of participants felt they had improved their Literacy and/or ESOL 91% of participants felt they had improved their confidence 94% felt they had improved their CV 79% felt more confident about completing job application completion 83% felt they had improved their interview skills
The projects ability to support participants to improve these soft skills is the result of the range of interventions it delivered to ensure it effectively addressed participants’ needs. This included, referral to English Conversation Clubs, referral to accredited Literacy and ESOL, employability skills workshops, job clubs, 1-1 CV building, interview skills, supported application sessions, referral to IT training, confidence building training and other confidence building activities such as celebration events.
61% of participants engaged onto the project had been out of work for over 3 years. It is, therefore, unsurprising that the most significant barriers to employment for participants were an out of date or lack of CV and lack of confidence.
It should also be noted that the initial assessment template changed 3 times during the lifetime of the project as a result of partner feedback. An example is, in January 2018, RedbridgeCVS delivered refresher paperwork training, during which partners advised that participants were finding the initial assessment too long. Partners were encouraged to suggest changes and provide examples of initial assessments they used on other projects. As a result, the initial assessment was reduced from 11 sections with, 3 pages to 1 page with 3 sections. This made it much easier to measure the achievement of soft outcomes and feedback on the template was positive.
Several participants interviewed for this evaluation commented that the project had helped improve their self-confidence and confidence in looking for work. Comments included,
“I can find jobs myself now and know the different ways to find them. I feel better confidence because I know what I’m doing”
“My adviser was just so lovely, she helped me believe I can do it, when I didn’t think I could. I don’t think I would have found my job if she didn’t help me with my confidence”
The development of participants’ soft skills is an area of strength for the project. 7. Partnerships
Partnership arrangement
RedbridgeCVS has delivered employment and skills support (including contract management) since 2010. As the Lead Partner in this project RedbridgeCVS has a strong track record of delivering, managing and leading ESF programmes managed by London Councils, among others. At the start of the project the partnership consisted of the following delivery partners:
- Bromley by Bow Centre
- HCT Group
- LTEN
- Osmani Trust
- Volunteer Centre Hackney
- Urban Futures
- Enterprise Enfield
- Gingerbread
- St Mungos
They were selected because of their track record, links with employers and their existing local presence which helped to increase recruitment and retention of the target groups.
Enterprise Enfield, Gingerbread, Urban Futures, St. Mungos and HCT Group withdrew before the project ended largely due to the need to implement retrospective changes to evidencing processes 6 months into delivery of the project as a result of London Councils inaccurate roll out of the ESF priority 3 programme. These partners were replaced by Work Works Training Solutions, St Giles Trust and Faith Regen Foundation in 2018.
Partners delivered an end-to-end service ensuring each participant had their own adviser giving 1-1 and group support throughout the project. In addition, each partner added value to the partnership by providing different yet complementary services.
Experience of delivering the project
All 12 Aim Higher delivery partners (including those who withdrew) were sent a list of survey questions and five responses were received. All Lead partners were also surveyed, and all responded. Telephone interviews were conducted with two organisations, one from each of the above.
When asked about their overall experience of the project all said that it was one of the most difficult contracts to deliver “as the paperwork changed or was added to continually”. One partner reported “We recruited staff from the start of the programme however due to ongoing changes we were never able to meet any outcomes for nearly 6 months. We never recovered the cost for staff. “
The experience for partners was rated overwhelmingly negatively overall with the multiple changes imposed by London Councils on the project cited as the main reason. Specific examples of complaints from the feedback include: • “Issued incorrect guidance in original handbook and sent an updated version with right guidance over 7 months later” • “Initial project documents missed essential requests for eligibility criteria evidence, which meant people initially engaged onto the project were not eligible until we retrospectively chased their documentation” • “We didn’t have a reporting database for 6 months of the project.” • “Changes sometimes communicated after the fact in claim feedback not before and meant things had to be amended retrospectively. On some occasions feedback took a long time to get back. There was a sense that they didn’t have enough capacity to deal with the amount of paperwork they were getting.” • “Some of the results forms were very confusing, i.e. progression into jobsearch or overly long winded. Placement form required the supervisor to sign one document twice.”
Delivery partners perceived the adherence to ESF requirements as “onerous and petty”. One partner said, “The scrutiny from both the LC and lead partner was often unnecessary – e.g. rejecting a file because the client described herself as Miss and then we in a second document wrote Ms (this is just 1 example)”. The perception that the rejected claims and scrutiny by London Councils were unnecessary dominated delivery partner feedback, however it was the timing of the changes which drew the most criticism e.g. “LC [London Councils] changed the rules and did not always inform the Lead or agree it in advance, this impacted on resources, delivery and the relationship with the Lead.”
ESF programmes are governed by specific and rigid rules. Project delivery partners and other priority 3 Lead Partners surveyed felt they correctly invested time to train staff at the start of the project to achieve understanding enough to implement the evidential needs. However, the impact of the wholesale non-compliant roll out of the project by London Councils and the subsequent “drip feeding evidence requirements” for projects to retrospectively collect additional information for months of claims led to mistrust and resentment aimed at London Councils. London Councils Grants Committee has publicly acknowledged the confusion and extra work caused by the flawed roll-out of the programme. For all this, “with ESF it’s either correct or it’s not” and the difficult and extra work perhaps made it hard for projects to square this circle.
There was also a significant negative financial impact on delivery partners. Three of the five respondents said that the project cost them more to run than they received in claim income. This was despite high interest from participants in the support offered by the project. ESF eligibility requirements were found to be insurmountable for significant numbers of potential participants. “…eligibility ID documents changed, which limited the target group on what they could provide to show eligibility”. For example, “DWP clients were allowed to produce Driving licences as proof of address – our clients were refused this even though the enrolment form stated they could”.
Then there was the strain on project staff at all levels across the partnership. Partners referred to: “stress for staff” and “dreadful impact on staff morale”; Serious loss of income because “huge amounts of work were not paid for.” Also, “huge levels of overwork and repeat work and repeated repeat work required.”
Lead priority 3 partners advised of reputational damage. “The impact with our partners has been really, really tough and we’re not sure if we can regain our credibility with them e.g. will they work with us again?
One respondent said that it was “..the worst managed programme I have ever been part of in 30 years in this field”.
Another stated “loss of valued partners from our partnership. Loss of reputation due to being ‘red ragged’ unfairly. Damaged relationships with partners, tears and anger on the phone and in person with previously friendly organisations (which we have come through, but it was very unpleasant).”
**Working with RedbridgeCVS**
All delivery partners who responded positively rated their experience of working with RedbridgeCVS as lead partner,
“..we enjoyed being a partner of RedbridgeCVS who were extremely pleasant and friendly and did their utmost to help at all times.”
“The overall experience with Redbridge [CVS] has been a positive one with all members of staff being responsive and doing their best to help clarify any questions. The delivery team always felt able to approach Redbridge staff for advice which was appreciated.”
However sometimes the pressure to submit claimable outcomes leading to extra checks RedbridgeCVS conducted on behalf of delivery partners caused tensions across the partnership, one said:
“Project admin staff were overzealous and added to the overbearing scrutiny and notably over control of partners”.
“LC was unsure about what they were doing and so therefore Leads were unsure of what they were doing. However, Redbridge CVS as a lead did try to impart clear information to the partnership based on what they had been told by LC!”
**Future London Councils Projects**
Despite the challenges almost all partners said they would tender for suitable London Councils projects in future.
A lead partner commented, “Their [London Councils] response wasn’t always good, but I did find that I could call and speak with them and often get things resolved or agree to disagree. There were many things they did to try and address, issues such as changing eligibility criteria, increasing payments for 6+ hours support retrospectively and allowing us to re-profile. QA visits and support to check paperwork was very helpful.”
“They are very open to talking over the phone to resolve issues and trying to be flexible. Not many funders are like this.”
“It seems strange, but I would, our trustees would not. As long as we could be sure from the beginning what the requirements are, so we know exactly what is expected. Also, only if they had enough staffing to fully deliver on the management of the contract.” Others felt more strongly about working with London Councils, expressing their need for caution and closer scrutiny of requirements of any potential project before proceeding.
“It was too painful and costly... The ONLY way we would consider another LC contract is if we were convinced there had been both a change of attitude and a change in the staff managing the monitoring side since this is where 90 per cent of the problems originated.”
“We would look very closely at the contract specification before considering tendering for a London Councils project. We would be particularly cautious around the requirements for outcome/eligibility evidence, reporting and payment structure.”
8. Partnerships with Employers
Surveys were sent to 9 employers who provided work placement, volunteering and employment opportunities to project participants and 6 were returned, all from retailers.
Feedback from these employers was generally positive particularly regarding the calibre of participants referred to them; and the support they received from the project to help participants complete work or volunteering placements.
100% of survey respondents rated partnership working with the project as good or outstanding and all advised they would work with the delivery organisations again.
Comments included
“The process was simple and most of the clients were seen very quickly’
“I found them to be very supportive of their clients’
“They were quick in feeding back on the support given to clients’
RedbridgeCVS’ Partnerships and Development Manager confirmed that their delivery staff and partners organisations sometimes found it difficult to convince employers to evidence results in a compliant way, especially in cases where there was no pre-existent relationship with the employer. But the partnership did their best to address this by requesting participants’ payslips to evidence job outcomes..
However, the partnership did not always work together as effectively as possible with employers. Partners rarely shared vacancies across the project. The Partnerships & Development Manager advised that partners were keen to protect their individual relationships with their employers and due to multiple, continual issues with the project, felt under pressure to achieve their individual re-profiled delivery targets, which resulted in the minimal sharing of vacancies. There was also no evidence of the project effectively linking into large scale recruitment drives to increase job outcomes on the project.
Although this way of working was not ideal, little was done to change it. The Partnerships & Development Manager advised that the partnership was dealing with the many issues that occurred on the projects, which impacted capacity to address this. The withdrawal of 5 delivery organisations, most of which had some of the strongest employer relationships and flexible working arrangements e.g. HCT Group, Urban Futures and Gingerbread, also significantly reduced the employer links the project had access to. Nonetheless, it is agreed that a more joined-up approach to job brokerage may have enabled the project to increase the number of job outcomes achieved.
There are some good examples of partnership working with employers. Work Works Training Solutions had relationships with a range of retail employers including Matalan. They delivered a sector-based work academy, where participants would access pre-employment training, followed by a work placement, which, if successfully completed led to a guaranteed interview with the employer. Also, Faith Regen Foundation partnered with a recruitment agency, Positive Employment who offered work experience and job opportunities to project participants through their links with employers.
However, despite the high number of job and work placement opportunities these partnerships generated this did not lead to a high number of job outcomes on the project. There is evidence in participant files of participants not attending job interviews or failing to start or complete placements. This could partly be due to 61% of participants being out of work for over 3 years, therefore quite far removed from the labour market.
9. Working with Priority 1 providers
Priority 1 providers, Thamesreach, Shelter and SHP made a total of 84 referrals to the project. 48 participants were started on the project of those 31 were from priority 1 providers. Others were referrals from GrowTH and jobcentre plus.
RedbridgeCVS originally contracted St Mungos as a paid delivery partner on the project to engage homeless people, but this partnership faced several challenges. Most significant of those, were the project requirements to evidence address, eligibility to live and work in the UK, which made it difficult for the majority of homeless people St Mungos worked with to access the project. Many had lost these documents whilst being street homeless. In addition, EU Identity cards were not initially accepted as valid proof of right to live and work in the UK, which is the only evidence most of St Mungos participants had.
As a result of these issues being highlighted to London Councils, they met St Mungos to discuss this. Following the meeting they created a Homeless Declaration to be used where participants did not have the required documentation for the project and agreed to accept EU Identity cards to make the project more accessible. However, St Mungos still withdrew from delivery because they felt the changes had come too late into project delivery and they would not achieve their performance profile.
St Mungos’ withdrawal from the project did impact the engagement of this target group, but RedbridgeCVS responded by procuring a new partner, St Giles Trust to support homeless people and increased engagement with the other priority 1 partners. They attended a team meeting at Shelter to promote the project to generate referrals. They also met with Thamesreach’s lead from the sustaining tenancies and resettlement team, Pamela Estrella, to agree a simple partnership working process.
**Thames Reach Case Study**
On January 17 2018 RedbridgeCVS’ Partnerships & Development Manager and Projects Officer met with Pamela Estrella with the aim to agree a way of working in partnership to support homeless people to move closer to and into work.
The following processes were agreed
- Aim Higher project to provide employment focused support and Thamesreach to provide wraparound support related to housing, benefits, funding for equipment or training that will move participants closer to employment, drug and/or alcohol addiction or misuse support.
- All referrals to be made to RedbridgeCVS’ Project Support Assistant via secure email
- referrals to be followed up within 3 days of referral and feedback sent to Thamesreach on outcome of referral within 5 days
- RedbridgeCVS to assess which partner best suited to work with referral i.e. St Giles Trust or Faith Regen Foundation and pass referrals to them.
- Monthly updates to be sent to Thamesreach on progress of referrals enrolled and supported on the project
- Quarterly partnership meeting to review progress and address any issues
**Outcomes**
- 17 participants engaged in employability skills development and jobsearch
- 12 participants have a CV created or updated
- 9 participants reporting they have improved their chances of finding a job
- Shared resource and expertise which added value to both organisations service delivery
Pamela said, “it was very easy to work with the RedbridgeCVS, the communication was great… I was particularly impressed with St Giles Trust who followed up referrals quickly, fed back and offered my clients lots of support.”
**Challenges**
- Changes made by London Councils to make the project more accessible to homeless people were actioned nearly a year after the project began.
- Many homeless people were short term unemployed as priority 1 providers supported them to access benefits as soon as they engaged with them. This initially made them ineligible until London Councils allowed for short term unemployed people with multiple and complex barriers to access the project.
- The transient nature of the participant group meant they would have periods of disengagement and sometimes could not be contacted. This made it hard to achieve job outcomes as participants often didn’t engage in activity regularly. Faith Regen Foundation found this to be the case.
- Participants would be moved out of the borough, which made it hard to track and evidence outcomes
**Learning**
- Keep it simple, make processes for working together as easy as possible
- Ensure clear processes for planning, implementing and monitoring – so that things stay on track
- Build a foundation of mutual trust and ability to address challenges
- Regular and ongoing communication is key to a successful partnership
- Be flexible, embrace changes in order to always work in the most effective way possible
- Deliver support where homeless people are i.e. hostels or in outreach venues near where they’re rough sleeping e.g. libraries, to maximise engagement. St Giles Trust did this and had more sustained engagement with homeless participants than Faith Regen Foundation as a result.
**What could have been done differently**
There was an over reliance on the contracted partner at the beginning of the project to achieve the homeless targets e.g. St Mungos. The withdrawal of this partner due to the challenges they faced with the eligibility criteria for the project, led to the project’s increased engagement with priority 1 delivery organisations. However, this could have been prioritised earlier.
London Councils could have better consulted with homeless organisations during the commissioning process to get a greater understanding of the challenges faced by homeless people in accessing services due to a lack of documentation. This may have ensured the eligibility criteria for this target group was more flexible from the start of the project and more homeless people could have been engaged.
**10. Project Strengths/Improvement/ Areas/Added Value**
The project had areas of development that it had varying success in addressing;
- There was inconsistency in the quality of recording project activities across the partnership, specifically in relation to enrolments, participant action plans and activity records/reviews. Some are very detailed and give a holistic picture of the participant and their journey on the project. Others lacked detail, SMART actions and only focussed on employment support.
RedbridgeCVS made several attempts to address this including creating an Employment Status Assessment form, paperwork guidance, providing training and example templates to help partners. There was some improvement as a result but ultimately over 100 project enrolments were rejected by London Councils, which significantly impacted project performance. It is worth noting that, ongoing updates to the ways to compliantly evidence eligibility e.g. completing third party verification and referral forms, also significantly impacted the project’s performance.
- Recording of participant contact and tracking was also inconsistent across the partnership. The project had follow-up and tracking forms to record contact with participants, as well as having CRM systems to record this. However, these forms were not consistently used throughout the partnership. As a result, it is hard to effectively measure the amount of disengagement on the project.
The Partnerships & Development Manager commented, “the importance of regular contact and tracking was constantly highlighted to partners, it was also discussed during our paperwork training sessions and should have been more consistent...We were reluctant to withdraw participants from the project because it’s quite common for them to dip in and out. We didn’t want people to have to re-enrol.”
- Lack of joined up employer engagement as previously mentioned. The number of job outcomes achieved on the project is very low. Better coordination could have improved this.
- Project underperformance across starts, outputs and results. Although, it is recognised that the significant challenges experienced by this project have greatly impacted performance, it must be noted that the project performed significantly under profile. The project was re-profiled in 2018 in recognition that the original profile would not be met.
- The project had a significant lack of engagement in some of the delivery boroughs it was contracted to deliver in, e.g. Camden, Islington and Hackney. This was due to the withdrawal of some of the delivery partners covering these boroughs e.g. Hope for Gingerbread, HCT Group. RedbridgeCVS tried to address this by allowing partners to work across all boroughs instead of just the ones they were contracted to deliver in.
Nevertheless, the project had several strengths:
- As previously mentioned, the engagement of project target groups has been a success. Targets were exceeded for all but one target groups (disabled) i.e. women (64%), ethnic minorities (77%) health condition (21%), aged 50+ (26%) and homeless and/or those recovering from alcohol addiction or substance misuse (11%). Also, 23% of people engaged onto the project had a mental health condition and 67% were parents (including lone parents).
- Participants’ achievement of soft outcomes has been very good. Over 85% of participants have reported that they developed employability skills and confidence as a result of participation in project activities. • Support from project advisers has been highly praised by project participants. Participant feedback from their surveys, leaver forms and interviews highlighted the importance of their relationship with their adviser in helping them progress on the project. Over 90% of participants that completed leaver forms scored their adviser as knowledgeable of the subject or activity and understanding of their needs.
• The project has been very flexible and responsive, providing support to meet participant needs whilst managing a significant number of challenges and changes as detailed in several sections of this evaluation.
• Partnership working on the project has been strong, with delivery partners’ feedback being generally positive about RedbridgeCVS’ leadership and support. Also, effective working relationships with referral partners and priority 1 projects leading to the desired project target groups being referred to the project e.g. women, health conditions, ethnic minorities and homeless participants.
• The project also added value by providing a range of wrap around support e.g. St Giles Trust supported participants to apply for a discretionary grant to access funds in order to pay for ID documentation e.g. passports. They also provided specialist advice and services for ex-offenders e.g. advice on disclosing offences to employers. Other examples of this are, Bromley by Bow Centre have a drop-in advice hub open each weekday that project participants could access. They also have a health centre, health and women’s services, which was open to project participants. Faith Regen Foundation also delivered a domestic violence prevention project, which women on the project could access where needed. Volunteer Centre Hackney have a mental health support project that participants could access, and Osmani Trust, who host a range of services in their community centre enabled participants access to family and health support services, also accredited functional skills provision.
11. Target Groups. Output and results.
Table 1: Target Groups Supported:
Please note the final figures for this project have not yet been finalised and are still in query. Figures in this evaluation reflect what has been approved by London Councils up until May 31st 2019.
| Target group | Profile | Actual | |-------------------------------------|---------|--------| | | Female | Male | Female | Male | | Total number of participants enrolled | 382 | 367 | 264 | 146 | | Long-term unemployed participants | 134 | 128 | 163 | 92 | | Economically inactive participants | 248 | 239 | 99 | 56 | | Women | 382 | 367 | 264 | 146 | | Output/result | Profiled | Actual | Difference | |------------------------------------------------------------------------------|----------|--------|------------| | Enrolled | 749 | 410 | -339 | | Long term unemployed participants | 262 | 255 | -7 | | Economically inactive participants | 487 | 155 | -332 | | 6+ hours of support (IAG, job-search, mentoring, training, 1-2-1) | 675 | 372 | -303 | | 12+ hours of support | 45 | 13 | -32 | | Completing Work or Volunteering placement | 148 | 18 | -130 | | Progression into education or training or specified accredited support service within 4 weeks of leaving the project | 150 | 25 | -125 | | Economically inactive participants in employment/ job search within 4 weeks of leaving the project | 0 | 1 | +1 | | Gaining Employment/apprenticeship within 4 weeks of leaving | 225 | 37 | -188 | | Gaining Employment within 4 weeks of leaving the project (those recovering from drug and/or alcohol addiction, homeless) | 22 | 1 | -21 | | Employment sustained for 26 weeks | 142 | 6 | -136 | | Employment sustained for 26 weeks (those recovering from drug and/or alcohol addiction, homeless) | 9 | 0 | -9 | | Submission of final evaluation report | 1 | 1 | 0 |
Note: the project was re-profiled in recognition of the multiple issues encountered in delivering the project, and a reduced profile was agreed in 2018. Profiled figures above are based on the original contracted profile. Borough spread
Table 4: Performance Table: Borough starts: Project 5
| Borough | Starts | Achieved | |------------------|--------|----------| | Enfield | 184 | 147 | | City of London | 3 | 0 | | Hackney | 153 | 61 | | Islington | 121 | 42 | | Tower Hamlets | 175 | 131 | | Camden | 113 | 16 | | Waltham Forest | 0 | 1 | | Barnet | 0 | 1 | | Haringey | 0 | 11 | | Total | 749 | 410 |
12. Working With London Councils
RedbridgeCVS has mixed feedback about their partnership with London Councils. They felt the relationship was very good overall.
During an interview with RedbridgeCVS’ Partnerships & Development Manager, the following views about the programme management emerged:
- London Councils staff were always available via phone and email to deal with queries and discuss issues. The manager cited several occasions where she was able to talk challenges through with their ESF Technical Adviser, Samara Armitt, and generally, agree a way forward. This is not something most funders do and was greatly appreciated.
- London Councils employing Quality Assurance Officers to conduct initial on-site paperwork checks and feedback in order to minimise the amount of queried and rejected paperwork was very helpful. At one point, QA officer Isabella Loftus, attended RedbridgeCVS on a bi-weekly basis to check paperwork and was integral in reducing the amount of queried and rejected paperwork.
- Several actions were implemented to address London Council’s previous team’s erroneous roll out of the programme, which impacted partners’ ability to achieve results and draw down funding. This included, allowing group session hours to be funded as part of the 6+ hours support, increasing payments for the achievement of 6+ hours support from £400 to £700 per participant, introducing an EI progression into jobsearch result valued at £450.
- An event organised by London Councils in January 2018 to discuss project outreach and evidencing the EI progression into jobsearch result provided a good opportunity for leads and their partner organisations to come together.
- Amending the eligibility criteria for the project to allow for short term unemployed people with multiple and complex needs to access the project following a meeting with RedbridgeCVS and a partner, which underscored the need for the project to support this target group. • Allowing the project to be re-profiled and extended by 6 months to allow additional time to achieve results.
However, the following issues were highlighted: • Although RedbridgeCVS are very grateful that London Councils took several actions to address the impact the flawed roll out of the programme had on the project, 72 participants were still deemed ineligible for the project as a result of this. In addition, partners spent months retrospectively evidencing participants’ eligibility for the project, which took significant time away from delivering project activity. This led to the withdrawal of 5 delivery partners and 2 additional procurements taking place to secure new partners. This negatively impacted project performance and the project never fully recovered despite London Councils various attempts to address these issues.
Communication of changes was a real issue. It is felt they were often communicated after the fact or not at all. Examples include:
• A request for proof of a participant’s National Insurance Number was added to the final version of the enrolment form although never requested on all 4 previous versions. RedbridgeCVS were not advised by London Councils this would be added and so could not appropriately prepare delivery partners for this change. • In April 2019, London Councils provided feedback on January, February and March claims, which outlined the requirement for the length of unemployment and employment status sections of third-party verifications to be completed in wet ink. This previously wasn’t a requirement and so hadn’t been done, which led to the project having to address this retrospectively. It is felt, that this should have been communicated as soon as London Councils decided on this change.
Delayed and unclear feedback was another issue raised, examples include • Lack of clarity on how to address queried submissions and errors in unit costs sometimes occurring on claim feedback, which took longer to review and sometimes led to delays in raising invoices; leading to payment delays for partners • Delays in the receipt of feedback on claims, especially resubmissions, this did get better at times but not consistently; leading to payment delays
Requirements in evidencing eligibility going beyond the requirements of ESF • Driver’s licences over 12 months old stopped being accepted as a valid proof of address on this project, but are accepted on other ESF programmes e.g. National Lottery Community Fund’s Building Better Opportunities Programme. • When using EU identity cards to evidence participants’ eligibility to live and work in the UK, London Councils requested proof of a participant’s date of birth even though the date of birth is included in the reference number on the bottom right of these cards. London Councils fed back that EU ID cards do not include the date of birth and so additional proof was required.
It was also felt that the EI progression into jobsearch result was impossible to achieve. London Councils’ template contained errors and was unclear. This led to RedbridgeCVS designing an additional template to use in conjunction with London Councils’. Partners following the evidencing criteria of London Councils form were still asked to provide additional evidence. In addition, only mainstream provision such as the Work and Health Programme, local authority employment projects or non-mandatory transition onto JSA or all work related UC were seen as viable jobsearch progressions, which was limiting. This resulted in partners deciding not to pursue this result as a viable outcome for participants, despite the fact the project had a high number of economically inactive participants that were progressed onto other local provision or partners’ other employment projects.
Project reporting systems were not fit for purpose leading to several resubmissions of the same paperwork and inability to draw down accurate performance reports.
RedbridgeCVS’ Partnerships & Development Manager, suggested it would have been beneficial to reconcile all delivery figures with London Councils ESF Technical Adviser at the end of each quarter. Several times, changes made following reporting were not reconciled on the Reporting Database. This resulted in an extensive reconciling exercise at the end of the project, which meant additional work for both the ESF Technical Adviser and RedbridgeCVS’ Partnerships & Development Manager.
In addition, the Partnerships & Development Manager suggested that when there are changes to templates, delivery or evidencing requirements this should be communicated on London Councils’ website with accompanying guidance where necessary. This approach works well on other ESF programmes i.e. the National Lottery Community Fund’s Building Better Opportunities Programme. It would also ensure lead partners get the same information at the same time and can disseminate this to their delivery partners in a timely manner.
The Partnerships & Development Manager commented, “at times it felt like London Councils didn’t have enough staff resource to expediently check and process claims, which led to delays and some errors. But I always felt that they would try their best to resolve issues I raised with them.”
A delivery partner commented “We recommend that London Councils review how this project was managed and particularly the requirements given the complex nature of the project’s beneficiaries.”
13. Programme Manager Feedback
In August 2019, on completion of the project, a telephone interview was conducted with Yolande Burgess, Strategy Director for Young People’s Education and Skills and Grants and Community Service at London Councils. The Director and her team managed the implementation of the ESF Priority 3 programme across London. She was appointed to the role during the first year of delivery to address the serious issues faced by ESF Priority 3 projects after identifying significant non-compliance with ESF funding criteria and resulting underperformance was identified across the entire programme.
Having not been in post at the start of the project the Director was unable to comment on the setup of the RedbridgeCVS project. However, given that RedbridgeCVS was responsible for a third of the Priority 3 projects in London and the close working involved in getting the project back on track overall she said her team were able to build a good working relationship with RedbridgeCVS, in the face of extraordinary challenges. RedbridgeCVS as Project Lead
Yolande regards RedbridgeCVS as a “super” project lead. From her attendance at partnership meetings she observed the RedbridgeCVS team demonstrating the balance between good, supportive working relationships with their delivery partners whilst recognising their duty to the funder.
Despite what has been an extremely difficult project Yolande said she has really enjoyed working with RedbridgeCVS, specifically commending their Partnerships & Development Manager, Finance Manager and CEO. Other members of her team also relayed positive feedback about delivery staff following site visits to quality check paperwork.
Strengths of RedbridgeCVS
Yolande highlighted the following;
- The Director felt RedbridgeCVS “led its sub-contractors very well” and they have “very good advisers who are very good at what they do”. She also said they were very responsive to addressing London Councils requests for changes and willing to work together under trying circumstances. RedbridgeCVS were a “calming voice” to its partnership, attempting to manage the strong feelings raised by the challenges while keeping the project going. The Director said she much preferred RedbridgeCVS’ approach of picking up the phone to talk things over even when they were “feeling a little grumpy” about the nature of the changes. Throughout the project “There were lots of honest conversations about the aggravations of paperwork”.
- Whilst RedbridgeCVS were equally as frustrated as its delivery partners with the impact of the poor set up of the programme the team showed commitment to the aim of reducing poverty by sticking with the project. For example, Ross Diamond, RedbridgeCVS CEO, and Harjit Sangha, Finance Manager attended a Grants Committee meeting to share their experience of the project, demonstrating to the committee what was being done to support vulnerable people into employment, despite the difficulties.
- The Director commented that the team “responded heroically” to the changes requested at a time when they could have “walked away...they chose to stick with it as did all the other partners.... Redbridge had to move mountains to get it back into shape” The programme required projects to respond to the individual and complex needs of participants and the Director felt RedbridgeCVS delivered well in this respect in providing their expertise delivered by a good team of advisers.
- Appropriate escalation of issues, e.g. St. Giles, a specialist organisation working with individuals recently released from prison. Yolande visited after RedbridgeCVS identified specific difficulty with ESF rules which excluded this incredibly vulnerable group. Yolande found it helpful to speak directly with a St. Giles adviser about how the project criteria was excluding some of the most vulnerable people it was supposed to help. This led to London Councils requesting the GLA to allow flexibility in the eligibility criteria for the most disadvantaged across the whole programme, allowing projects to support even more vulnerable people.
- The Director notes her attendance at 3 RedbridgeCVS AGMs which she finds is a useful way of learning about an organisation’s relationships with their partners. She found all 3 RedbridgeCVS AGMs “incredibly well attended” in volume and by representation of stakeholders e.g. DWP. She commented “A distinct strength about RedbridgeCVS is everything about the organisation tells me it’s absolutely embedded in the local community” She observed RedbridgeCVS “it’s obvious they are very well respected” by their partners and describes them as a “highly experienced, mature and well-established and well-run organisation”. The Director didn’t have any concerns about RedbridgeCVS’ relationships with their delivery partners or stakeholders
Learning
In terms of learning from this final ESF programme, a major assumption was made by all Priority 3 projects and the initial London Councils team who set-up the programme. The error originated in the change in status of London Councils from co-financer to a direct-bid organisation. This meant London Councils had to strictly adhere to the rigid ESF evidence requirements and there was absolutely no flexibility around this despite what they, and projects, were previously accustomed to.
When it became clear six months into delivery that the programme was entirely non-compliant projects faced real challenges on learning: a) that work to date was ineligible and b) an incredible amount of work was going to be needed to recover the programme.
However culpable all parties were for not adhering to the original ESF guidance, it is a lesson learned by all partners. London Councils acknowledges as the funder it was ultimately their responsibility to highlight this to projects.
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75d5f4bb4de645e7d79b48d5b104d836f5494d05 | Air Quality and Planning Guidance
Revised version- January 2007
Written by: The London Air Pollution Planning and the Local Environment (APPLE) working group
1. Introduction
1.1 Purpose of the guidance
This guidance is aimed at developers, their consultants and local authorities. It revises previous guidance issued in 2001 and provides technical advice on how to deal with planning applications that could have an impact on air quality. If developers and local authorities follow the procedures in this guidance, it will help ensure consistency in the approach to dealing with air quality and planning in London. This revised guidance was endorsed by the London Councils Transport and Environment Committee (TEC) on 17th October 2007.
The recent Government draft Air Quality Expert Group (AQEG) Air Quality and Climate Change report recognises the potential for both local and global air quality improvements. Local authorities will be looking towards reductions in both and developers should take this into account throughout the design, construction and operational phases of a development, bearing in mind any potential trade-offs between global and local air quality improvements.
1.2 Background
Clean air is vital to human health. High levels of fine particulate (PM$\_{10}$) air pollution in 2005 were estimated to have caused 1,031 accelerated deaths and 1,088 respiratory hospital admissions in London.
The Government adopted the UK Air Quality Strategy (AQS) in 1997, to deal with local air quality and its impact on health. This was revised as the AQS for England, Wales, Scotland and Northern Ireland in 2000, which set requirements for local authorities to undertake a process of Local Air Quality Management (LAQM). As part of this process, local authorities must review and assess air quality and work towards objectives to be achieved between 2003 and 2010. Where the prescribed air quality objectives are unlikely to be met, local authorities must designate Air Quality Management Areas (AQMAs) and produce an Air Quality Action Plan setting out measures they intend to take to work towards objectives. Under the requirements of the Greater London Authority Act 1999, the Mayor of London produced an Air Quality Strategy in 2002 setting out how the National Strategy will be implemented in London as a whole. London borough Action Plans need to have regard to this strategy.
By 2006, all but one borough has declared AQMA(s) for nitrogen dioxide (NO$_2$) and/or PM$_{10}$. The major cause of air pollution in London is road traffic, although around Heathrow Airport, emissions from aircraft and associated site traffic are an additional problem. Other notable contributions come from industrial plant and premises, domestic energy production, and construction activity. It should be remembered that background pollutant concentrations in London and the South East are heavily influenced by weather systems that also affect northern Europe.
A consultation on the review of the National AQS was issued in April 2006. The Government is proposing an ‘exposure reduction’ approach in line with the proposed EU Thematic Strategy. This approach supplements air quality objectives (which are focused at hot-spots) to achieve a general reduction in pollution concentrations in urban areas across the whole
______________________________________________________________________
1 The Mayor’s Air Quality Strategy: Progress report to March 2005. country. Any changes in the National AQS will be reflected in future borough Review and Assessment, and policy work.
A key principle of LAQM is for local authorities to integrate air quality considerations with other policy areas, such as planning. The recent Planning Policy Statement 23 (PPS23) on Planning and Pollution Control clearly states that air quality can be a material planning consideration. Indeed, PPS23 goes on to state that the planning system should not just seek to maintain the ‘environmental status quo’, rather “planning should become a more strategic, proactive force for economic, social and environmental well-being”(^2). It goes on to say “The planning system plays a key role in protecting and improving the natural environment, public health and safety, and amenity”(^3). It is therefore important for all local authorities to think about how they can best bring air quality considerations into the planning process at the earliest possible stage and it is no longer satisfactory to simply demonstrate that a development is no worse than the existing or previous land use on a particular site.
Where developments take place in an AQMA, mitigation measures should be considered as standard practice, particularly in cases where the development is new and does not replace an existing use. This is especially important where the development has provision for a large number of parking spaces, significantly increasing the number of trips, and/or heating plant.
This guidance takes into account new planning policies, including PPS23, and aims to help reduce exposure to air pollution across the whole of London. This approach should bring health benefits to everyone - not just those living in localised areas (i.e., hotspots) where the objectives are exceeded. This is particularly important for PM(\_{10}), as this pollutant has a significant impact on health and has no safe threshold. In order to reduce overall exposure, background pollution will need to be reduced, so it makes sense that every development that has the potential to emit pollution should require mitigation or offsetting to help achieve an overall reduction in London’s air pollution.
This technical guidance has been produced by the APPLE (Air Pollution Planning and the Local Environment) working group. The document updates and replaces the ALG(^4) Planning Technical Guidance issued on 20(^{th}) March 2001 and Circular TEC 01/03.
(^2) PPS23 Planning and Pollution Control, ODPM 2004, para. 3. (^3) ibid, para. 9. (^4) London Councils was formerly known as the Association of London Government (ALG). Its new name, effective from 1 October 2006, was chosen to reflect more accurately its membership. 2. Air quality assessments for planning applications
2.1 Introduction
Where air quality impact assessments are required as part of a planning application, guidance is often sought by the applicant as how best to undertake these to the satisfaction of the local authority. This document sets out situations when an assessment may be required and suggests methods for undertaking such an assessment within the London area. It is based on situations unique to London and on the experience of London local authorities.
Once an air quality assessment has been completed, the local authority will make a judgement on whether the proposed development is likely to significantly affect air quality or if it is located in an area of poor air quality. If a development is determined to result in a deterioration of air quality, the local authority will often work with the developer to offset this impact by securing mitigation measures that will allow the development to progress. Similarly, if a development is of sensitive use and located in an area of poor air quality, the local authority will work with the developer to ensure all measures are taken to secure acceptable air quality for new receptors.
London local authorities have typically used similar assessment methods to each other to fulfil the requirements of the detailed Review and Assessment process that led to the AQMA designation. For consistency, air quality impact assessments for developments within London should, where possible, follow similar methodologies. Applicants intending to undertake an air quality assessment should always seek the latest information available on air quality and pollutants of concern from the appropriate borough(s). Guidance on the use of air quality assessment applications is available in the Department for the Environmental, Food and Rural Affairs (Defra) Technical Guidance Note LAQM.TG(03).
Appendix 3: Air Quality Assessment Toolkit, provides details of the information that is likely to be agreed with a local authority Air Quality Officer prior to an Air Quality Assessment being undertaken. It is hoped that this checklist will cut out ‘consultation fatigue’ between developers, or their agents, and local authority officers.
2.2 Developments that require an air quality assessment
The overall outcome of an air quality assessment is to determine whether the development will have a significant impact on air quality or whether the existing air quality environment is unacceptable for the proposed development.
The three main ways a development may have a significant impact are:
1. If the development is likely to cause a deterioration in local air quality (i.e., once completed it will increase pollutant concentrations)
2. If the development is located in an area of poor air quality (i.e., it will expose future occupiers to unacceptable pollutant concentrations)
3. If the demolition/construction phase will have a significant impact on the local environment (e.g., through fugitive dust and exhaust emissions). \[Note the proposed London-wide Best Practice Guidance entitled The Control of Dust and Emissions from Construction and demolition should help reduce emissions from this stage of a development.
The Environmental Impact Assessment (EIA) process is likely to require a detailed study of the effects of a development on air quality, particularly where a development is to take place in the urban environment or in an AQMA. In such cases, the approach set out in this guidance note should be followed. Most proposals for commercial or industrial installations that have the potential to emit pollution (e.g., ‘Part A’ installations) will also normally require an air quality assessment under the EIA regulations(^5). Small industries, such as ‘Part B’ installations, may still require an assessment as part of a permit application under the Pollution Prevention and Control (PPC) regime(^6), as too would waste handling activities(^7), and the same assessment can often be used to help determine the impact of the development in terms of air quality for a planning application. If for whatever reason planning permission is being sought in the absence of an assessment having been carried out for a permit application or similar, then local authorities should require one to be submitted.
There are likely to be many other situations where developments that do not require a full EIA will nevertheless warrant an air quality assessment as part of the planning application. Developers should always check with the local authority to determine whether an air quality assessment is required before submitting a planning application.
Where it is clear from the initial specification of the development that it is likely that the development will have a minimal impact on air quality, but an air quality assessment may still be required (e.g., within an AQMA), developers may wish to consider identifying air quality mitigation measures from the start as part of the development, instead of undertaking a full air quality assessment. This course of action is at the discretion of the local authority Air Quality Officer, and so it is important that communication between developers, or their consultants, and the local authority takes place at an early stage of the decision making process. This does not apply to applications where an EIA under the town and country planning regulatory regime is required.
When considering issues of relevant exposure it is advisable to refer to the ongoing borough Review and Assessment, carried out as part of the Local Air Quality Management duties, specified by the Environment Act 1995. Also, wherever possible, air quality assessments should be carried out so as to allow comparison with a borough Review and Assessment.
**Key Points:** Local authorities will consider the following issues when determining whether an air quality assessment should normally be undertaken:
- Locality of development – including relevant exposure;
- Length of time and scale of demolition/construction phase;
- Likely increase in traffic levels from existing base (either through servicing or parking requirements);
- New industrial development (e.g., boiler plant/energy production/permitted installations/authorised processes);
- Size of development - residential/commercial floor space or number of units;
- Street canyons and stationary or queuing traffic;
- Increase in HDV movements (e.g., more than 20 per day), such as for lorry parks, depots, bus stations;
- New rail, road building and signalling, bridge, tunnel, port or airport developments;
- Waste handling activities.
**Note:** This list is not exhaustive and other factors may determine that, in the local authority’s opinion, an air quality assessment is required.
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(^5) The Town and Country Planning (Environmental Impact Assessment) (England and Wales) Regulations 1999, SI 293/1999.
(^6) The Pollution Prevention and Control (England and Wales) Regulations 2000, SI 1973/2000.
(^7) Waste Management Licensing (England and Wales) Regulations 1994 (as amended). 2.3 General principles of air quality assessments
There are two primary factors that impact upon the AQ assessment of a proposed development:
- **Site suitability**: it should be recognised that a development in an area that is already exceeding AQ limits could have a detrimental impact upon its residents;
- **Impact of development**: the impact of the development on the environment needs to be detailed. An air quality impact assessment should clearly indicate the likely change in pollutant concentrations (relevant to the air quality objectives(^8)) arising from the proposed development—during both the construction and operational phases. The assessment must consider the *difference* in air quality as a result of the proposed development.
There is no single, definitive method for carrying out a detailed air quality impact assessment, but the method must be appropriate for the development. For some developments screening models may be acceptable, provided they can be demonstrated to work and are suitable for the urban environment. Where a detailed dispersion modelling is required, developers should consult the local authority’s air quality officer about the proposed modelling technique, to ensure it is appropriate for the air quality assessment.
Consistency is important in all air quality assessments and this guidance note is particularly concerned with air quality assessments where dispersion models are to be used. The scope for inconsistency is greater due to the range of different possible model inputs in such situations.
Where practicable, air quality assessments should take into account the cumulative air quality impacts of other developments, both within the authority and neighbouring boroughs. These should include both committed developments (i.e., those proposals that have been granted planning permission at the time the assessment is undertaken), as well as other proposals which planning officers consider are likely to proceed. This will ensure that a realistic scenario of air quality in the AQMA is presented for both the ‘baseline’ and ‘with development’ predictions of the air quality impact of the development.
The granting of outline planning permission should follow the precautionary principle. In the case of high-risk developments a full EIA is likely to be required, therefore the information provided should be the same as that of a full planning application. However, where a development is seen as a lower risk, outline planning permission may be granted. Local authorities should ensure that suitable planning conditions are attached to the outline planning permission requiring further consideration to be given to environmental issues at a later stage, before detailed permissions is granted. This issue is dealt with in further detail in Annex 1 of PPS23: Pollution Control, Air and Water Quality.
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(^8) The Air Quality (England) (Amendment) Regulations 2002, SI 3043/2002. **Key Points:** An air quality assessment must demonstrate how a development would affect pollution concentrations in relation to health based statutory and proposed air quality standards and objectives.
| This would normally involve dispersion modelling to: | |---------------------------------------------------| | • Assess the current air quality situation in the locality; | | • Estimate emissions of local air pollutants from the development; | | • Predict statistics relevant to the air quality objectives *without* the development in place relative to the year of opening and air quality objectives (EU Limits year 2010 or relevant EU limit years)- the baseline scenario; | | • Predict statistics relevant to the air quality objectives *with* the development in place in the same years; | | • The cumulative impact of developments should be considered. |
Modelled baseline scenarios should also be checked against the local authority’s predicted baseline scenarios, to ensure that they broadly agree. If not, the predicted pollutant concentrations, without development, might show an exceedance of air quality objectives where a local authority’s Review and Assessment did not, or vice-versa; full explanations should be given for differences in modelling approached and assumptions. The factor of greatest importance would be the *difference* in air quality associated with the proposed development compared to the baseline.
### 2.4 Choosing a dispersion model
Dispersion models should be used in almost all cases for large developments, or those developments proposed in areas where air quality is approaching or exceeding the relevant standards or objectives. Defra guidance *LAQM.TG (03)* suggests models that can be used for air quality assessments— it could be beneficial to confirm the selection of the model with the local authority. The model should be capable of taking into account all relevant emission sources within London, for example; line (major road) and area (minor road, domestic heating, individual boilers, commercial etc.) sources. The application should also be able to include point sources (i.e., chimney stacks) from nearby industrial sources. Where relevant the model should be able to determine the effect of height on air pollutant concentrations, if relevant for the planning application under consideration.
### 2.5 Model input data
The assessment should provide a transparent account of the modelling undertaken, all assumptions made and input data used. The local authority may request an audit of the assessment, in which case the developer must provide any extra appropriate data requested.
#### 2.5.1 Emissions data
The Greater London Authority (GLA) has responsibility to compile an atmospheric emissions inventory for London. This inventory is annually updated using best available data and is used as the basis for all London local authorities’ air quality Review and Assessment reports.
The most recent version of the London Atmospheric Emissions Inventory (LAEI) should be used for an air quality assessment within London, unless significantly better data are
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9 LAQM Technical Guidance. LAQM.TG (03), Defra 2003. available. Developers can obtain this inventory directly from the GLA Air Quality Team\\textsuperscript{10}. Road traffic emission factors are incorporated into the LAEI but can also be obtained from the Emission Factor Toolkit (v2e)\\textsuperscript{11}. Comparison should be made with monitoring data from Defra’s Automatic Urban and Rural Network or the London Air Quality Network where appropriate\\textsuperscript{12}.
If other emission data is needed for specific situations, such as more recent emission factors on idling, slow speeds or cold starts, they should be shown to be consistent with those used in this inventory; further information can be sought from the GLA or local authority.
Except for situations where a distant major source has a significant effect on pollution levels in the area of interest, only major roads and stacks in the vicinity of the development need be included explicitly. The study should take into account the proposed model output area, which may include nearby sensitive receptors and other local hot spots of concern to the local authority.
Background air pollution can be accounted for by using urban background data from a nearby monitoring station where the data is sufficiently relevant to the study area. However, care should be taken to avoid double counting emissions if the urban background concentrations are used.
Distant major sources within London should be included within aggregated grid sources and must be included when using rural background data. Where a model is unable to include all emissions sources across London in this manner, it should be demonstrated that the omission of these sources does not affect the model results. Minor roads in the immediate vicinity, which are congested or show large increases in traffic and which have been included in the transport assessment, should also be modelled.
Further information on emissions and atmospheric emissions inventories, can be found in the Defra’s technical guidance document \\textit{LAQM.TG (03)}.
\\subsection\*{2.5.2 Time-varying emissions}
Traffic flows and speeds, and hence emissions, vary throughout the day; if appropriate emissions from vehicles should vary within the model, by time of day and by day of week. Where possible, time-varying traffic movements should be based on local information, for instance a local network of automatic traffic counters (ATCs). This information is most applicable for assessments looking at short-term objectives.
The additional density of emissions that occurs during traffic congestion needs to be properly addressed in the assessment. This is particularly important where that proposed development is likely to result in increased congestion or increased queue length. For industrial processes, these should be modelled to vary in time as would be expected by the authorisation or permit.
\\subsection\*{2.5.3 Supplementary traffic data}
Where a transport assessment (TA) has been prepared for a proposed development, modelled or predicted development traffic flows in the TA should generally be used as the
\\begin{footnotesize} \\begin{itemize} \\item \\textsuperscript{10} GLA Air Quality contact: 020 7983 4492. \\item \\textsuperscript{11} Emission Factor Toolkit (v2e) currently available from http://www.casellastanger.com/modelling_helpdesk/subjects/emission_factors_toolkit.asp \\item \\textsuperscript{12} The Mayor’s AQ Strategy. September 2002. \\end{itemize} \\end{footnotesize} basis for the calculation of ‘with development’ emissions and subsequent model runs. **Before an air quality assessment based on a TA is undertaken, the TA should be approved by the local authority’s traffic planners, in consultation with their air quality officers.** If this does not happen, developers risk undertaking an air quality assessment on the basis of traffic proposals that may subsequently change, risking the assessment becoming obsolete. Through liaising with traffic engineers and dispersion model users, it is usually possible to obtain traffic data in a suitable format to perform an emissions calculation.
Where the proposed development is likely to result in additional congested traffic conditions, the TA will need to provide sufficient information to quantify the times when queuing around junctions is likely to occur. Particular care should be taken in selecting appropriate traffic speeds.
### 2.5.4 Weather data
The format required will depend on the model to be used, and should be checked with the supplier of the dispersion model.
**Key Points:**
- Weather data should be taken from an appropriate and representative site with a full dataset;
- At least one year of hourly-sequential data should be used;
- In adopting a precautionary approach, it is currently recommended that suitable ‘worst-case’ MET year be used, as well as a ‘typical’ MET year.
### 2.5.5 Model specific data
Depending on the model used and the area in question, there are many parameters that should be agreed prior to modelling being undertaken.
**Key Points:**
These might include:
- Site surface roughness length (typically 1m to 2m in London);
- Minimum Monin-Obukhov length (certain models only);
- The number and dimensions of any street canyons (streets where pollutant dispersal is adversely affected by surrounding buildings);
- Release height of aggregated sources (grid or volume sources).
### 2.5.6 Background pollution data
Pollution can be carried into London or into the modelled area from non-local sources. If this is smaller than the whole of the London area, it must be taken into account. Validated and ratified monitoring data should be taken from an appropriate background site or from the National Air Quality Archive(^\\text{13}), background emissions data can also be gathered from the National Atmospheric Emissions Inventory database(^\\text{14}), in most cases the same year as the
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(^{13}) [http://www.airquality.co.uk/archive/laqm/laqm.php](http://www.airquality.co.uk/archive/laqm/laqm.php)
(^{14}) [http://www.airquality.co.uk/archive/laqm/laqm.php](http://www.airquality.co.uk/archive/laqm/laqm.php) weather data will be used; however, there maybe occasions when data from different years maybe appropriate. The developer should agree in advance with the local authority’s Air Quality Officer which background data should be used.
2.6 Pollutant-specific concerns
If a development is expected to alter traffic flows, PM$\_{10}$ and NO$\_2$ would normally be modelled, since widespread exceedences of these pollutants are predicted across much of London, and motor vehicles are a significant source of each. If the development is itself a significant emitter, pollutants relevant to the type of development need to be taken into account (for instance, SO$\_2$ and NO$\_2$ should be considered for an oil-burning process or benzene from a petrol station or refinery).
The results for local air pollutants should be compared against air quality objectives. Any likely exceedences or worsening of air quality as a result of the development must be highlighted.
Local Concerns
2.6.1 Nitrogen dioxide (NO$\_2$)
NO$\_2$ is derived from NO$\_x$ (oxides of nitrogen) via a series of complex chemical reactions. An empirical method or a chemistry scheme may be used to derive NO$\_2$ from NO$\_x$.
Key Points:
- All inputs relevant to the chosen chemistry scheme or a NO$\_x$:NO$\_2$ conversion scheme should be used (see LAQM.TG(03)) and detailed in the report;
- The model’s NO$\_x$ outputs should be shown. A full table of outputs should be shown in the appendix, identifying road contributions, adjusted road contributions and total concentrations. The details of the verification process should also be included.
2.6.2 Fine particles (PM$\_{10}$)
The objective for PM$_{10}$ is based on a gravimetric measurement. Any PM$_{10}$ modelling study should present results as a gravimetric equivalent. Projection of PM$\_{10}$ for future years should follow the Defra guidance LAQM.TG (03).
Key Issues:
- PM$\_{10}$ should be calculated as a gravimetric equivalent;
- Secondary and coarse PM$\_{10}$ components should be included.
2.6.3 Sulphur Dioxide (SO$\_2$)
The objective for SO$\_2$ that is likely to be hardest to meet is the 15-minute objective. Key Points:
- The assessment should demonstrate that the modelling methodology provides a reasonable assessment against the 15-minute and 1 hour objectives.
2.6.4 Other pollutants
There are other local air pollutants (including those not in the Air Quality Regulations) that may also be relevant to specific developments. The developer should check with the local authority to determine whether they need to consider the implications of other pollutants or take into account any new air quality objectives. Other pollutants could include:
- Carbon monoxide (CO)
- PAH (poly aromatic hydrocarbons)
- PM$\_{2.5}$
- Heavy metals
- Benzene
- Industrial pollutants eg dioxins, halides
- Ozone (O$\_3$)
Global concerns
2.6.5 Climate Change Emissions
Although these pollutants are not included in the Air Quality Regulations for Local Air Quality Management, they are of global importance for their contribution to climate change. Many policies that reduce traffic flow will tend to bring about reductions in both carbon dioxide (CO$\_2$) and local air pollutants. However, although these pollutants are closely linked, it cannot be assumed that this will be the case for all measures$^{15}$. Therefore, it is important to consider total CO$\_2$ emissions alongside an air quality assessment (both local and remote emissions).
The integration of climate change policies with the planning process is a progressive move, and it is recognised that local authorities are at different stages of incorporating climate change policies into their general practices. The development of Local Implementation Plans, setting out how London borough’s are going to implement the Mayor’s Transport Strategy, should take into account Air Quality Action Plans, and will facilitate this process; typically incorporating developments which lead to an increase in traffic generation.
2.6.6 Estimating Climate Change Emissions
A planning application should give details, in its air quality assessment, where the design, construction and operation of the development has accounted for reductions in Climate Change emissions. Any potential ‘trade-off’ issues between local air quality and climate change emissions should be acknowledged within the assessment.
CO$\_2$ emissions from sources such as traffic and buildings can be estimated from the London Atmospheric Emission Inventory. Such data may be useful to a borough when considering off-setting the impact of development.
$^{15}$ AQEG. Air quality and climate change: A UK perspective (draft) 2.7 Model output area
The output results should cover the area likely to be affected by the proposed development. For a development that affects traffic movements, the output should cover the area where traffic movement is significantly affected, i.e., as a minimum all the roads included in the transport assessment.
The results produced would normally be in the form of a detailed contour plot of predicted pollutant concentrations and scale of air quality change. A map showing predicted concentrations with the development in place and a map of the difference in concentration with and without the development should both be produced. Ideally, the grid spacing for any contour plots should not be more than 5 metres, to ensure robust definition.
In certain cases it may be acceptable for the assessment to predict concentrations at a number of carefully selected receptors. The developer should agree the output area, location and number of receptors in advance with the local authority. All receptors should be presented on an appropriately scaled Ordnance Survey map.
In the case of tall buildings, developers may need to consider the vertical as well as the horizontal dispersion of pollutants in terms of model outputs. Developers should consider the surrounding environment of the development - any high level point sources, such as chimney stacks or ventilation outlets, should be identified to ensure that the proposed development does not encroach upon the plume dispersion. This is vital with the increase in high-rise developments within London. Developers should therefore take into account any research, emerging studies or guidance on this matter(^\\text{16}). The Building Research Establishment (BRE) has produced reports concerning the dispersion of pollutants over a building envelope.
Authorities may require source apportionment data in order to evaluate mitigation and off-set strategies.
**Key Points:**
- The area affected by the development should be adequately covered by the model output;
- The output should be on an Ordnance Survey map or similar and in a table;
- Maps of the difference with and without the development should be provided where possible;
- Locations and height of receptors should be clearly indicated (on the map);
- The assessment should consider whether the development will create new areas of exposure or increase existing exposure;
- The difference in concentration should be given in (\\mu g/m^3);
- The cumulative impact of multiple developments within a localised area should be considered.
2.8 Model Verification
Because of the number of uncertainties associated with dispersion modelling, the performance of the model being used in relation to measured pollution concentrations in a similar environment should be demonstrated. For air quality assessments in London, it should be demonstrated as a minimum that the model can adequately predict pollution concentrations in a similar urban environment, preferably within the borough where the development is proposed, since model performance may vary from location to location.
(^{16}) Also see DAPPLE research project http://www.dapple.org.uk/ Where the model is used to predict statistics relevant to the air quality objectives (such as percentiles), the evidence of model performance should also address this. Evidence of this should either be incorporated into the report, or submitted with it.
Wherever possible, it is preferable to verify the model against measured pollution concentrations using the same input parameters as for the air quality assessment. Within London, there are many continuous monitoring sites that may be used to validate a modelling exercise. Sites within London are normally associated with the Automatic Urban and Rural Network (AURN)(^\\text{17}) or the London Air Quality Network (LAQN)(^\\text{18}), but the local authority may collect its own data from a nearby air pollution monitoring station; this can also be used for any necessary validation work. For a more complete description of the approach to the verification of a model please see LAQM.TG(03).
**Key Points:**
- Evidence of model performance must be provided (e.g., with the release of the version of the model used) or where possible from a new site-specific validation exercise;
- The accuracy in terms of margin of error or uncertainty of the results must be stated explicitly;
- Any scaling factor applied to model outputs (e.g., to adjust results according to observed data) must be clearly stated;
- The model’s effectiveness at predicting statistics relevant to the air quality objectives must be demonstrated.
### 2.9 Determining significant impacts on air quality
One of the key concerns with regard to assessing the air quality impact of a development in London is its impact on human health. It is important that an air quality assessment evaluates modelled air quality in terms of changes in pollution concentrations where there is relevant public exposure. The current Air Quality Regulations are concerned with areas that exceed air quality objectives but this may be revised to favour overall exposure reduction. This guidance follows this approach, where any development that may lead to additional air pollution problems, even if it is outside an AQMA, could be significant. Local Authority Air Quality Officers will make a judgement on the likely impact of each development, based on the results of the air quality assessment and their professional experience. The local authority may also consider the impact of the development on air quality in neighbouring authorities.
The following diagram should assist in determining whether the application is significant in terms of air quality. In line with PPS23, air quality can be a material consideration in the planning process. **Only zero-emission developments are unlikely to have any impact on local or global air quality** and therefore mitigation should be a consideration for all developments. Please refer to Section 3 on Mitigation.
(^{17}) [http://www.airquality.co.uk](http://www.airquality.co.uk)
(^{18}) [http://www.londonair.org.uk](http://www.londonair.org.uk) Determining significant impacts on air quality
Is the development located in an AQMA?
No
Would the development contribute to air quality exceedances or lead to the designation of a new AQMA?
No
Is it likely to increase emissions of or increase/introduce new exposure to PM10?
No
AQ is not a significant consideration
Yes
AQ has a highly significant consideration
Yes
AQ is an overriding consideration
No
AQ is a significant consideration
Is it likely to cause a worsening of air quality or introduce new exposure into the AQMA?
Yes
AQ is a highly significant consideration
No
AQ is not a significant consideration
Mitigation measures may still be considered
Will it interfere with or prevent implementation of measures in the Air Quality Action Plan?
Yes
AQ is an overriding consideration
No
AQ is a significant consideration
Note: Where significant is used, it will be based on the professional judgement of the Local Authority officer. In determining both the significance of exposure to air pollution and the levels of mitigation required, consideration should be given to the following Air Pollution Exposure Criteria (APEC) table:
| APEC – A | Applicable Range Nitrogen Dioxide Annual Mean | Applicable Range PM10 | Recommendation | |----------|-----------------------------------------------|-----------------------|----------------| | > 5% below national objective | Annual Mean: > 5% below national objective 24 hr: > 1-day less than national objective | No air quality grounds for refusal; however mitigation of any emissions should be considered. |
| APEC – B | Applicable Range PM10 | Recommendation | |----------|-----------------------|----------------| | Between 5% below or above national objective | Annual Mean: Between 5% above or below national objective 24 hr: Between 1-day above or below national objective. | May not be sufficient air quality grounds for refusal, however appropriate mitigation must be considered e.g., Maximise distance from pollutant source, proven ventilation systems, parking considerations, winter gardens, internal layout considered and internal pollutant emissions minimised. |
| APEC – C | Applicable Range PM10 | Recommendation | |----------|-----------------------|----------------| | > 5% above national objective | Annual Mean: > 5% above national objective 24 hr: > 1-day more than national objective. | Refusal on air quality grounds should be anticipated, unless the Local Authority has a specific policy enabling such land use and ensure best endeavours to reduce exposure are incorporated. Worker exposure in commercial/industrial land uses should be considered further. Mitigation measures must be presented with air quality assessment, detailing anticipated outcomes of mitigation measures. |
*Note: Applicable ranges assume downward pollutant trend has been established.* 2.10 Reporting the Assessment
In summary, the following information should be provided as a minimum when reporting an air quality assessment:
- A description of the methodology used
- Evidence of model performance or validation results
- Details of any extra emissions calculations
- Input data- sources included, input parameters specific to the model and site, meteorology etc
- Years modelled
- Assessment against relevant air quality objectives
- Model output data, on maps where appropriate
- Discussion of results
- Determination of significance
- Conclusions
2.11 Audit trail
The assessment should provide a transparent account of the modelling undertaken and all assumptions made. Should an audit of the assessment be required, the local authority may request extra data. 3. Mitigation of air quality impacts
This guidance has been designed to help local authorities to identify those developments that are likely to have significant air quality impacts. The local authority will make recommendations based on the assessment result in the flow chart, but it is not the case that all those where air quality is an overriding or highly significant consideration is necessarily refused. Instead, local authorities should work with developers to explore mechanisms to ensure that a development has a beneficial impact on the environment. In terms of air quality, this may be through careful design of the development or by securing mitigation or off-setting measures through planning obligations or conditions that will allow the development to go ahead.
3.1 Construction phase
Emissions and dust from the demolition and construction phase of a development can have a significant impact on local air quality, especially from large developments where this phase can take many years. The APPLE working group has produced draft Best Practice Guidance entitled: The Control of Dust and Emissions from Construction and Demolition that looks at best practical means to control dust and emissions from construction sites. This guidance is due to be adopted in partnership between London Councils and the Mayor of London in 2006, and boroughs will be able to use this in the planning process to help minimise the impact from fugitive dust emissions and vehicle exhausts.
3.2 Design of the development
The design of the development will have a bearing on the overall impact that it will have on the environment. The Mayor’s London Plan identifies that suitable design and construction constraints have to be placed on developments to ensure the protection of the local air quality, and every effort should be taken to achieve an integrated approach to air quality and emission reductions through improved energy efficiency and energy use(^\\text{19}).
Careful consideration should be given to the site characteristics of the development, as particular elements of a scheme may be more sensitive to air pollution than others, for example a children’s play space should be located away from roads with high levels of air pollution. The appropriate design, layout, orientation and construction can avoid increasing exposure whilst minimising energy demand and energy loss. Further details of design approaches can be found in the Mayor of London’s Sustainable Design and Construction Supplementary Planning Guidance (SPG).
The local authority should consider issues such as ventilation provision and location of opening windows and doors to improve indoor air quality. In the case of tall buildings, mixed use can help make development acceptable by, for example, placing residential use on higher storeys away from sources of air pollution (and noise) at ground level, allowing for balconies and open-able windows, while lower floors can accommodate commercial uses where mechanical ventilation and windows that cannot be opened are more acceptable. The use of outside space is also important, and roof gardens and roof terraces have been encouraged by the Mayor(^\\text{20}). However, exposure levels should still be considered; with the location of the roof terrace (height of open space), and adjacent roof exhausts and intake vents, all being factors that can impact upon the exposure levels at these open spaces.
(^{19}) The London Plan: Spatial Development Strategy for Greater London. February 2004. pg162. (^{20}) Living Roofs: Promoting green roofs, roof terraces and roof gardens across London. GLA. June 2005. 3.3 Building emissions
The Mayor of London’s SPG on Sustainable Design and Construction highlights the impacts that buildings can have on the local and global environment. An estimated 20% of NO\\textsubscript{x} in London is emitted directly from buildings. In addition, buildings contribute an estimated 24% of the total CO\\textsubscript{2} emissions directly contributing to climate change. Together with the Mayor’s London Plan, the SPG presents a number of requirements that developers should meet, where possible, including the following:
3.3.1 Energy efficiency
Part L of the Building Regulations identifies the legal minimum a development needs to meet in terms of energy efficiency in the UK. However, in London developers should look to meet more stringent demands that have been set by the Mayor in the London Plan, with the overarching aim of reducing CO\\textsubscript{2} emissions, improving energy efficiency and increasing the proportion of energy generated from renewable sources. Many of these options will have direct synergies with the improvement of local air quality.
A development may increase local pollutant concentrations whilst making a positive impact in other areas. For example, a CHP plant serving 1000 dwellings will give rise to increased pollutant concentrations from a single point source. However, there are potential trade-offs with the removal of 1000 less efficient, individual boilers. Methods to reduce the impacts of large-scale CHP need to be planned into a development at an early stage. These include:
- using a fuel suitable for the location (gas produces lower emissions than oil or wood);
- correctly calculating the height of boiler flues;
- incorporating technologies that reduce emissions, such as low NO\\textsubscript{x} burners and fan dilution;
- ensuring the energy from the installation is fully utilised.
Consideration of the net balance of emissions may be more appropriate in such a case rather than just considering local pollutant emissions in isolation.
3.3.2 Renewable energy
The Mayor’s London Plan requires 10%\\textsuperscript{21} of energy demand in new development to be generated by renewables on site. A large number of boroughs have set a 10% proportion of energy to be supplied from renewable sources, and some boroughs are seeking even higher renewable energy contributions. There are a number of different energy options and technologies available, and developers should select the most favorable technology to bring about the greatest reduction in CO\\textsubscript{2} emissions. Details and guidance of available techniques and their suitability can be found in the Mayor’s Energy Strategy and London Renewable’s publication: Integrating renewable energy into new developments: Toolkit for planners, developers and consultants\\textsuperscript{22}.
3.3.3 Supply of energy
Developers should consider supplying energy schemes such as tri-generation combined heat and power (CHP), or district heating from the outset. These are more efficient at reducing
\\textsuperscript{21} At the time of writing, the Mayor’s Draft further alterations to the London Plan, published on 29\\textsuperscript{th} September 2006, have increased this target to 20% - however, this is still only as yet a draft target.
\\textsuperscript{22} http://www.london.gov.uk/mayor/environment/energy/docs/renewables_toolkit.pdf emissions than installing gas central heating or condensing boilers in each dwelling, and can lead to reduced emissions of local air pollutants and CO₂.
Developers need to consider how dwellings will remain cool once they are occupied. Air conditioning can put additional strains on energy consumption and should be considered as a last resort. Air conditioning can be designed out by the use of well designed passive ventilation, sensible building orientation and using materials with a high thermal mass. Renewable energy sources should always be used in association with any air conditioning installation.
3.4 Planning Conditions
In Annex 1 of PPS23, it is stated that there may be some cases where it is appropriate to use planning conditions to control aspects of a development that are not covered by a pollution permit. Examples include controlling transport modes, hours of operation and reducing air pollutants and dust from certain phases of the development, such as construction. A planning condition has to be necessary and relevant to the development to be valid. Further advice can be found in Government Circular 11/95.
3.5 Planning obligations
Annex 1 of PPS23 also describes how section 106 agreements can be used to require developers to provide assistance or support to enable local authorities to implement any actions in pursuit of their Air Quality Action Plan. Typically, measures will focus on ways to reduce the need to travel or encourage more sustainable travel, but it may often be appropriate for developers to fund measures elsewhere within the AQMA as a way to off-set any predicted increases in pollutant emissions. The following are examples of measures that London local authorities have successfully secured in the past through section 106 agreements. Further advice can be found in Government Circular 05/2005.
3.5.1 Travel Plans
All new developments should make provisions to encourage cycling and walking and wherever possible, seek submission of Travel Plans that encourage staff and visitors to use more sustainable modes of transport rather than rely on car use. Car parking should be discouraged within AQMAs, particularly for developments located near to public transport. Measures in a Travel Plan need to produce quantifiable emission benefits and ideally an element of monitoring should be included in the agreement.²³
The Trip Rate Assessment Valid for London (TRAVL) database is a useful tool to assist in estimating the effect of proposed changes in land use on transport patterns. In addition, TRAVL also contains a Travel Plan monitoring and assessment function, enabling the effectiveness of individual travel plans to be compared over time and with other sites²⁴
Examples of individual measures within a Travel Plan include:
- Secure cycle parking and changing facilities;
- Safe pedestrian routes;
- Facilities for public transport, such as bus stops and lay-bys;
²³ Further information can be obtained from http://www.travl.org.uk • Management and use of parking spaces, so that priority is given to certain categories of people, e.g., disabled people, people with children, visitors, or cars with more than one occupant, electric or low emission vehicles; • The removal of parking spaces after a specified period, or when access to the site is improved (e.g., new public transport routes, cycle lanes); • Car free housing developments; • The provision of information on public transport, walking and cycling access to the site; • Details on deliveries to the site, covering specification of vehicles and hours of operation, and specifications for lorry parking and turning spaces; and junction and road layouts; • Employment of a travel plan co-ordinator for the site with responsibility for monitoring; • Setting targets on the proportion of employee trips to be made by public transport and other alternative modes of transport; • Setting up or participating in City Car Clubs for residents or employers.
3.5.2 Use of clean/alternatively fuelled vehicles
Promoting the provision of refuelling for alternative fuels such as liquid petroleum gas, liquefied/compressed natural gas or biogas at local fuel stations, encouraging suitable locations for new refuelling facilities, or installing electric vehicle charging points in car parks, can all encourage people to use cleaner-fuelled vehicles. Site operators or occupiers can be required to use clean fuel fleets or restrictions can be placed on them to use specific classes and types of vehicles. They can also be required to monitor the maintenance and carry out emissions testing of the fleet.
3.5.3 Low Emission Schemes and Strategies
All reasonable means to minimise emissions from a scheme should be adopted. Measures may include using opportunities to regulate vehicle emissions, either in relation to European Emission Standards or CO₂ emissions, in line with Vehicle Excise Duty Bandings. Consideration should be given to both incentives and disincentives to influence vehicle emissions in both commercial and residential usage. A more holistic approach would consider all types of emissions from a development and there may be opportunities to off-set vehicle emissions with energy emissions and vice versa.
3.5.4 Air quality monitoring
Section 106 agreements can be secured to require the operator or occupier to monitor emissions or concentrations of pollutants at off site locations. London local authorities have also secured section 106 agreements to require developers to contribute to their borough wide air quality monitoring programmes. In these cases, capital funding may be sought for the purchase, installation, operation or maintenance of new equipment.
3.5.5 Other
A local authority can ask for appropriate funds through the section 106 process for any reasonable measure that can help them improve air quality. This means there will be other opportunities to improve air quality that are not highlighted above. Appendix 1: The Planning Context
Guidance relevant to local planning authority’s air quality responsibilities is set out in the following planning policy guidance:
**National and London Planning Guidance**
*Planning Obligations Circular 05/05* This replaces Circular 1/97 and provides revised guidance to local authorities on the use of planning obligations under section 106 of the Town and Country Planning Act 1990 as substituted by the Planning and Compensation Act 91.
*Planning Conditions Circular 11/95* This circular sets out guidance on the use of planning conditions for situations that can enhance the quality of the development. Conditions need to be fair, reasonable and practical and meet the tests set out in this document.
*PPS23: Planning and Pollution Control (2004)* This document has recently been revised to include requirements under the Environment Act 1995 and states that pollution issues must be taken into account as appropriate planning decisions. In terms of air quality, Annex 1 paragraphs 1.48-1.50 set out how planning conditions or obligations can be used to address the impact of the proposed development on air quality. Appendix 1G gives examples of cases where air quality may be important in planning.
*PPG6: Town Centres and Retail Developments (1996), PPG12 Development Plans (2000) and PPG13 Transport (1999)* PPG 6 and PPG12 deal with air quality indirectly by promoting sustainable forms of development i.e., development in locations such as town centres that are well served by public transport in order to reduce traffic generation and emissions. Draft revised PPG13 emphasises the importance of local air quality as an “important consideration in the integration of planning and transport” (paragraph 9). It also states the importance of well-designed traffic management as a measure to reduce local air pollution.
*Mayor of London- The London Plan: Spatial Development Strategy for Greater London (2004) and Air Quality Strategy (2002)* The Mayor of London is responsible for strategic planning in London, and his London Plan replaces strategic guidance RPG3. Borough’s development plans must conform to the plan. Policy 4A.6 on Improving Air Quality sets out that the Mayor and boroughs should implement the Mayor’s Air Quality Strategy to achieve reductions in pollution emissions in the new developments. For example:
- Improving the integration of land use and transport policy by reducing the need for car travel;
- Setting out criteria for different pollutants, against which plans and policies can be assessed;
- Ensuring that air quality is taken into account as a material consideration at the planning application stage.
*Policy Guidance LAQM.PG(03), Defra (Department for Environment, Food and Rural Affairs)* This guidance has a chapter on Air Quality and Land Use Planning that states “Any air quality consideration is capable of being a material planning consideration, in so far as it affects land use”. The guidance also states “All planning applications should be supported by such information as is necessary to allow a full consideration of the impact of the proposal on the air quality of the area”.
London Councils Air Quality and Planning Guidance
January 2007 NSCA guidance Development Control: Planning for Air Quality This national guidance was published in 2004 to provide a framework for air quality considerations that need to be taken into account in the development control process. The guidance provides a new approach to addressing air quality impacts compared to previous documents, such as the ALG Planning Technical Guidance issued in 2001.
Local Planning Policy
In London, the major cause of air pollution is road traffic. Although many measures to solve this problem are outside the scope of planning, such as stricter controls on vehicle emissions, there is much local planning authorities can do. The planning policy response should concentrate on policies to reduce the need to travel and policies to encourage the use of public transport, walking and cycling. There should be close co-operation between Planners, Traffic engineers and Environmental Health Officers to integrate land use and transport policies to achieve air quality improvements.
Unitary Development Plans (UDP), Local Implementation Plans (LIP) and Local Development Frameworks
Relevant policies in these documents need to integrate reducing travel with reference to local air quality management. Examples of such policies include introducing low emission or clear zones that limit vehicles entering areas unless they comply with specified emissions limits.
Air Quality Policies
A specific policy on Air Quality Management Areas could be included in the local authorities’ development plans. Policies on air quality should make clear that any development being proposed that is potentially polluting e.g., will significantly increase the number of vehicle trips, involve polluting industrial activities, energy generation projects etc. will need a detailed air quality assessment.
Restrictive Parking Policies
Policies that impose restrictive parking standards in areas where development is likely to impact on air quality and lead to exceedences within the AQMA, particularly promoting car free or car ‘capped’ housing developments could be adopted. Converting existing off-street car parking spaces and car parks to other uses should also be encouraged.
Supplementary Planning Guidance and Planning briefs
For each Air Quality Management Area, Supplementary Planning Guidance notes could be adopted requiring any specific local matters relevant to the development of land. Any planning brief produced for development of land in an Air Quality Management Area should address in detail issues of air quality and how the development will be designed to minimise air pollution from the development. Many Local authorities will have specific AQ SPGs or Sustainable Design and Construction SPGs, which will be relevant to this document. Appendix 2: References
- Development Control: Planning for Air Quality (Guidance from NSCA on dealing with air quality concerns within the development control process) NSCA 2004
- Use of conditions in planning permission. Circular 11/95. ODPM. 1995
- LAQM.PG (03) Policy Guidance (code PB7516), Defra 2003
- LAQM.TG (03) Technical Guidance (code PB7514), Defra 2003
- Mayor of London. Air Quality Strategy: Cleaning London’s Air. 2002
- Mayor of London. London Plan: Spatial Development Strategy for Greater London. 2004
- PPG4 Industrial and Commercial Development and Small Firms (ISBN 0 11 752723 8), DOE 1992
- PPG6 Town Centres and Retail Developments (ISBN 0 11 753294 0), DOE 1996
- PPG12 Development Plans (ISBN 1 85112 349 0), DETR 1999
- PPG13 Transport (March 2001)
- Planning Obligations Circular 05/2005, ODPM 2005
- PPS23 Planning and Pollution Control (ISBN 0117539317), ODPM 2004 Appendix 3: Air Quality Assessment Toolkit
Throughout this Guidance the importance of communication between Local Authority officers and Developments, or their consultants has been shown. It is hoped that this Toolkit will clearly indicate what information is required to satisfactorily complete an AQ Assessment and what information needs to be agreed prior to the assessment taking place.
Stage 1: What information should initially be provided to the local authority in order to determine if there is a need for an Air Quality Assessment.
| Locality of development | Definition of spatial scope, including identification of all relevant exposure. Is the site located in and Air Quality Management Area, or will it impact upon an Air Quality Management Area? | |-------------------------|--------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------| | Traffic Assessment | Local Authority Traffic Planners/Engineers should advise, in consultation with Air Quality officers, what is required for the traffic impact assessment? | | Nature of development | The number of units proposed or commercial floor space. | | Parking spaces | The number of parking spaces that are proposed. | | Energy usage | The planned source of energy and number of appliances; CHP, individual boilers etc. | | Committed developments | Agreement with local planning authority, regarding further developments that should be taken into account. | | Road Access | Will there be any alteration to the access roads, or road layouts as result of the development. | **Stage 2:** If after the information supplied above indicates that an AQ Assessment is required the following information will have to be agreed prior to the AQ assessment taking place.
| What models are to be used? | Identify what screening and assessment model is to be used, need to be informed the model was selected and why it’s appropriate. | |-----------------------------|--------------------------------------------------------------------------------------------------------------------------| | **Emissions** | Identify appropriate emissions inventory, if not LAEI an explanation of reasons will have to be provided. | | **Traffic Speeds** | What traffic scenarios are to be used for the assessment, identify any changes to traffic flow as a result of the development. | | **Traffic Congestion** | As above, local data can be gathered from local authority traffic assessments | | **Weather Data** | Suitable nearest site should be used for Met data, a worst case scenario and typical Met year should be provided. | | **Background Source Data** | Suitable data should be selected in consultation with the local authority. | | **Pollutants to be modelled** | What pollutants are required to be modelled, taking into account the end use and local environment. | | **Agreement on model output** | Single receptors and/or Gridded output? Grid size? | | **How will the model be verified** | Comparison against recent locally collected data. | | **Assessment of construction and demolition dust** | Identification of risk. Proposed mitigation. |
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11d834995c6bd4f06d8bf0e9ec61d40fcdf0fd34 | 1. Purpose
1.1 The purpose of this report is to seek the approval of Cabinet for the revocation of four of Northampton’s Air Quality Management Areas (AQMAs) as identified in a Further Assessment of Air Quality Report from November 2011.
2. Recommendations
2.1 It is recommended that cabinet approval is granted to issue a revocation order for the following AQMAs:
- Barrack Road
- Park Avenue North
- A45 (Riverside)
- Lumbertubs Way 2.2 Draft revocation orders are contained in Appendices 1 – 4 of this report.
3. Issues and Choices
3.1 Report Background
3.1.1 The Air Quality (England) Regulations 2000 regulations identify limits for seven pollutants for which a local authority is required to regularly screen and intervene where an exceedance is identified, normally by declaring an Air Quality Management Area.
3.1.2 Northampton Borough Council is actively engaged in the review and assessment of its local air quality, and has demonstrated that for the majority of pollutants specified in the regulations, that it is compliant with them.
3.1.3 For one pollutant, Nitrogen Dioxide (NO$\_2$), Northampton Borough Council has been required to declare a number of AQMAs due to exceedances of the annual mean objective for this particular pollutant in eleven areas of the Borough. The principal source of this pollutant has been identified as motor vehicles.
3.1.4 In November 2011 the Public Protection Division of Northampton Borough Council completed a further review of the eleven AQMAs previously declared by the Council. This report concluded that the annual average concentrations of NO$\_2$ in four of these AQMAs are now compliant with the relevant Air Quality Objectives and should be revoked. Pollution contours that were used to justify the decision to recommend revocation of the four AQMAs are reproduced at Appendix 5.
3.1.5 The further review report has been submitted to the Department for Environment, Food and Rural Affairs for 3rd party technical appraisal. The conclusions of this report were accepted, and therefore approval is now sought to revoke the Air Quality Management Areas at Barrack Road, Park Avenue North, A45 (Riverside) and Lumbertubs Way.
3.2 Issues
3.2.1 None are identified.
3.3 Choices (Options)
3.3.1 It is not considered that any other choices (options) need to be recommended.
4. Implications (including financial implications)
4.1 Policy
4.1.1 There are no policy implications 4.2 Resources and Risk
4.2.1 No immediate financial implications have been identified for the revocation of an Air Quality Management Area. Northampton Borough Council is required to publicise the revocation of an AQMA (see 4.3.1). However, there is no specified method, e.g. public notice. Therefore the Council may identify the most cost effective method available to it.
4.2.2 In order to keep local businesses and residents abreast of action being taken by Northampton Borough Council, circular letters will be utilised to notify individuals within the areas to be revoked of changes. It is not anticipated that this will create any excessive burden with respect to existing departmental workloads.
4.2.3 Local community groups within the areas affected will also be notified of the revocation of the above-mentioned AQMAs.
4.3 Legal
4.3.1 The guidance set out in Part IV of the Environment Act 1995 Local Air Quality Management Policy Guidance (PG 09) states that;
- Local authorities will be expected to take relevant action within four months following receipt of comments from DEFRA.
- Where a local authority considers it necessary to amend or revoke an AQMA, DEFRA expect the authority to consult all the relevant statutory consultees, local stakeholders, businesses and members of the public.
- Once a revocation has taken place the local authority should submit the order to DEFRA for information. Local authorities should also notify other statutory consultees and publicise the amendment or revocation widely through the local media so as to ensure that the public and local businesses are fully aware of the situation.
4.4 Equality
4.4.1 The recommendations set out in this report apply equally to all residents and businesses in the areas concerned.
4.4.2 The wording of the revocation order takes into account equality issues as it applies equally to all persons.
4.5 Consultees (Internal and External)
4.5.1 Internal: Planning, Transportation and Regeneration, Legal and Finance, Press and PR
External: Northamptonshire County Council, Northamptonshire Primary Care Trust (PCT), West Northamptonshire Development Corporation, Highways Agency, South Northamptonshire Council, Daventry District Council, Kettering Borough Council, Borough Council of Wellingborough, Corby Borough Council, East Northamptonshire Council, Milton Keynes Council. 4.6 How the Proposals deliver Priority Outcomes
4.6.1 Within the Corporate Plan two priorities are identified whereby the revocation of the identified AQMAs helps to deliver priority outcomes. These are identified as:
- CP2 - Creating an attractive, clean and safe environment
- CP7 - Promoting health and well being
4.6.2 The revocation of four of Northampton’s AQMAs should be viewed as a ‘good news’ story since the air quality within Northampton can be considered better as there are now fewer AQMAs within the borough.
4.7 Other Implications
4.7.1 None identified.
5. Background Papers
5.1 Review and Appraisal Report (Ref: FA4-252) 2011 Air Quality Further Assessment for Northampton Borough Council
Neil Polden, Senior Environmental Health Officer, Extension 7648 Appendix 1 – Revocation Order for AQMA No 7 (Draft)
Northampton Borough Council Environment Act 1995 Part VI Section 83(2)(b) Order Revoking an Air Quality Management Order
The Northampton Borough Council (‘the Council’) in exercise of the powers conferred upon it by section 83(2)(b) of the Environment Act 1995 hereby makes the following Order.
1. This Order shall revoke the area known as Air Quality Management Area Order (No 7) for nitrogen dioxide (annual mean objective).
2. The revoked area is shown on the attached map.
Dated this \_\_\_\_\_ day of \_\_\_\_ 2012
THE COMMON SEAL of the NORTHAMPTON BOROUGH COUNCIL was hereunto affixed in the presence of:
Borough Solicitor
Seal Appendix 2 – Revocation Order for AQMA No 9 (Draft)
Northampton Borough Council Environment Act 1995 Part VI Section 83(2)(b) Order Revoking an Air Quality Management Order
The Northampton Borough Council (‘the Council’) in exercise of the powers conferred upon it by section 83(2)(b) of the Environment Act 1995 hereby makes the following Order.
1. This Order shall revoke the area known as Air Quality Management Area Order (No 9) for nitrogen dioxide (annual mean objective).
2. The revoked area is shown on the attached map.
Dated this \_\_\_\_\_ day of \_\_\_\_ 2012
THE COMMON SEAL of the NORTHAMPTON BOROUGH COUNCIL was hereunto affixed in the presence of:
Borough Solicitor
Seal Appendix 3 – Revocation Order for AQMA No 10 (Draft)
Northampton Borough Council Environment Act 1995 Part VI Section 83(2)(b) Order Revoking an Air Quality Management Order
The Northampton Borough Council (‘the Council’) in exercise of the powers conferred upon it by section 83(2)(b) of the Environment Act 1995 hereby makes the following Order.
1. This Order shall revoke the area known as Air Quality Management Area Order (No 10) for nitrogen dioxide (annual mean objective).
2. The revoked area is shown on the attached map.
Dated this \_\_\_\_\_ day of \_\_\_\_ 2012
THE COMMON SEAL of the NORTHAMPTON BOROUGH COUNCIL was hereunto affixed in the presence of:
Borough Solicitor
Seal Appendix 4 – Revocation Order for AQMA No 11 (Draft)
Northampton Borough Council Environment Act 1995 Part VI Section 83(2)(b) Order Revoking an Air Quality Management Order
The Northampton Borough Council (‘the Council’) in exercise of the powers conferred upon it by section 83(2)(b) of the Environment Act 1995 hereby makes the following Order.
1. This Order shall revoke the area known as Air Quality Management Area Order (No 11) for nitrogen dioxide (annual mean objective).
2. The revoked area is shown on the attached map.
Dated this \_\_\_\_\_ day of \_\_\_\_ 2012
THE COMMON SEAL of the NORTHAMPTON BOROUGH COUNCIL was hereunto affixed in the presence of:
Borough Solicitor
Seal Appendix 5 – Pollution Contour Maps
In law, the annual average limit value for NO$\_2$ is 40 μg/m$^3$ (microgrammes per cubic metre). Where exceedances of this limit value are identified and there are areas of relevant public exposure, i.e. where there are residential properties, a local authority is obligated to intervene. The following maps that are presented are pollution contour maps that detail the 2010 annual average NO$\_2$ concentrations modelled in the four AQMAs where approval for revocation is sought. Where there is an exceedance of the 40 μg/m$^3$ intervention level this is represented by a red/pink contour. It can be noted that on each map that all residential properties are located outside of the 40 μg/m$^3$ contour. Barrack Road Contour Pollution Contour Map Park Avenue North Pollution Contour Map Lumbertubs Way Pollution Contour Map A45 (Riverside) Pollution Contour Map
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a3574e160c8d8dde72b94bca114c7fdbbc434a1a | 127 MILLION TERMINAL PASSENGERS\* AT LONDON AIRPORTS IN 2010
\*In 2010, more than 127,200,000 passengers - twice the number of UK population, set foot on London airports. However, not all of them came to the capital, and some haven’t even left the terminals.
PASSENGERS LONDON AIRPORTS IN 2000 vs 2010
2000
- Heathrow 64.3 mln
- Luton 6.2 mln
- Stansted 11.9 mln
- Gatwick 31.9 mln
- City 1.6 mln
2010
- Heathrow 65.7 mln (+2% at 99% capacity)
- Luton 8.7 mln (+41% ‘significant capacity for growth’)
- Stansted 18.6 mln (+56% ‘significant spare capacity, but at inconvenient or less desirable times’)
- Gatwick 31.3 mln (-2% at 95% capacity)
- City 2.8 mln (+76% ‘small capacity for growth’)
In 2000 Heathrow and Gatwick handled 96.2 million people - 83% of all visitors coming to London airports. The remaining three airports had less than 20 million visitors.
In 2010 the percentage of all visitors handled by two main airports fell to 76% - despite a slight increase in the number of visitors. The three smaller airports welcomed 30 million people - an increase of 50% compared to 2000.
INTERNATIONAL PASSENGERS
International passenger movement from and to London airports is dominated by Europe with 74 million passengers, followed by North America at 19, Middle East and Asia at 8 million.
FLIGHTS & PASSENGERS
London airports receive roughly 59% of all passengers and 78% of air freight coming to the UK but only 44% of all flights.
Top 10 destinations for passengers from and to London airports are listed below. It’s important to note that these are the direct destinations of planes carrying passengers from or to London airports, and not final destinations of passengers. Hence absence of destinations which have stopovers on the way - such as Australia - and hence the high position of travel hubs like the US or UAE.
01. United States 13,871,000
02. Spain 12,242,000
03. Germany 8,311,000
04. Italy 7,833,000
05. France 5,639,000
06. Ireland 5,425,000
07. Canada 4,929,000
08. Switzerland 3,982,000
09. Netherlands 3,140,000
10. UAE 2,922,000
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8443768e64bc0f3ceef8092083b69a36ff1d66b4 | Customer Member
Alerting a member(s)
1. Navigate to the location of the file/item (A).
2. Select the alert icon (paper aeroplane) (B).
3. Select the member(s) to be alerted by checking the check box (C) alongside their name(s).
4. Select OK (D). 5 Amend the **Subject** (E).
6 Amend the **Message** (F).
7 Select **OK** (G).
______________________________________________________________________
**Note**
It is good practice to always change the subject to include a title explaining what the alert relates to. This will ensure the recipient is directed to the correct file/item if there are several files/items in a folder. You may also wish to add text to further explain the contents of the alert.
**IMPORTANT**
Alert titles and any added text must not include customer or sensitive information, also you must **not** change the hyperlink.
8 Select **OK** (H).
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f2e7521f53c427e224e5a8b41763d94d765147ab | People Intelligence in London Boroughs: A report for the Association of London Government
Report Titles from IES:
A catalogue of over 100 titles is available from IES, or on the IES Website, www.employment-studies.co.uk People Intelligence in London Boroughs: A report for the Association of London Government
Dilys Robinson The Institute for Employment Studies
The Institute for Employment Studies is an independent, apolitical, international centre of research and consultancy in human resource issues. It works closely with employers in the manufacturing, service and public sectors, government departments, agencies, and professional and employee bodies. For over 35 years the Institute has been a focus of knowledge and practical experience in employment and training policy, the operation of labour markets and human resource planning and development. IES is a not-for-profit organisation which has over 60 multidisciplinary staff and international associates. IES expertise is available to all organisations through research, consultancy, publications and the Internet.
IES aims to help bring about sustainable improvements in employment policy and human resource management. IES achieves this by increasing the understanding and improving the practice of key decision makers in policy bodies and employing organisations.
## Contents
1. Introduction 1 1.1 Background 1 1.2 This research 1
2. Research Findings 3 2.1 Introduction 3 2.2 Information requests 3 2.2.1 Internal requests 3 2.2.2 External requests 4 2.3 A key HR role? 5 2.4 Routine reporting 5 2.4.1 Nature of reports 5 2.4.2 How are reports received? 6 2.5 Data quality 6 2.6 Recruitment and retention hotspots 7 2.7 Data sharing and benchmarking 8 2.8 Evidence-based decisions 9 2.9 General issues raised by participants 10
3. Conclusions 12 3.1 Summing up 12 3.2 Recommendations 13
4. Introduction
1.1 Background
Local government is a labour-intensive sector, offering a wide variety of services to the public. The activities undertaken within local government require a multiplicity of skills and qualifications; a further complication is that customers are many and varied, with some being particularly vulnerable and in need of support. Around 60 to 70 per cent of a ‘typical’ borough’s annual expenditure goes towards staff, which is reason in itself to have good information about the workforce. The emphasis on efficiency and cost savings contained in the Gershon Review makes it even more essential for boroughs to have an in-depth understanding of the make-up and costs of their staff, while the Local Government Pay and Workforce Strategy 2005 highlights the need for good quality data to inform strategic and workforce planning.
1.2 This research
The Association of Local Government (ALG) asked the Institute for Employment Studies (IES) to carry out a small piece of research to investigate the ways in which London boroughs are currently using data about their workforce. The main driver for requesting this research was the response of London boroughs when requested by ALG to provide robust data for the recruitment and retention survey; ALG has noted that the provision of workforce data, in response to such staffing surveys, varies considerably by borough in terms of data quality and timeliness.
IES conducted the research by:
- interviewing, via the telephone, the HR Directors of four London boroughs, using a semi-structured interview guide
- facilitating a workshop of those responsible for providing and interpreting workforce data in seven London boroughs.
Attempts were made to secure interviews with one or more Chief Executives, but unfortunately there were no volunteers able to meet the request for an interview within the time-frame available. The research is set within the overall context of the requirements of the Local Government Pay and Workforce Strategy 2005, and is part of a wider study being undertaken by ALG. It is also linked to ALG’s work on recruitment and retention, and to the HR improvement programme. 2. Research Findings
2.1 Introduction
This chapter covers the broad areas discussed in the interviews and workshop, namely:
- internal and external requests for information about the workforce
- the positioning and status, within HR and the wider organisation, of workforce data guardianship and workforce information provision
- people intelligence reporting to management at different levels
- workforce data quality
- recruitment and retention ‘hotspots’
- workforce data to inform major decisions
- other relevant issues raised by participants.
2.2 Information requests
2.2.1 Internal requests
These come from a variety of sources, with the most important being managers at various levels. Typically, managers require information about their own staff, with sickness absence and pay being mentioned most often. The extent to which managers actively demand information, and take an interest in comparative data and trends, appears to vary by borough. In one borough, managers were described as ‘wanting to know more and more’, while in another, they ‘had to be guided’ to go beyond the standard reports, as they did not know what was available to them. Workshop participants believed that the level of the manager was far less important than his or her enthusiasm for and understanding of workforce information and its implications. There was general agreement, however, that ‘word gets around’ when a new system is implemented and new reports are available, and that this leads to an increase in requests for information. In addition to managers, the following groups of people were described as requesters of information, although each was only mentioned once:
- senior HR practitioners, who request information so they can support and/or challenge managers
- unions, where the interest is usually about specific issues, such as diversity
- the press/PR function, to gain material with which promote the borough positively to the external world, particularly the local population
- members, who in one borough were increasingly demanding information on which to base or justify decisions.
When asked specifically about the Chief Executive, the general consensus was that he or she would usually approach the HR Director for workforce information, perhaps following up any detailed queries with the relevant service head(s). Some, however, are a little more ‘hands-on’ and might even know who to approach direct in the HR team. Again, this seems to be a very individual preference; one Chief Executive was described as ‘information-thirsty’, while another had delegated workforce management entirely to senior managers.
### 2.2.2 External requests
Views on this area were variable. These were described as patchy and relatively few in number by some participants, while others indicated they received a relatively large number of requests. All interviewees and participants mentioned returns and surveys, requested by various bodies - ALG, Employers’ Organisation for Local Government (EO), Office for National Statistics (ONS) and sometimes other government departments. While acknowledging the value of the majority of these requests, many participants mentioned, and endorsed, the current discussions aimed at streamlining and standardising requests from public bodies by developing a core dataset.
Aside from this, there was some mention of the local press; here, relationships were very variable and appeared to be partly dependent on the quality of, and effort made by, the borough’s press/PR function. One borough’s HR Director was occasionally contacted by the HR publication ‘Personnel Today’, while others recalled rare occasions of requests from professional organisations and journals. The latter, however, were felt to be more likely to approach service heads, as the press tended to be more interested in the delivery of services than employment issues. 2.3 A key HR role?
There was general and emphatic agreement that workforce data guardianship and workforce information provision was part of HR’s core function, and was increasingly important. All boroughs participating in the research had between one and four individuals (though not necessarily full time) dedicated to such activity, and at least two participating boroughs had dedicated HR information teams. The status of these information specialists is generally high, and they are respected for their analytical skills. One HR Director described his specialists as ‘respected, responsive, customer-friendly and liked by line managers’. Another commented that data expertise was ‘greatly valued’; this HR Director was making an effort to grow such expertise internally, as it was a relatively rare commodity that he would otherwise have to buy in.
Despite the claims of HR system salespeople, HR information specialists are seen as a necessity; using reporting tools, and interpreting comparative and trend data, are not skills that can be easily acquired via occasional use.
HR Directors believe that analytical skills represent a required competency, although they felt this view was not shared by all HR practitioners. Workshop participants also felt that there was still an attitude that ‘this isn’t HR work’, and was an add-on rather than a core requirement.
2.4 Routine reporting
2.4.1 Nature of reports
All participating boroughs except one had a standard reporting cycle; the exception had recently acquired a new HR system, and was in the process of assembling a suite of standard reports. The frequency, content and format varies by borough. Some are entirely paper-based, while others also have an intranet system, sometimes with email alerts for particular managers. Typically, boroughs seem to have an annual profile that is widely distributed, and quarterly or monthly reports that are designed for managers and focus on operational issues such as turnover, sickness absence, and agency usage and costs. Summary information on these aspects are also provided for senior management and sometimes for members.
Boroughs all appear to be attempting to interpret the reports they issue, with particular attention being given to providing an explanation of comparative information and trends, and performance against targets, for senior managers and members. Most boroughs provide a straightforward written commentary, although one described a system of key indicators with interpretation focusing on exceptions.
When asked about the drivers for choosing the subject-matter for reports, all participating boroughs felt that they were cost-driven and also influenced heavily by Best Value Performance Indictors (BVPIs), which is why turnover and absence had assumed such prominence (although turnover is no longer an indicator). There is very little, if any, attempt to link reporting with strategic objectives; some labour market analysis is happening, although limited; and reporting that might highlight longer-term problems, such as retirement projections, are not seen as a priority.
2.4.2 How are reports received?
The general consensus was that the quality of debate about people intelligence at senior management and member level was variable — good, even approaching challenging in some places, less engaged and/or tending towards the naïve in others. Similar experiences were reported by boroughs experimenting with, or using, manager self-service for reporting; one borough said that their managers were unwilling to participate, while another had found a pilot scheme to be very popular. Participants with a private sector background felt that the quality of debate had been better and more sharply focused in their previous companies, but also that the workforce issues under consideration had been more straightforward, less multi-faceted and easier to tackle.
Once data quality has reached a satisfactory level (see below), there seem to be two key aspects influencing whether or not people intelligence reports are taken seriously within any particular borough.
- Of primary importance is the attitude of managers; champions are needed at the top of the organisation, plus a critical mass of interested managers at different levels.
- Secondly, the HR Director needs to have the necessary status (preferably, to be on the corporate management team) to push the importance of workforce issues and get them onto the agenda at senior manager and member level.
2.5 Data quality
Only one participating borough felt ‘Very confident’ in the quality of its data, but all the others reported that this aspect was ‘improving’ and that they were ‘much more confident than in the past’; however, there are ‘still improvements to be made’. Only a minority of participating boroughs were fully confident in the robustness of their measures to improve data accuracy. Much of the improvement that has been made is associated with getting a new system, which is an opportunity to take stock and do a proper data audit and cleanse. The prominence given to sickness absence in the BVPIs has led to huge improvements in the recording and timely reporting of this aspect, although it has also possibly distracted boroughs from taking a more strategic look at reporting.
It is encouraging to note that all participating boroughs said they had received support from the top of the organisation to improve data quality, often associated with getting a go-ahead for expenditure on a new HR system. However, the attitude of managers lower down in organisations was variable; some were very helpful, others compliant but reactive, and some, unfortunately, reluctant to take any responsibility for, or action about, workforce data. On a more positive note, employees were reported as being generally helpful and compliant when asked to check and amend their own data, during annual cleansing exercises. The Freedom of Information Act has also helped, as it has driven some boroughs to take data quality more seriously.
2.6 Recruitment and retention hotspots
All participating boroughs reported recruitment and retention difficulties with the following three groups:
- social workers
- planners
- environmental health officers.
In addition, the following groups were mentioned by some, but not all:
- legal, accountancy, audit and architectural professionals
- teachers, especially maths and science teachers for secondary schools
- trading standards officers
- highways engineers
- good quality senior staff in all disciplines.
In general, problems are flagged up by service heads who are experiencing difficulties in filling vacancies, but it is encouraging to note that anecdotal evidence is no longer accepted without some data to back it up. One borough stated, ‘We listen to people shouting but also use reports on turnover, average retention and vacancies’. Typically, evidence such as the number of re-advertisements, the number of applicants, the quality of the field and the ability to shortlist is sought before any remedial action is allowed. One borough had also noted general concerns about the age profile of applicants. Agency usage and expenditure is also monitored in some boroughs, although some said that this information is often difficult to uncover and understand.
Although participating boroughs have a good idea where their ‘hotspots’ are, there appears to be little corporate will to map recruitment and retention difficulties across the whole borough: ‘There isn’t really a corporate push to get information on these problem areas’. Any initiatives tend to be reactive, and confined to pockets of difficulty.
When planning action on recruitment and retention for ‘problem’ groups, the general consensus was that the HR role was to challenge assumptions, provide evidence and monitor any initiatives taken (such as recruitment and retention allowances and recruitment drives). One borough quoted an example of the Social Services Director wanting to increase salaries; however, the HR Director challenged the anecdotal evidence, and discovered that of 25 reported vacancies, attempts had been made to recruit to only 12 posts, and only a handful of these had needed to go to a second recruitment round.
One borough admitted that it was struggling with trying to get a fix on the best indicators to monitor recruitment and retention, and felt that this was an area where agreement between boroughs, via ALG, would be helpful. Suggested indicators were vacancy rates (although this was tricky in areas where there were no fixed staffing establishments, so the concept of a ‘vacancy’ did not really exist), agency expenditure and usage (not always easy to find out), employee opinion, time taken to recruit, and need to re-advertise.
### 2.7 Data sharing and benchmarking
In general, there seems to be little information shared between boroughs, aside from the staffing surveys and returns organised by ALG. Several participating boroughs mentioned that boroughs felt themselves to be in competition for staff: ‘London boroughs are not very good at sharing information — it’s more competitive than the private sector!’. Some informal information sharing was believed to be undertaken at service head level, but relatively little by HR. One borough reported a degree of information exchange with a neighbouring borough; another had withdrawn from a sharing arrangement because its own data was felt to be much better than that of its neighbours, so little benefit was being gained.
ALG’s comparative information was valued by participants, and participants were also very appreciative of ALG’s attempts to establish common definitions. Turnover, absence and salary data were now felt to be reliably comparable across London boroughs. There was considerable support for further action in establishing common definitions and sharing information, especially on recruitment & retention and training & development, and participants wanted this activity to be organised by ALG. One borough suggested that, rather than surveys on specific issues, a standard census-type return could be made to the ALG on a regular basis, so that the data could be manipulated in different ways.
2.8 Evidence-based decisions
The general view of participants was that evidence was always sought before major decisions involving the workforce were implemented, although not always early enough; there was still a tendency to rationalise post hoc, i.e. to look for evidence to support a decision that had already been made in principle. This still represents a big leap forward, however, compared to even a few years ago, when evidence would follow a long way behind, if at all: ‘It isn’t awful now’ and ‘The final decision would be made with data’. Some examples are given below.
- In one borough, a proposal to change the recruitment and retention package for social workers went to members accompanied by a considerable amount of supporting evidence; encouragingly, members asked for yet more evidence before coming to a decision.
- Another borough gave an example of a cost-benefit analysis to find out whether offering a free travel card from the first day of employment, rather than after a year of service, would be beneficial. The results indicated that, for a relatively small outlay, this would be a big recruitment incentive.
- One borough described how evidence about the relatively low number of minority ethnic support staff in schools had led to a targeted recruitment drive.
- A similar analysis in another borough had led to a targeted management development programme for women and minority ethnic staff.
- Another analysis of disabled staff had led to an investigation to find out why disabled applicants had been unsuccessful at recruitment.
- There was general consensus that recruitment and retention benefits such as golden hellos and flexible benefits would not be implemented without supporting data, whereas anecdotal evidence might have sufficed in the past.
Despite the above encouraging examples, a systematic approach to providing a series of reports to evaluate the success of any decisions still appears to be the exception rather than the rule. 2.9 General issues raised by participants
At the end of the interviews and the workshop, participants were invited to make additional comments or further suggestions. The following list summarises the points made.
- ALG should continue in its efforts to stress the importance of good quality people intelligence.
- HR’s profile will greatly increase via the production of good and relevant people metrics.
- Managers take people metrics, and people management, more seriously if the HR Director is on the corporate management team; this is really important for ensuring a quality debate at senior level about people issues, and for the credibility of the function generally.
- Although the degree of interest and involvement displayed by members varies by borough, raising member awareness about people issues appears to bear fruit; member questions lead officers to take issue much more seriously.
- Operational managers often see HR as hindering rather than helping, and as being too focused on compliance. Good quality metrics and a readiness to challenge and debate will lead to more respect.
- HR practitioners have some way to go in terms of the acquisition and use of analytical skills, but these are increasingly seen as a core HR competency.
- Investment in good technology, and the people to implement and maintain systems, is very important, but participants felt that some boroughs lagged a long way behind on this issue and are therefore really struggling.
- Although some movement towards manager self-service via the intranet is achievable, for example for standard reports and absence alerts, it is not possible to hand over entirely to managers because any non-standard reporting requires expertise in enquiry tools and interpretation of information.
- The HR Directors participating in this research were on the whole more optimistic than workshop members, who are responsible for providing and interpreting workforce data. This may be because HR Directors can see a clear progression path ahead, but it may also be possible that practitioners, who deal with managers on a day-to-day basis, are more realistic.
- At the workshop, there was general agreement that it would be helpful to have a set of key indicators for people management, perhaps agreed between boroughs and ALG, which were recognised as the core things about people that all managers were required to understand and monitor. Although participants felt that the current direction with regard to people intelligence was positive, and that things were improving, there was a concern about the lack of a longer-term perspective. The political context in which local government operates is believed, by some participants, to impact negatively on overall strategic direction.
3. Conclusions
3.1 Summing up
There is no doubt that, based on the views of participants in this research, London boroughs are improving in their understanding and use of people intelligence. New systems are being implemented, and several boroughs are using the intranet to engage managers more closely. BVPI requirements have led to improvements in data collection, recording and analysis, particularly on sickness absence, and the Freedom of Information Act has also influenced boroughs to take data quality more seriously. Major decisions affecting the workforce are now very unlikely to be made on the basis of anecdotal evidence alone, and the HR function is becoming more analytical and more willing and able to challenge managers.
Having listed the positives, it is also clear, and acknowledged by participants, that there is still some way to go. This is by no means unique to local government; HR practitioners in many sectors are wrestling with the best ways of using people intelligence to manage their staff and plan for the future. In IES’ experience, workforce analysis is one of the areas where the public sector often does better than the private sector, although there is also considerable evidence that some companies (notably the Royal Bank of Scotland and Nationwide) have woken up to the competitive advantages that good quality, in-depth understanding of the workforce can bring.
It is apparent that improvements in reporting and information use are achievable within local government; the recent prominence given to sickness absence has led London boroughs to think seriously about the information required to manage attendance properly. This suggests that a sustained push on workforce issues from the top of the organisation (members and the corporate management team) is likely to lead not only to better information but to a debate about current and future people management. As decision-makers within organisations learn more about the data available to them, and the potential of new systems to provide better reports, the demand for good quality people intelligence should improve. In the meantime, this research suggests that some boroughs are still struggling with poor systems, many HR practitioners have difficulties with analysis and numeracy and are unwilling to see these as core HR competencies, and not all boroughs are able to influence the agenda by having the HR Director as a member of the corporate management team. The focus on BVPIs and cost savings tends to distract from strategic objectives, while the political dimension can lead to longer-term issues (such as future retirement bulges and projected age imbalances) being given very low priority. Operational reporting has improved, but there seems to be little attempt to translate organisational strategic objectives into workforce analysis and monitoring action.
While expertise in data extraction, analysis, information presentation and interpretation has improved, there is a tendency for reports to be generated from readily available data, rather than being based on an analysis of the information requirements necessary to support effective people management and to monitor progress towards organisational objectives. Boroughs are, for example, not very confident about their workforce planning expertise. On the basis of this small piece of research, it appears unlikely that any borough would be able to confidently respond positively to all of the following list of questions in ‘The Local Government Pay and Workforce Strategy 2005: Transforming your authority — creating real and lasting change’.
- Are you regularly reviewing and analysing your workforce needs to prepare for future circumstances?
- Do your key plans and strategies identify and address the workforce implications?
- Have you identified key areas where you have future potential skills shortages?
- Are you taking action with local partners and other authorities, to address these skill shortages?
- Are you taking action to address areas of high staff turnover?
- Have you got skills pathways in place to ‘grow your own’ future workforce?
- Are you making use of e-recruitment?
### 3.2 Recommendations
- Boroughs should continue to work with ALG, via the recently-established Workforce Data Group, to establish definitions, provide common workforce data and share information. The publication and wide circulation of comparative indicators should help to increase perception and understanding of people intelligence throughout local government in London. In particular, now that ‘vital workforce data’ (numbers, grades, age, status, ethnicity and gender) has been tackled for accuracy, boroughs should concentrate on occupational data (i.e. the classification of jobs and people into sensible, usable groups for reporting and planning). Decision-makers should be moving from simply asking whether they have too many or too few employees today, to whether they have the right balance of skills and employment mix to meet future strategic aims.
- Developing capability in workforce reporting and planning, however, should be primarily active and internally-driven, not just a response to external enquiries and assessment. As a first step, all boroughs should audit their understanding of the workforce using ALG’s newly-developed ‘innocence to excellence’ diagnostic tool. This tool looks at different aspects of people, process, data, reports and decisions, all of which can be scored on a five point scale: ‘innocence’, ‘awareness’, ‘understanding’, ‘competence’ and ‘excellence’. This research would suggest that most boroughs are currently around the ‘awareness/understanding’ level for most aspects, with some signs of ‘innocence’ and some of ‘competence’, but very little evidence yet of ‘excellence’.
- Boroughs should examine their existing capability with regard to workforce information and planning – both within HR and throughout the wider organisation. HR systems need continuing investment to be useful as a core management tool; HR practitioners require training and development in understanding, producing, analysing and interpreting workforce data; and managers at all levels need the skills to understand and act upon the reports they receive.
- Having achieved organisational buy-in to the need to improve data collection and recording of operational issues such as absence and turnover, boroughs should now plan how they are going to start thinking about more strategic, longer term people intelligence, and what sort of evidence they are going to produce to evaluate their workforce decisions. This requires a thorough understanding of organisational objectives and priorities and their implications for the workforce, and competence in workforce planning and modelling. Boroughs that have not already done so should consider, and clearly state, what information they need to support people management and achieve key objectives, both currently and in the future.
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5e0c20b6ca994d8a46ec2f6437f5948c4b942435 | London Councils
Recruitment and Retention Strategy
Workforce Intelligence
Report Three
January 2007 INTRODUCTION
This is the third London Councils recruitment and retention (R&R) survey report. Replies, of varying completeness and quality, were received from twenty-eight out of the thirty-three boroughs, this equates to an 85% response rate.
One objective of the London Councils’ R & R strategy is to help bring about a sustained improvement in the coverage and quality of the boroughs' workforce information.
This survey has two primary purposes:
- to quantify on an objective basis the exact nature of the R&R difficulties faced in the occupations perceived as having the major shortages in London local government
- to review and comment on the quality of the information available
The survey collects vacancy, turnover and demographic data on the following eight occupational areas: social worker - community care; social worker - children & families; social worker - residential; building control; traffic and/or transportation engineering; environmental health; trading standards; and planning. The methodology used for this year’s survey is the same as for the previous two surveys.
The available evidence indicates that in the majority of boroughs - at least at the corporate level - there does not appear to be a huge demand for this type of information. Whether this is through lack of interest, or because boroughs struggle to provide it, requires further investigation.
Given this caveat, all figures reported need to be used with care.
SURVEY RESULTS: RECRUITMENT AND RETENTION
Employment: By Occupation
Total employment in the eight occupational groups covered by the survey is 11,964 head count, or 11,226.3 full-time equivalents (FTEs). They account for 7% of the head count general services workforce, and 9% of FTE workforce. This higher percentage of the FTE workforce reflects the fact that employees in the occupations covered by the survey work predominately on a full-time basis, whereas approximately 50% of the general services workforce is employed on a part-time basis.
The two largest occupational groups - by some way - covered by the survey are ‘social workers - children & families’ (approximately 35% of the FTE total) and ‘social workers - community care’ (27%). Including ‘social workers - residential’ (9%) brings the social workers figure up to 71% of the total. The other five occupations account for
______________________________________________________________________
1 Please refer to Reports One and Two for additional information. 2 A subsidiary purpose is to report on boroughs' R&R initiatives; refer Appendix IV. 3 Occupational therapists have been excluded as they are primarily a NHS occupation. 4 The Employers Organisation for local government survey 2005 reported 169,797 headcount and 123,086 FTEs in the London boroughs; figures include employees on local grades. approximately 29% of the total. The largest group, outside the social worker group, is planners (9% of the total) and the smallest is trading standards (3%).
Figure 1 shows the number of FTEs employed in each of the occupations.
**Figure 1: FTE Employment - Selected Occupations - London Boroughs - April 2006**
![Bar chart showing FTE employment by occupation in London Boroughs for April 2006.]
**Vacancies: By Occupation**
Table 1 shows the vacancy rates in 2005/06 for the eight occupations covered by the survey. The occupation with the highest number of vacancies is ‘social workers - children & families’ with 1,380.7 FTE vacancies; transport engineering has the highest vacancy rate at 29.7%.
**Table 1: Vacancy Data - Selected Occupations - London Boroughs - 2005/06**
| Occupation | Funded Posts (FTEs) | Employees in Post | Employees in Post (FTEs) | Vacant Posts (FTEs) | Vacancy Rate | Percent of Vacant Posts | |---------------------|---------------------|-------------------|--------------------------|---------------------|--------------|------------------------| | SW - CC | 3930.5 | 3269 | 3080.2 | 850.3 | 21.6% | 25% | | SW - C & F | 5290.1 | 4138 | 3909.4 | 1380.7 | 26.1% | 40% | | SW - Residential | 1221.2 | 1077 | 984.1 | 237.1 | 19.4% | 7% | | Building Control | 560.8 | 463 | 455.8 | 105.0 | 18.7% | 3% | | Transport Engineering| 702.2 | 609 | 494.0 | 208.2 | 29.7% | 6% | | Environmental Health| 1097.1 | 940 | 901.9 | 195.3 | 17.8% | 6% | | Trading Standards | 446.2 | 386 | 361.8 | 84.4 | 18.9% | 3% | | Planning | 1394.1 | 1082 | 1039.1 | 355.0 | 25.5% | 10% |
Note: (i) Figures have been ‘grossed up’ to full response. (ii) ASWs included in SW - CC (iii) Levels I & II combined. (iv) The ‘percent of vacant posts’ column shows the relative position of each group, so, for example, 40% of all the vacancies identified are in ‘SW - C & F’. For the eight occupations combined there are 3,415.9 FTE vacancies. Although this figure is higher than the 3,237.6 reported in 2003/04, the increase was more than ‘offset’ by an increase in the number of ‘funded posts’ reported. Hence the decrease in the overall vacancy rate - falling from 25.4% to 23.3% - over 2003/04 to 2005/06.
A summary of the figures for the three surveys is as follows:
Table 2: Vacancy Data - Total - London Boroughs - 2003/04 to 2005/06
| Year | Funded Posts | Employees in Post | Vacant Posts | Vacancy Rate | Average per Borough | |--------|--------------|-------------------|--------------|--------------|---------------------| | 2005/06 | 14642.2 | 11226.3 | 3415.9 | 23.3% | 104 | | 2004/05 | 14322.0 | 10693.9 | 3628.0 | 25.3% | 110 | | 2003/04 | 12768.4 | 9530.8 | 3237.6 | 25.4% | 100 |
Note: (i) All Figures are FTEs. (ii) ‘Average per borough’ is the average number of vacant posts per borough; this figure is not weighted and is simply calculated by dividing the total number of vacancies by thirty-three.
For the 2004/05 and 2005/06 surveys the total number of ‘funded posts’ reported was broadly similar - 14,322.0 and 14,642.2 respectively. The total number of vacant posts reported decreased by just over two hundred - 3,628.0 to 3,415.9 - and the vacancy rate fell by two percentage points, 25.3% to 23.3%.
The figures also illustrate that R&R difficulties are confined to a relatively small number of posts; an average of approximately 100 to 110 per borough over the three surveys. There are obviously significant variations between individual boroughs and the averages obscure a wide range.
This year’s survey again highlights that the scale of the problem for ‘social workers’ is of a different order of magnitude to the other occupations. Of the 3,415.9 FTE vacancies reported, 2,468.1 are in the three social worker occupations, accounting for 72% of vacancies; with ‘social workers - children & families’ alone accounting for 40%. In total the other five occupations reported 947.9 FTE vacancies, or 28% of the total number of vacancies reported.
A summary of the figures for the three surveys is as follows:
Table 3: Vacancy Data - Social Workers/Others - 2003/04 to 2005/06
| Year | SW | Others | Total | Percent | |--------|------|--------|-------|---------| | | SW | Others | Total | SW | Others | Total | | 2005/06 | 2468.1 | 947.9 | 3415.9 | 72% | 28% | 100% | | 2004/05 | 2640.8 | 987.3 | 3628.0 | 73% | 27% | 100% | | 2003/04 | 2469.6 | 767.9 | 3237.6 | 76% | 24% | 100% |
Table 4 - overleaf - shows that the ‘ordinal rank order’ of vacancy rates are very similar for all three surveys, with differences limited to no more than one place.
Transport engineering, social workers - children & families and planners continue to occupy the ‘top’ three places with vacancy rates of 29.7%, 26.1% and 25.5% respectively. This year only four out of the eight occupations have vacancy rates exceeding twenty percent, compared to six in the previous two surveys. Table 4: Vacancy Rates - Ordinal Rank Order - 2003/04 to 2005/06
| Ordinal Rank Order | Occupation | 2003/04 Vacancy Rate | Occupation | 2004/05 Vacancy Rate | Occupation | 2005/06 Vacancy Rate | |--------------------|-----------------------------|----------------------|-----------------------------|----------------------|-----------------------------|----------------------| | 8 | Environmental Health | 14.0% | Environmental Health | 17.8% | Environmental Health | 17.8% | | 7 | Building Control | 17.5% | Building Control | 19.3% | Building Control | 18.7% | | 6 | Trading Standards | 21.7% | Trading Standards | 20.2% | Trading Standards | 18.9% | | 5 | SW - Community Care | 24.1% | SW - Residential | 21.6% | SW – Residential | 19.4% | | 4 | SW - Residential | 25.8% | SW - Community Care | 24.2% | SW - Community Care | 21.6% | | 3 | Planning | 26.1% | Planning | 28.0% | Planning | 25.5% | | 2 | Transport Engineering | 27.5% | SW - Children & Families | 28.3% | SW - Children & Families | 26.1% | | 1 | SW - Children & Families | 29.4% | Transport Engineering | 30.5% | Transport Engineering | 29.7% |
Given the overall quality of the information commenting with absolute certainty on the direction of change over the three surveys is problematic. The available data does however indicate that for:
- the social worker occupations - by far the largest group - the situation appears to have improved over the course of the three surveys; possibly indicating the range of R&R measures implemented by boroughs have had some impact
- trading standards - the smallest group - the situation appears to have improved over the course of the three surveys
- environmental health, building control and transport engineering while vacancy rates are higher than those reported in 2003/04 there has been no change or a slight fall between 2004/05 and 2005/06
- planners while vacancy rates increased between 2003/04 and 2004/05, they are now marginally lower than the figures reported in 2003/04
The figures shown in Table 5 and Figure 2 highlight these changes in more detail. For example, vacancy rates for social workers - community care (25% of all vacancies) and social workers - children families (40% of all vacancies) have fallen by 2.5 percentage points and 3.3 percentage points respectively over the period 2003/04 to 2005/06.
Definitive comment on the changes requires the ‘triangulation’ of these results with research from other sources.
Table 5: Vacancy Rates and Changes - Selected Occupations - 2003/04 to 2005/06
| Occupation | Vacancy Rates | Percentage Point Change | Index | |-----------------------------|---------------|-------------------------|-------| | | 2003/04 | 2004/05 | 2005/06 | 2004 - 05 | 2005 - 06 | 2004 - 06 | 2003/04 =100 | | SW - Community Care | 24.1% | 24.2% | 21.6% | 0.1% | -2.6% | -2.5% | 89.6 | | SW - Children & Families | 29.4% | 28.3% | 26.1% | -1.1% | -2.2% | -3.3% | 88.8 | | SW - Residential | 25.8% | 21.6% | 19.4% | -4.2% | -2.2% | -6.4% | 75.2 | | Building Control | 17.5% | 19.3% | 18.7% | 1.8% | -0.6% | 1.2% | 106.9 | | Transport Engineering | 27.5% | 30.5% | 29.7% | 3.0% | -0.8% | 2.1% | 108.0 | | Environmental Health | 14.0% | 17.8% | 17.8% | 3.9% | 0.0% | 3.8% | 127.1 | | Trading Standards | 21.7% | 20.2% | 18.9% | -1.5% | -1.3% | -2.8% | 87.1 | | Planning | 26.1% | 28.0% | 25.5% | 2.0% | -2.6% | -0.6% | 97.7 |
Note: Figures have been ‘grossed up’ to full response with estimates made for missing information.
(ii) All figures are rounded.
Figure 2: Changes - Selected Occupations - London Boroughs - 2003/04 to 2005/06 Vacancies: Including Agency Cover
In reality some vacant posts are ‘covered’ by agency staff. In order to estimate the ‘net vacancy rate’ the survey collects information on the number of agency staff engaged by boroughs in each of the eight occupations.
Table 6 summaries the position.
Table 6: Vacancy Rates - Including Agency Staff Cover
| Occupation/ Vacancy Rates | 2005/06 | 2004/05 | |---------------------------|---------|---------| | | Vacancy Rates (1) | Vacancy Rates (2) | Vacant Posts Covered by Agency Staff | Vacancy Rates (1) | Vacancy Rates (2) | Vacant Posts Covered by Agency Staff | |---------------------------|------------------|------------------|-------------------------------------|------------------|------------------|-------------------------------------| | Trading Standards | 18.9% | N/A | N/A | 17.1% | N/A | N/A | | SW - Community Care | 21.6% | 14.1% | 35% | 25.1% | 14.0% | 44% | | Building Control | 18.7% | 11.4% | 39% | 17.2% | 7.6% | 56% | | Planning | 25.5% | 14.7% | 42% | 27.8% | 18.7% | 33% | | Environmental Health | 17.8% | 10.1% | 43% | 18.2% | 14.7% | 19% | | SW - Residential | 19.4% | 9.1% | 53% | 21.7% | 13.6% | 37% | | Transport Engineering | 29.7% | 11.8% | 60% | 28.0% | 13.8% | 51% | | SW - C & F | 26.1% | 10.4% | 60% | 28.5% | 12.2% | 57% |
Notes: (i) Vacancy Rate (1) excludes agency staff covering vacant posts; Vacancy Rate (2) includes vacancy cover. (ii) Trading standards not shown as very little data is available.
The figures indicate that approximately 35% to 60% of vacant posts are covered by agency staff, depending on the occupation. Unsurprisingly approximately 80% of all agency staff work in the three social worker occupations; with ‘social workers - children & families’ accounting for over half of the overall total.
Overall it is estimated that approximately 50% of vacancies (for the eight occupations listed in the survey) are covered by agency workers; the same as in 2004/05. In 2003/04 it was estimated that approximately 60% of vacant posts were covered by agency staff.
Only around 50% of boroughs provided any information on agency staff; so caution should therefore be exercised when using these figures. The number of agency staff employed adds complexity to assessing the exact size and nature of the boroughs’ workforce, as demographic information is not available to the same extent as the directly employed workforce. This point was highlight to in the first report:
“The lack of information on agency workers should not be underestimated as a management issue for the boroughs... There is nothing intrinsically wrong with employing agency workers; the lack of data, their (over) extensive use in certain services and whether they are used in an optimum way may however be a concern. Agency workers clearly provide a degree of flexibility to meet short term or variable service needs. But there are issues of ensuring effective procurement arrangements and identifying where an over reliance on agency workers may have a negative impact on service delivery/consistency.”
5 ALG Recruitment and Retention Strategy, Report Number One, October 2004 Best estimates available indicate that approximately one in ten people working in the occupations covered by the survey is an agency worker. For social workers - children & families the figure increases to just under one in five.
SURVEY RESULTS: EMPLOYEE TURNOVER
Source of Starters and Destination of Leavers
The survey also attempted to collect information on the ‘origin’ of starters and the ‘destination’ of leavers. The primary objective in collecting this information was to help inform the development of R&R policy and to provide source data for calculating turnover by occupation. Boroughs found it very difficult to produce this information.
With only around 50% of boroughs providing any response - the majority of which were far from comprehensive - data for this category was scarce.
The figures shown in Table 7 - overleaf - are therefore for illustration only
The figures show that, even where boroughs attempted to provide information, the source of 48% of ‘starters’ was not known; 11% of starters were recruited from agency staff who were previously working for the borough.
Again using the limited data available, the figures show that ‘voluntary leavers’ account for 90% of all leavers - 594 out of a total of 658 leavers reported; a higher percentage than the London local government ‘all employee’ figure of 60%6.
Restricting the analysis to voluntary leavers shows that the destination of 57% of leavers was not known; 28% moved within local government; 7% moved outside the sector to another employer; and 1% went to work for an agency.
The figures also show a negative balance of six percentage points when comparing leavers ‘to other London boroughs’ compared ‘to other local authorities’; 11% and 17% respectively. This possibly illustrates a net movement of staff to outside the capital; more robust data is however necessary before offering a definitive comment.
There was a balance of +112 (17%) of starters over leavers; 770 compared to 658.
Again it must be stressed that these figures are shown for illustration only to highlight the type of analysis which could be undertaken if the figures were more robust.
Employee Turnover
A number of boroughs supplied figures on leavers without being able to provide information on their destination; hence more data was available for the basic employee turnover calculation. It was still not possible however to calculate employee turnover rates by individual occupation with a reasonable measure of certainty.
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6 London Councils, Employee Turnover In The London Boroughs, Benchmarking Report Number Seven, December 2006. Best estimates indicate that the employee turnover rate is in the 10% to 15% range for all eight occupations; the figures suggest that social workers - children & families and planners have the highest rates.
The median rate for all eight occupations is approximately 11%. Voluntary turnover - according to the calculations possible from the data - accounts for 85% of the total.
The results of the London Councils’ Employee Turnover Survey 2005/06 show that the ‘all employees’ turnover rate is 14.4% with a resignation rate of 8.7%. As indicate above resignations account for 60% of the ‘all employee’ turnover rate.
Some caution is however required when interpreting these figures, as it is difficult to assess how the use of agency staff is influencing employee turnover rates. If boroughs are increasingly turning to agency staff for the ‘difficult to recruit’ occupations, this could have the effect of reducing the turnover rate reported, as they are not directly employed and would not therefore be included in any figures reported.
### Table 7: Source of Starters/Destination Leavers - Selected Occupations
| Employees Starting: Sources | Total | Percentage | |---------------------------------------------------|-------|------------| | Previously An Agency Worker In The Borough | 86 | 11% | | All Other Sources | 314 | 41% | | Not Known | 370 | 48% | | **Total: Starters** | 770 | 100% |
| Employees Voluntarily Leaving: Reasons | Total | Percentage (1) | Percentage (2) | |---------------------------------------------------|-------|----------------|----------------| | Internal Move/Promotion | 14 | 2% | 2% | | Same Occupation – To Other London Borough | 67 | 10% | 11% | | Same Occupation – To Other Local Authority | 103 | 16% | 17% | | Same Occupation – To Other Employer (Non LG\*) | 42 | 6% | 7% | | Same Occupation - To Agency Work | 8 | 1% | 1% | | Leaving Occupation | 22 | 3% | 4% | | Other/Not Known | 338 | 51% | 57% | | **Total: Leavers – Voluntary** | 594 | 90% | 100% |
| Employees Leaving: Other Reasons | Total | Percentage (1) | Percentage (2) | |---------------------------------------------------|-------|----------------|----------------| | Retirements | 23 | 3% | 36% | | Dismissals | 11 | 2% | 17% | | Redundancies | 3 | 0% | 5% | | TUPE Transfers | 2 | 0% | 3% | | Other/Not Known | 25 | 4% | 39% | | **Total: Leavers - Other Reasons** | 64 | 10% | 100% | | **Total All Leavers** | 658 | 100% | | | **Balance: Starters/Leavers** | 112 | 17% | |
Note: **Percentage (1)** shows the percentage of ‘all leavers’, for example, 3% of all leavers left the occupation. **Percentage (2)** shows percentage of the specified ‘Reason’, for example, 36% of ‘Other Reasons’ were retirements; although retirements only account for 3% of all leavers. SURVEY RESULTS: WORKFORCE DEMOGRAPHIC PROFILE
Occupational Group Profile
For five of the eight occupations the survey collects demographic workforce information; covering age, gender and ethnicity. As a general observation the quality and coverage of this data has improved over the course of the three surveys. The overall 'not known' figure has fallen from approximately thirty percent for all three categories in the first survey to around 5% to 10% for the 2005/06 survey.
Encouragingly the figures for the 2005/06 survey - excluding 'not known' - are broadly in line with the figures for the 2003/04 and 2004/05 surveys.
The figures highlight that there are clear differences across the occupational groups with, for example, women disproportionately represented in the social worker occupations. The 2005/06 figures show that:
- Approximately 2% of the workforce is aged twenty-four or under; this is not unexpected given the nature of the jobs.
- For planning and social workers - children & families nearly 45% of the workforce is in the 25 to 39 age band; this contrasts with transport engineering where only 27% of the workforce is in this age band.
- For ASWs and transport engineering over 30% of the workforce is in the 50 to 64 age band; approximately two in five transport engineers are fifty or older.
- Gender segregation is most marked for social workers - children & families (78% female) and transport engineering (79% male).
- Environmental health officers (57% male), planners (59% male) and ASWs (62% female) have more balanced workforces.
- Approximately 33% of social workers - children & families are Black; 16% of transport engineers are Asian; and 81% of planners are White.
Table 8 and Figures 3.1, 3.2 and 3.3 show the full results.
When interpreting the figures it is important to note that they relate only to the directly employed workforce and the age, gender and ethnicity profiles of the indirect workforce, for example agency staff, is not known. This point is important as there is anecdotal evidence that suggests that for particular occupations, agency workers are becoming an increasingly prominent part of the ‘workforce’.
In an attempt to fill this information gap the knowledge exchange initiative has been developed; refer to ‘improvement actions’ for additional information.
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7 Social worker - community care (ASW only), social worker - children & families, transport engineering, environmental health and planning Table 8: Age, Gender & Ethnicity - Selected Occupations - London Boroughs - 2005/06
| Occupation/Category | Age | Gender | Ethnicity | |---------------------|-----|--------|-----------| | | 16 to 24 | 25 to 39 | 40 to 49 | 50 to 64 | 65 and older | Male | Female | White | Mixed | Asian | Black | Chinese | Other | | SW - CC, ASWs only | 0% | 28% | 39% | 32% | 1% | 38% | 62% | 65% | 2% | 7% | 24% | 1% | 2% | | SW - C & F | 1% | 44% | 33% | 22% | 0% | 22% | 78% | 52% | 3% | 8% | 33% | 0% | 3% | | Transport Engineering | 3% | 27% | 30% | 39% | 1% | 79% | 21% | 68% | 1% | 16% | 11% | 2% | 3% | | Environmental Health | 2% | 38% | 34% | 25% | 0% | 57% | 43% | 73% | 3% | 6% | 16% | 1% | 1% | | Planning | 4% | 44% | 28% | 24% | 0% | 59% | 41% | 81% | 2% | 6% | 9% | 2% | 1% |
Notes: (i) Figures based on actual data provided - the ‘not known’ percentages are as follows: 6% for age; 5% for gender; and 10% for ethnicity. Including these figures would decrease the other percentages accordingly. Refer to Appendix I for further information. (ii) Percentages may not always sum to 100 because of rounding. Local Government Workforce Profile
The results of the Employers Organisation General Services Pay Survey 2005 show that London local government (non-teaching) workforce is 72% female and 28% male.(^8)
This survey(^9) also shows that the workforce in London comprises: White (69.4%); Mixed (1.7%); Asian (8.5%); Black (18.4%); and Chinese/Other (2.0%). According to the Census, April 2001 (ONS) the population of London comprises: White (71.15%); Mixed (3.15%); Asian (12.09%); Black (10.91%); Chinese (1.12%); and Other (1.58%).
The Labour Force Survey(^10) shows that: 40% of London’s local government workforce is in the 16 to 39 age group compared to 58% in other sectors; 30% is in the 44 to 49 age group (24% other sectors); and 31% are fifty or over (19% other sectors).
These figures highlight that the local government workforce is older than the workforce generally in the Capital. Refer to Table 9 and Figure 1.4 for full details.
Table 9: Age Distribution - London Local Government and Other Sectors
| Age Range/ Sector | London Local Government | Other Sectors | Difference – | |-------------------|-------------------------|---------------|--------------| | 16 - 19 | 2% | 3% | -1% | | 20 - 24 | 4% | 11% | -6% | | 25 - 29 | 10% | 17% | -6% | | 30 - 34 | 10% | 14% | -4% | | 35 - 39 | 13% | 13% | 0% | | 40 - 44 | 15% | 13% | 2% | | 45 - 49 | 15% | 11% | 4% | | 50 - 54 | 14% | 8% | 6% | | 55 - 59 | 10% | 7% | 4% | | 60 - 64 | 5% | 3% | 2% | | 65+ | 2% | 1% | 0% | | Total | 100% | 100% | |
Note: (i) The Other Sectors percentages exclude local government. (ii) All figures are rounded to nearest whole number. (iii) Percentage point difference shown.
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(^8) EO General Services Pay Survey 2005, excluding employees above SCP 49 and local grades.
(^9) Figures based on the 88% of the workforce whose ethnicity is known.
(^10) An LGAR analysis of the LFS, July-Sept 2006, Public Files. Figure 3.1: Age Profile - Selected Occupations - London Boroughs - April 2006
Figure 3.2: Gender Profile - Selected Occupations - London Boroughs - April 2006 Figure 3.3: Ethnicity Profile - Selected Occupations - London Boroughs - April 2006
Figure 3.4: Age Distribution - London Local Government/Other Sectors SURVEY RESULTS: QUALITY OF INFORMATION
As indicated the survey does not appear to be a priority for the majority of boroughs. The speed of response to this year’s survey was a lot slower than for the first two surveys. Questions about the quality of the information remain; this is not only a problem in London local government but also nationally and in other sectors.
The quality of the demographic data covering age, gender and ethnicity is continuing to improve in the majority of boroughs. But there are still difficulties:
- in classifying jobs into meaningful occupational groups
- providing consistent year-on-year data - the information becomes more meaningful if robust longitudinal trends can be produced
- reporting vacancies in boroughs that do not have an ‘establishment’ list of posts
- reporting the number of posts covered by agency staff
- providing robust occupational specific turnover
- providing monitoring information covering the source of the people recruited and destination of leavers
The aim of the survey is to collect information in a standardised format. The diversity of the management information systems used, allied to different internal occupational and other coding systems, means that trying to ensure the information provided is essentially the same from borough to borough and year-on year is problematic.
Additionally, a number of boroughs do not appear to make use of an occupational coding system when compiling the figures, and group the data simply by using job title. This makes compiling consistent year-on-year information even more problematic.
The challenges boroughs have in completing the R&R survey need to be placed in the context of the wider challenges they face generally in reporting and using people-related information. They are simply a sub set of these wider challenges, and improvements in the provision of information for this survey will only come about through wider organisational development interventions.
The stated aim of the survey is to provide information to help boroughs and London Councils better identify and understand the nature and extent of the R&R difficulties faced by the boroughs, in order to develop successful solutions.
So how much progress has been made?
Boroughs appear to have made most progress in what can perhaps be best described as the demographic workforce data: age, ethnicity and gender. The likely reason for this is that the majority of boroughs report this information internally on a regular basis and the requirement to report gender and ethnicity information for the BVPIs.
Reporting information by occupation appears to be far less frequent and hence the information held by the boroughs is less comprehensive. This possibly reflects the view that there is little corporate will to ‘map out’ the R&R difficulties across the organisation and report them at the corporate level. Vacancy and employee turnover data do not appear to be rigorously tracked by, or reported to, the corporate centre. Additionally, a systematic approach to providing a series of reports to evaluate the success of any R&R intervention still appears to be the exception rather than the rule.
Some boroughs find producing and using workforce information more of a challenge than others. A number of activities to help boroughs to better use workforce information - by developing skills in reporting and interpreting information - have been initiated.
The information produced needs to be used by decision makers; there is not overwhelming evidence that this actually happens in practice to any great extent. If there is little interest in this type of information among decision makers, and it is not used for internal management purposes, the accuracy of the survey, or in fact its completion, is less important to the borough.
The question is how to generate increased interest across all the boroughs and among senior management for decision making purposes.
**IMPROVEMENT ACTIONS**
The development and monitoring of R&R initiatives should ideally be informed by comprehensive workforce intelligence. The provision of workforce intelligence is however a role which HR appears willing to deprioritise as it is not - as a generalisation – one it necessarily fills with comfort. The provision of corporate level workforce intelligence is a struggle for some boroughs. There also appears to be limited interest in the information from senior management, at least when acting in their corporate capacity. Whether this is because their requests for information have not been met because HR cannot provide the data or because it is thought to be unimportant is not known and needs to be further researched.
**IMPROVEMENT ACTIONS: BY BOROUGHS**
There are however signs that a number of boroughs are showing far greater interest in this area - at least at an operational level - and are investing in their capacity and capability. For example, one borough has now created a workforce information team and has three HR planning analysts working as part of this team.
A number of other boroughs are also showing increasing interest.
**IMPROVEMENT ACTIONS: LONDON COUNCILS AND BOROUGHS**
London Councils has undertaken a range of activities to try and improve the quality and use of workforce information in the boroughs. These can be broadly characterised as ‘workforce intelligence research’ and ‘improving knowledge and skills’.
**WORKFORCE INTELLIGENCE RESEARCH**
Information from London Councils R&R research has been used in a number of studies, for example, the recent R&R report on planners(^\\text{11}) and the London Centre of Excellence’s work on the use of temporary, agency and interim staff(^\\text{12}).
(^{11}) Recruitment And Retention Of Planners In London: A report for London Councils(^\\text{11}), by Tim Edmundson & Elizabeth Rawson, November 2006. Additionally, London Councils - in conjunction with a number of boroughs - has undertaken the following research activities.
**Recruitment & Retention Barometer**
As the R&R survey is proving problematic to complete, as a supplementary measure, a secondary source has been developed - the R&R Barometer - which provides a simpler analysis of the problems faced by the boroughs. It is however based on a format most boroughs can complete. The R&R Barometer is published annually.
**Workforce Intelligence Diagnostic Tool**
London Councils commissioned a small scale research project(^{13}) to identify what differentiates the ‘good’ from the ‘less good’ in the provision of workforce information. The research was undertaken by the Institute for Employment Studies (IES), and has been used to inform improvement actions at borough and pan-London levels.
Additionally, based on this research, a diagnostic tool(^{14}) was developed that aims to provide boroughs with insights into their capacity and capability for producing workforce intelligence, and help them develop any necessary improvement plans.
**Workforce Intelligence Template**
Although spending on the workforce typically accounts for around 60% to 70% of expenditure in a borough, the London Councils research identified that - as a generalisation - little information on the workforce is reported to the senior management. There is certainly very little which relates to how the workforce helps the organisation achieve its strategic objectives. This situation gives considerable scope for boroughs to better use management information on people-related issues, to highlight how good people management practices can in-turn lead to improved organisational performance.
It is therefore proposed to develop a senior management workforce intelligence template. The rationale for the template is based on the simple premise:
“What workforce intelligence do chief executives (and the senior management team) need to help them manage the organisation effectively?”
The proposal also aligns with one of the Audit Commission’s strategic objectives: improving the quality and use of information for decision-making purposes(^{15}).
London Councils is working with a borough and the IES on this project.
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(^{12}) Transforming the Procurement of Temporary, Agency and Interim Staff: Pan London Collaboration Opportunities, Centre of Excellence, London, 2006
(^{13}) People Intelligence in London Boroughs, IES, August 2005
(^{14}) Local Government Workforce: The Hidden Resource, ALG, August 2005
(^{15}) National studies programme, Audit Commission, 2006/07 - Making Better Use of Information to Drive Improvement in Public Services. Local Government People Management Performance
A consortium of eight London boroughs - supported by London Councils - engaged Valuentis, a professional services firm, to measure and evaluate their people management practice. A methodology developed by Valuentis was used.
The evaluation is based on eight human capital management drivers; one of which is workforce intelligence. Valuentis contend that any organisational performance related to human capital/HCM requires competence in data/intelligence and measurement. Without it, it is difficult to provide any meaningful assessment of value/contribution/progress. Any assessment of organisational performance is meaningless without some form of measurement whether in data format or more sophisticated metrics.
Certain themes emerged across the consortium boroughs (not necessarily common to all boroughs). Two findings which are of interest in the context of this report are:
- Inconsistent or limited use of workforce intelligence, with limited linkage to decision making. A lack of management insight on people inevitably leads to an environment of poorer decision-making and/or poorer organisational performance as a result.
- Limited evidence of effective workforce planning - given the high reliance on a wide range of skill sets within councils and the potentially costly use of agency staff, this is likely to affect costs and levels of productivity/output.
London Councils will be integrating these findings in its work with its workforce intelligence group and the IES.
IMPROVING KNOWLEDGE AND SKILLS
London Councils - in conjunction with a number of boroughs - have undertaken the following work aimed at developing knowledge and skills.
Workforce Intelligence Group.
A workforce intelligence group has been established. The objective of the group is to develop boroughs’ ability to systematically collate, analyse, manipulate and report workforce intelligence as an aid to effective decision making.
The group meets on a quarterly basis and is supported by an online web resource.
Workforce Intelligence Workshops
A number of workshops have been organised; for example: (1) Getting Started in Workforce Planning and (2) Analytics and Building Your Workforce Planning and Analytics Capability. Offering staff in the boroughs the opportunity to improve their knowledge and skills will continue.
IMPROVEMENT ACTION: KNOWLEDGE EXCHANGE
The London Centre of Excellence initiative aims to provide the boroughs with information on agency staff and consultants working for London local government, and to allow comparisons between providers. It will enable: • benchmarking of cost and use of these workers between boroughs • trend analysis of cost and use of these workers to be undertaken over time
A particular benefit of this project will be the development and use of better occupational coding systems and definitions, including in key skills shortage areas.
IMPROVEMENT ACTION: HR IMPROVEMENT PROJECT
This government-funded programme allowed boroughs to access ten different development modules, including one looking at workforce analysis and planning. As well as giving the individual participants a chance to undertake action learning on this topic over a number of months, a tangible product was produced. This is available on a micro site within the Improvement and Employment section of the London Councils website for all boroughs to share the benefit of the group’s learning.16
The research project - People Intelligence in London Boroughs – referred to above was also part of this programme.
IMPROVEMENT ACTIONS: INPUT INTO NATIONAL INITIATIVES
London Councils is working with the national employers on the following two projects.
The Future Local Government Workforce
This Local Government Analysis and Research Unit (LGAR) project aims to consolidate what is already known about the future local government workforce, and to consider what additionally might be done to develop a better picture(s), vision(s) or scenarios of the local government workforce in 2015.
Occupational Coding System/National Minimum Dataset
In an attempt to overcome the fragmented approach to profiling the workforce LGAR is developing the Local Government Minimum Dataset (NMD)17. London Councils is working closely with LGAR in an attempt to ensure the London boroughs have an input in to its development and thus influence the output.
One major aspect of this dataset is the development of an occupational classification system for local government which is essential to allow accurate benchmarking of occupational data. Through London Councils, LGAR has been working with eight London boroughs to develop this classification system, which is based on the Office for National Statistics Standard Occupational Classification 2000, and the plan is that it be will ready by the end of this financial year.
Additionally, specific NMDs are also being developed for Social Care (Skills for Care) and the Schools Workforce Census (Department for Education and Skills).
16 http://www.londoncouncils.gov.uk/doc.asp?docId=17937 17 http://www.lgar.local.gov.uk/lgv/core/page.do?pageId=12810 Appendix I
Base Workforce Information 2005/06: Results Including Not Known
### Age (Including Not Known)
| Occupation /Age | 16 to 24 | 25 to 39 | 40 to 49 | 50 to 64 | 65 and older | Not Known | Total | |-----------------|----------|----------|----------|----------|--------------|-----------|-------| | SW CC ASW | 0% | 28% | 38% | 31% | 1% | 3% | 100% | | SW - Children & Families | 1% | 41% | 31% | 20% | 0% | 7% | 100% | | Transport Engineering | 3% | 24% | 28% | 35% | 1% | 9% | 100% | | Environment Health | 2% | 35% | 32% | 24% | 0% | 8% | 100% | | Planning | 4% | 42% | 27% | 23% | 0% | 4% | 100% | | **Total** | 2% | 38% | 31% | 23% | 0% | 6% | 100% |
### Gender (Including Not Known)
| Occupation /Gender | Male | Female | Not Known | Total | |--------------------|------|--------|-----------|-------| | SW CC ASW | 37% | 60% | 3% | 100% | | SW - Children & Families | 20% | 73% | 7% | 100% | | Transport Engineering | 76% | 21% | 4% | 100% | | Environment Health | 55% | 41% | 4% | 100% | | Planning | 57% | 40% | 3% | 100% | | **Total** | 35% | 59% | 5% | 100% |
### Ethnicity (Including Not Known)
| Occupation /Ethnicity | White | Mixed | Asian | Black | Chinese | Other | Not Known | Total | |-----------------------|-------|-------|-------|-------|---------|-------|-----------|-------| | SW CC ASW | 62% | 2% | 6% | 23% | 1% | 1% | 5% | 100% | | SW - Children & Families | 45% | 3% | 7% | 29% | 0% | 3% | 13% | 100% | | Transport Engineer | 63% | 1% | 15% | 10% | 1% | 3% | 7% | 100% | | Environment Health | 68% | 2% | 6% | 15% | 1% | 1% | 8% | 100% | | Planning | 75% | 1% | 6% | 8% | 2% | 1% | 8% | 100% | | **Total** | 55% | 2% | 7% | 22% | 1% | 2% | 10% | 100% |
## Appendix II
### Survey Results
#### Vacancy Data - Selected Occupations - London Boroughs - 2005/06 (April 2006)
| Occupation | Funded Posts (FTEs) | Employees in Post | Employees in Post (FTEs) | Vacant Posts (FTEs) | Vacancy Rate | Percent of Posts Vacant | |--------------------------|---------------------|-------------------|--------------------------|---------------------|--------------|------------------------| | SW - Community Care | 3930.5 | 3269 | 3080.2 | 850.3 | 21.6% | 24.9% | | SW - C & F | 5290.1 | 4138 | 3909.4 | 1380.7 | 26.1% | 40.4% | | SW - Residential | 1221.2 | 1077 | 984.1 | 237.1 | 19.4% | 6.9% | | Building Control | 560.8 | 463 | 455.8 | 105.0 | 18.7% | 3.1% | | Transport Engineering | 702.2 | 609 | 494.0 | 208.2 | 29.7% | 6.1% | | Environment Health | 1097.1 | 940 | 901.9 | 195.3 | 17.8% | 5.7% | | Trading Standards | 446.2 | 386 | 361.8 | 84.4 | 18.9% | 2.5% | | Planning | 1394.1 | 1082 | 1039.1 | 355.0 | 25.5% | 10.4% | | **Total** | **14642.2** | **11964** | **11226.3** | **3415.9** | **23.3%** | |
- Average number of vacancies per borough: 104
- Percentage vacancies in social worker occupations: 72%
- Percentage vacancies in other occupations: 28%
#### Vacancy Data - Selected Occupations - London Boroughs - 2004/05 (April 2005)
| Occupation | Funded Posts (FTEs) | Employees in Post | Employees in Post (FTEs) | Vacant Posts (FTEs) | Vacancy Rate | Percent of Posts Vacant | |--------------------------|---------------------|-------------------|--------------------------|---------------------|--------------|------------------------| | SW - Community Care | 3825.0 | 3029 | 2898.4 | 926.7 | 24.2% | 25.5% | | SW - C & F | 5219.8 | 3979 | 3742.2 | 1477.6 | 28.3% | 40.7% | | SW - Residential | 1096.2 | 902 | 859.7 | 236.5 | 21.6% | 6.5% | | Building Control | 611.4 | 507 | 493.5 | 117.9 | 19.3% | 3.3% | | Transport Engineering | 756.4 | 538 | 525.8 | 230.7 | 30.5% | 6.4% | | Environment Health | 1140.6 | 974 | 937.2 | 203.4 | 17.8% | 5.6% | | Trading Standards | 431.9 | 368 | 344.6 | 87.3 | 20.2% | 2.4% | | Planning | 1240.7 | 939 | 892.7 | 348.0 | 28.0% | 9.6% | | **Total** | **14322.0** | **11235.0** | **10693.9** | **3628.0** | **25.3%** | |
- Average number of vacancies per borough: 110
- Percentage vacancies in social worker occupations: 73%
- Percentage vacancies in other occupations: 27% | Occupation | Funded Posts (FTEs) | Employees in Post | Employees in Post (FTEs) | Vacant Posts (FTEs) | Vacancy Rate | Percent of Posts Vacant | |---------------------|---------------------|-------------------|--------------------------|---------------------|--------------|------------------------| | SW - Community Care | 3294.7 | 2691 | 2499.2 | 795.6 | 24.1% | 24.6% | | SW - C & F | 4450.3 | 3340 | 3141.9 | 1308.4 | 29.4% | 40.4% | | SW - Residential | 1416.6 | 1105 | 1050.9 | 365.7 | 25.8% | 11.3% | | Building Control | 525.1 | 436 | 433.2 | 91.9 | 17.5% | 2.8% | | Transport Engineering | 673.6 | 512 | 488.1 | 185.5 | 27.5% | 5.7% | | Environment Health | 1005.9 | 896 | 865.3 | 140.6 | 14.0% | 4.3% | | Trading Standards | 366.0 | 323 | 286.4 | 79.6 | 21.7% | 2.5% | | Planning | 1036.2 | 818 | 765.9 | 270.4 | 26.1% | 8.4% | | **Totals** | **12768.4** | **10121** | **9530.8** | **3237.6** | **25.4%** | |
- Average number of vacancies per borough: 100
- Percentage vacancies in social worker occupations: 76%
- Percentage vacancies in other occupations: 24%
### Appendix III: Age, Gender & Ethnicity - Selected Occupations - London Boroughs – 2003/04 to 2005/06
#### SW CC, ASW only
| Age | Gender | Ethnicity | |-----------|--------|-----------| | 16 to 24 | Male | White | | 25 to 39 | Female | Mixed | | 40 to 49 | | Asian | | 50 to 64 | | Black | | 65 and older | | Chinese | | 2003/04 | 1% | 65% | | 2004/05 | 0% | 60% | | 2005/06 | 0% | 65% |
#### SW - Children & Families
| Age | Gender | Ethnicity | |-----------|--------|-----------| | 16 to 24 | Male | White | | 25 to 39 | Female | Mixed | | 40 to 49 | | Asian | | 50 to 64 | | Black | | 65 and older | | Chinese | | 2003/04 | 1% | 51% | | 2004/05 | 1% | 53% | | 2005/06 | 1% | 52% |
#### Transport Engineering
| Age | Gender | Ethnicity | |-----------|--------|-----------| | 16 to 24 | Male | White | | 25 to 39 | Female | Mixed | | 40 to 49 | | Asian | | 50 to 64 | | Black | | 65 and older | | Chinese | | 2003/04 | 4% | 81% | | 2004/05 | 2% | 82% | | 2005/06 | 3% | 79% |
#### Environmental Health
| Age | Gender | Ethnicity | |-----------|--------|-----------| | 16 to 24 | Male | White | | 25 to 39 | Female | Mixed | | 40 to 49 | | Asian | | 50 to 64 | | Black | | 65 and older | | Chinese | | 2003/04 | 2% | 62% | | 2004/05 | 1% | 61% | | 2005/06 | 2% | 57% |
#### Planning
| Age | Gender | Ethnicity | |-----------|--------|-----------| | 16 to 24 | Male | White | | 25 to 39 | Female | Mixed | | 40 to 49 | | Asian | | 50 to 64 | | Black | | 65 and older | | Chinese | | 2003/04 | 4% | 60% | | 2004/05 | 4% | 57% | | 2005/06 | 4% | 59% |
#### Overall - Five Occupations Listed
| Age | Gender | Ethnicity | |-----------|--------|-----------| | 16 to 24 | Male | White | | 25 to 39 | Female | Mixed | | 40 to 49 | | Asian | | 50 to 64 | | Black | | 65 and older | | Chinese | | 2003/04 | 2.0% | 62.2% | | 2004/05 | 1.4% | 61.6% | | 2005/06 | 1.8% | 61.2% |
Note: (1) Figures based on actual data provided; the ‘not known’ percentages are approximately 30% for all categories in 2003/04, 10% to 19% in 2004/05 and 5% to 10% in 2005/06. Some of this improvement is because it was possible to make estimates based on replies for earlier surveys. Appendix IV
Recruitment and Retention Initiatives
| Borough | Recruitment and Retention Initiatives | |---------|---------------------------------------| | OLB26 | All social work positions re-graded; senior/principal practitioner posts introduced to deputise for managers and deal with complex case loads; ‘Step Into’ website established to show vacancies on a permanent basis. | | OLB27 | Two increments are awarded for ASW status and participation in the rota. | | OLB28 | Once social workers become ‘approved’ they can go up to PO2 and obtain entitlement to two additional increments (SCP 41-42). This is based on information indicating that SCP 41 is a common SCP for ASWs. This is still keeping a balance between recruiting and retaining staff in this area, which is an improvement on previous practices. However, assessing the effectiveness of these initiatives will continue through 2006. | | ILB30 | Review of pay and benefits in July 2005. Previous R&R benefits (golden handcuffs and travel allowances) converted to a market supplement of six SCP’s (added to top of grade, but also applied to each individual at social worker, senior practitioner and team manager levels). Positive impact - reduced vacancy and turnover levels, and reduced reliance on agency staff. Wider market position currently under review. | | OLB33 | Two additional increments for ASWs; increased the forensic lead payment for forensic social workers. | | ILB01 | ASWs have a career grade scheme to enable them to progress quickly through the social work grade. In addition, ASWs receive key worker housing and car user allowance. A ‘10% of salary’ payment is made to new employees to the borough as a ‘golden hello’ and a further 10% of salary is paid after each completed twelve months of service. | | OLB04 | Once a social worker is ‘approved’ they are escalated to SCP 44 (the highest social worker SCP). | | ILB09 | Extended pay range from SCP 41 to SCP 43 and introduced accelerated pay scales for newly qualified staff. Free Zones 1 & 2 travel card for hard to recruit posts. This has resulted in a low turnover in ASWs. | | ILB10 | Borough is currently reviewing allowances and payments to emergency duty social workers. |
______________________________________________________________________
18 As reported in the borough’s response to the 2005/06 survey; certain proposed actions may now be implemented, given the time which has elapsed since receiving the reply and reporting the results. | Borough | Recruitment and Retention Initiatives | |---------|--------------------------------------| | OLB15 | Since 2001 the borough has initiated and implemented a number of actions/schemes to tackle the recruitment and retention difficulties with social workers. Including the re-grading of all social work practitioner staff, including team managers, whereby social workers benefit by at least two additional SCPs. Also performance related pay (PRP) was introduced to all social work staff (£1,500 per annum) and in addition to this social workers who work in the children's teams and/or are approved status are entitled to a market supplement of £3,000 every two years. The borough has also undertaken overseas recruitment campaigns, attended major job fairs and university/college open days, held its own open days and improved its promotional material and literature. The borough has also highlighted the employee benefits of working for the organisation, including the relocation package and access to key worker accommodation. | | OLB16 | Introduced and maintained pay supplements for new and existing staff a few years ago and in the main this has stabilised the position. Borough in line with national position, however, this remains a difficult area. | | ILB18 | Turnover and vacancy levels are low and there is a well organised ASW warranting panel and portfolio system which is a model of good practice. The ‘social work career pathways scheme’ is both a recruitment and retention tool as it awards incremental advancement linked to the gaining of extra qualifications, as well as allowing staff to remain in practice without having to progress by taking on managerial responsibilities. There are a wide range of specialised posts in the ASW service and a degree of rotation within the service between them. | | ILB20 | Offer a higher salary than average in London boroughs, training and a caseload of no more than twelve. | | OLB21 | The borough continues with its ‘grow your own’ strategies and four members of staff have enrolled on the ASW programme in 2006. It is a requirement for all staff in mental health to qualify as ASW. |
### Social Worker - Children & Families
| Borough | Recruitment and Retention Initiatives | |---------|---------------------------------------| | OLB26 | Dedicated micro sites for recruitment and regular informal recruitment evenings - called pizza evenings - have almost eliminated recruitment shortfalls. | | OLB27 | The borough has a £3,000 bursary available to all final year social work students who are successfully appointed to SW posts in borough’s child care teams, subject to successful completion of their qualification. Borough has also introduced two new trainee social work positions for external applicants who wish to undertake the SW qualification with a view to them being employed by the borough for a period of two years (post qualification). | | OLB28 | A retention allowance of £1,200 has been applied to qualified social worker posts in children’s services since October 2003. This is paid as a lump sum on each anniversary of a social worker's employment. Those in post on or before 1 October 2002 receive it on the 1 October each year. It is paid pro-rata to part-time staff. Payment to those who may have prolonged sickness absence is considered carefully according to individual circumstances. Those who may be given notice of dismissal due to misconduct or incapability will not receive a payment. Link grades (PO4-5) have also been developed for all team managers (including children’s services), to attract staff to hard to recruit to posts. Monitoring will continue through 2006 to assess the effectiveness of these R&R initiatives, and feedback indicates that they have created a balance between recruiting and retaining staff in this area, which is an improvement on previous practices. | | ILB30 | Review of pay and benefits in July 2005. Previous R&R benefits (golden handcuffs and travel allowances) converted to a market supplement of six SCP’s (added to top of grade, but also applied to each individual at social worker, senior practitioner and team manager levels). Positive impact - reduced vacancy and turnover levels, and reduced reliance on agency staff. Wider market position currently under review. | | OLB33 | Salary increase this year; deleted increments from the ‘level three’ scale to ensure quicker progression, £3,500 bursary offered to newly qualified social workers, annual retention payment of £1,500 and increased pay in child protection by £3,000 per year. | | ILB01 | Career grade scheme as an incentive for quick progression through the social worker grade. In addition key worker housing and car user allowances are offered. A ‘10% of salary’ payment is made to new employees to the borough as a ‘golden hello’ and a further 10% of salary is paid after each completed twelve months of service. | | Borough | Recruitment and Retention Initiatives | |---------|--------------------------------------| | OLB04 | Graduate trainees: sponsoring graduates to undertake a MA with the guarantee of a job on successful completion of the course. A total of fifteen newly qualified staff have been offered permanent jobs. The initiative is planned again for later this year. Several of the initiatives planned for this financial year have been put on hold until later when the JAR is completed. In addition to their salary social workers receive a £1,000 payment. When first introduced this proved to be beneficial in attracting social workers, however, the majority of other London boroughs are now offering similar or better salary packages and borough is finding it increasingly difficult. | | OLB05 | - The design and evaluation of a new remuneration and benefits package to attract and retain new and existing staff.
- The design of a recruitment strategy and initiatives to attract and retain new staff.
- The development of a strategy to support reducing the number of agency staff in the service.
- The design of a training and development strategy to develop the skills and capacity of the workforce.
- Design of a strategy to develop leadership capacity within the service. | | OLB08 | Overseas recruitment, USA and India (six social workers recruited in July 2006), in tandem with a trainee social worker scheme and rolling recruitment in the UK. Paper on USA recruitment provided. Refer Appendix V for the full case study. | | ILB09 | Introduced accelerated pay scales for newly qualified staff and retention bonus of up to £2,500 for qualified staff. Free Zones 1 & 2 travel card for hard to recruit posts. Resulted in significantly reduced turnover. | | ILB10 | Dedicated recruitment campaigns, specific targeted advertising and micro websites, recruitment fairs for all social workers. Benefits have been improved as well as progression criteria so that social workers progress through the range faster. Continue to pay a market supplement to all child protection social workers. Implementation of a neutral vendor system to control spend on agency staff | | Borough | Recruitment and Retention Initiatives | |---------|--------------------------------------| | OLB15 | Since 2001 the borough has initiated and implemented a number of actions/schemes to tackle the recruitment and retention difficulties with social workers. Including the re-grading of all social work practitioner staff, including team managers, whereby social workers benefit by at least two additional SCPs. Also performance related pay (PRP) was introduced to all social work staff (£1,500 per annum) and in addition to this social workers who work in the children's teams and/or are approved status are entitled to a market supplement of £3,000 every two years. The borough has also undertaken overseas recruitment campaigns, attended major job fairs and university/college open days, held its own open days and made improvements to promotional material and literature. The borough has also highlighted the employee benefits of working for the organisation, including the relocation package and access to key worker accommodation. | | OLB16 | Introduced and maintained pay supplements for new and existing staff a few years ago and in the main this has stabilised the position. Also leading edge work in relation to setting up a ‘children’s trust’ has been a positive influence. | | ILB18 | The ‘children's directorate’ engages in a number of activities including trainee schemes and bursaries through links with local colleges to promote the service to prospective applicants. Regular entry and exit surveys are conducted: borough found that its reputation for training and development was cited as the main reason for joining by 23% of new starters. Social workers enjoy protected caseloads and team administrative support and there has been heavy investment in IT. A number of overseas social workers have been recruited and a support group has been formed to help overseas recruits become acquainted with social work practice in the UK. | | OLB19 | Posts re-graded upwards under single status. Enhanced annual leave scheme introduced for qualified social workers. Payment of GSCC fee. Measures are fairly recent so too early to assess effectiveness. | | ILB20 | Offer a higher salary than average in London boroughs, training and a caseload of no more than twelve. | | OLB21 | The borough has contracted Tribal Resourcing to work specifically on its social work recruitment campaigns, which included sponsoring ‘Community Care Live - Children & Families’, developing a micro site for candidates to register and a high profile media recruitment campaign. | | Borough | Recruitment and Retention Initiatives | |---------|--------------------------------------| | OLB26 | No specific initiatives as the numbers of staff have remained stable. | | OLB28 | Car leasing payment paid to key engineering posts (equivalent to the market supplement previously paid). | | ILB30 | Current R&R initiatives for traffic engineers comprises a 7-10% recruitment and retention supplement, a Zone 1 & 2 travel card, payment of professional subscription fees and golden handcuffs for some positions. The introduction of the market supplement has worked with more senior staff as a retention tool. A review of the current R&R packages in this area will be taking place in the next few months. | | ILB01 | Service is to be restructured shortly to put in place a second tier structure. Strategic matters dealt with by the senior assistant director and other duties shared. | | OLB04 | Some posts receive ‘grade plus one increment’. A training scheme is being planned to attract young people and to enable borough to ‘grow its own. A transport planner receives a market supplement of £4,000 per annum. | | ILB09 | Free Zones 1 & 2 travel card for hard to recruit posts. | | ILB10 | Examining possibility of market supplement for highways engineers. | | OLB15 | The primary purpose of this scheme is to retain the services of experienced and qualified staff. |
- Eligibility for a market supplement payment under this scheme is limited to staff in the following posts: group leaders / service unit managers and principal officers.
- The ‘scheme’ will be offered to all staff in the above posts. Payments under this scheme do not count as pensionable pay and will be made in the form of six monthly payments, paid on 15 March and 15 September each year, based on the six months preceding 1 March and 1 September respectively.
- The payments under this scheme are inclusive of the payments previously paid to staff as supplements. From the date that this scheme is implemented, all previous supplements will cease.
- Payment will only be made to an eligible officer who is in employment and has not given notice between the relevant dates i.e. 1 September to 1 March.
- The levels of payment are justified by market rate data. The levels of payment will be reviewed six monthly, or at any time that a significant change in the market rate data becomes apparent. Payments may be increased, reduced or ended following such a review.
Three months’ notice will be given of any proposed reduction in the level of supplement. | Borough | Recruitment and Retention Initiatives | |---------|--------------------------------------| | OLB16 | Introduced and maintained pay supplements for new and existing staff a few years ago and in the main this has stabilised the position. The service has been restructured which went some way to assisting the borough in this problem area. | | ILB18 | Service has recently been reorganised (within the last year) with consequential upgrading for some roles. The borough, due to the nature of the work and its previous inability to recruit staff (the area has been nearly exclusively agency workers), has entered into a partnering arrangement with a major transport industry consultancy. As part of the partnership arrangement the consultancy will provide staff to cover a number of 'roles'. Additional information is available from the department. |
### Environmental Health
| Borough | Recruitment and Retention Initiatives | |---------|---------------------------------------| | OLB28 | Market supplement paid to environmental health officers. | | ILB30 | Current recruitment and retention initiatives for environmental health officers are a £2,000 ‘golden hello’ and a recruitment and retention supplement of 7%. The R&R packages have had some success; however a thorough analysis of the packages will be undertaken over the summer. | | ILB01 | Four people on traineeships, two on positive training action highway, linking of grades. | | ILB09 | Free Zones 1 & 2 travel card for hard to recruit posts. | | OLB04 | Grade plus one increment (the same is provided for trading standards). | | ILB03 | Market supplement of £4,500 still in place for environmental health officers who can competently and independently carry out the full range of food hygiene duties: including inspections of category A & B premises and the ability to utilise the full range of enforcement powers, on a daily basis, as a primary function of their substantive post. The supplement is only payable to field officers with a two year continuous and current experience in the full range of food safety functions. | | OLB15 | As per traffic and/or transportation engineer. |
### Planning
| Borough | Recruitment and Retention Initiatives | |---------|---------------------------------------| | OLB26 | Specific application packs have been introduced for planning posts; ‘conversion’ of agency staff to permanent employees has ensured a stable position. | | OLB27 | Borough has successfully recruited to four ‘career graded’ planning assistant posts. Employees started with borough in June/July 2006. | | OLB28 | Market supplement paid to planning officers. | | ILB30 | Current recruitment and retention initiatives within planning are: Zone 1 & 2 travel cards for all planners; a 7% recruitment and retention supplement at PO3 and above; and payment of professional subscription fees. The packages have had limited success at higher grades. | | ILB01 | Restructured to give staff higher grades at senior level. Also extended career grade bands. Recruitment - advertised a six-month secondment from amongst internal candidates in the borough. Training to be given. | | ILB03 | Career grade scheme for planning officers Level I extended to PO2. | | OLB05 | Market factor supplements. | | OLB08 | Key worker housing. Also graduate trainee scheme introduced summer 2005, recruited one graduate to planning - post entry training offered. | | ILB09 | Free Zones 1 & 2 travel card for hard to recruit posts. | | OLB15 | As per traffic and/or transportation engineer. | | OLB16 | Introduced and maintained pay supplements for new and existing staff a few years ago and in the main this has stabilised the position. In addition PATH initiative has been used to good effect in this area. | | ILB18 | This service has recently been reorganised. The borough is actively going in to the market place to fill roles at all levels within the department. As part of the package offered to prospective candidates is a performance payment of up to 10% of salary for those at team leader level (base pay range £37k to £43k); this has attracted more candidates than previous recruitment exercises. The department is currently (June 2006) considering if an additional benefits package to attract candidates should be used across the department. Additional information is available from the department. | | OLB19 | Grade and career structure reviewed with combination of increased grade and market pay; not yet implemented - aim to reduce dependency on agency staff and introduce a viable career grade scheme. | | ILB20 | Key worker property offered. |
### Other Recruitment and Retention Initiatives
| Borough | Recruitment and Retention Initiatives | |---------|---------------------------------------| | OLB27 | The borough has introduced a career grade scheme for assistant building control officers and building control officers and will be advertising for these posts in September 2006. | | OLB28 | Ad hoc recruitment campaigns still take place, within children and families and housing and community care, to bring in planned numbers of social work assistants. The aim of this is to plan for the future workforce needs, by recruiting staff and providing training opportunities. It is expected that social work assistants will go on to qualify as social workers. Work-life balance and flexible working schemes have been introduced across the borough. Borough has fully implemented a computerised employee records database. This enables the borough to more effectively track staff movements and other employee data such as age profiles and ethnicity. A recruitment module has been implemented which enhances borough’s monitoring of R&R initiatives. | | OLB29 | Introduction of on-line recruitment, changes to advertising methods, work with agencies to negotiate lower introduction fees for permanent staff, talent management including graduate trainee, grow-your-own and ‘No quits’ policy, pay reviews for hard to recruit staff, social care workshops for years 10-13, and fast-track appointment processes. | | OLB04 | On-line recruitment was introduced earlier this year and early figures indicate that although it has been very successful in attracting applications from candidates applying for middle to senior level manager vacancies, those applying for other vacancies still prefer to apply on a paper form. The borough recognises that it has a lot of work to do in order to encourage candidates for lower graded and non-office based jobs to use the on-line facility. A range of job fairs have been arranged in order to attract care assistants to work for the borough again, these have proved successful and a total of fifteen care assistants were appointed to jobs. | | OLB33 | Raised salaries for social workers - adults’ and managers in line with children’s services. Introduced retention payments of £1,500 per year. | | Borough | Recruitment and Retention Initiatives | |---------|--------------------------------------| | OLB05 | The borough is working in partnership with Capita Resourcing. One of the three projects already agreed is the First Contact Centre. The borough’s vision for First Contact is to significantly enhance the way that it interacts with customers. It wants to provide modern services that staff can be proud of and that customers can expect. The approach taken to recruit people into the First Contact Centre.
- Research led attraction strategy: ensure borough reached a diverse audience; target potential audience and ensure budget was used effectively.
- Micro Site: used to sell the opportunities; contact rich, reducing advertising copy/cost.
- On-line/paper applications: convenient to candidate's individual needs.
- Siftability: to reduce initial applicant pool to manageable numbers.
- Assessment centres: effectively rank and measure candidate ability. | | OLB08 | Graduate trainee and key worker housing schemes applicable to other employees apart from planning. These schemes have been successful but limited in scope, for example, four graduate trainees recruited in 2005 (HR, planning, asset management and civil engineering) and two more in 2006 (asset management and civil engineering). | | ILB10 | Regular salary benchmarking/advert trawls conducted. Looking to roll out neutral vendor system across the borough. Developing social worker masters degree training programmes for borough residents. | | OLB19 | Market incentives targeted at roles with proven R&R difficulties and clear market pay shortfalls; concentrated on services to the public including qualified social workers and planners. | Appendix V
Recruitment of Social Workers from the USA
The following is a brief case study on how a borough successfully recruited social workers from the USA as a part of a three-pronged strategy to tackle its recruitment and retention difficulties. It is reproduced with the kind permission of the borough.
The case for improvement
As of March 2004 there were vacancies in the children and families division for:
- 32 social workers
- 4 senior social workers
- 6 assistant team managers
- 1 deputy team manager
- 6 team managers
- 2 service managers
Recruitment campaigns over the previous year had proved to be very expensive, and at the time, the most recent campaign had resulted in one offer for a service manager and six social workers.
The borough had a rolling programme of advertising with costs for a single job advert between £3k to £4k and for a composite advert between £8 to £9k. They had also taken part in various job fairs - Community Care Live, Kingston University which did not attract a single applicant.
A number of boroughs began recruiting from abroad as clearly there is now a national shortage of social workers. The borough’s decision to recruit from abroad was part of a three-pronged strategy:
- Recruit from overseas
- Continue with trainee social workers
- Recruit from within the UK
Vacancies were being covered by agency workers which have both financial and ethical consequences. On average the extra cost per year to cover the vacant posts with agency staff was £19,000 per annum per social worker; and continuity of service for children and families is severely impaired when staff are temporary. Further, the differential in pay and sense of commitment to the customers and organisation can and has caused friction between temporary and permanent staff.
Proposals for improvement
In March 2004 the service manager children & families (policy and organisational development) and the strategic HR manager began looking at agencies which recruit from abroad. There are large numbers of agencies which provide this service. Together they created the following selection criteria:
- Proven track record in overseas recruitment within public sector
- Ability to provide different levels of staff
- Track record on recruiting an ethnic mix of staff
- Good references from other boroughs
- Value for money
- UK base
- Capacity to provide staff in ‘trickles’ as well as larger campaigns
- Any extra benefits offered by the agency
Six agencies were interviewed with TTM providing the best package. The borough concluded that the Australian market had been well tested and probably exhausted at present and decided to ‘look to’ the USA and Canada.
TTM recommended recruitment from the USA and three campaigns were undertaken: initially in Los Angeles (July 2004) and Boston (November 2004) aiming to recruit ten children & families social workers on each occasion. Following this the borough contracted with TTM for a third trip (New York) in June 2005 to recruit ten children & families and ten mental health social workers. Figures for each trip are as follows:
| City/Information | Offers | Starters | Cost | |------------------|--------|----------|-------| | | C&F | MH | Total | | | Los Angeles | 14 | 1 | 15 | £29,778 | | Boston | 14 | 0 | 14 | £64,519 | | New York | 16 | 10 | 27 | £94,440 | | Total | 44 | 11 | 56 | £188,697 |
Note: In New York an offer was also made to one ‘older person’s social worker’.
In total thirty-nine staff were recruited at a total cost of just under £190,000. There was an additional cost of £2,000 re-location package per person which TTM administered for the borough. TTM’s contract with the borough allowed for the replacement of staff or reimbursement of fees for any staff that left the department within the first six months.
Staff
The Los Angeles recruits took up to six months to take up their posts as the GSCC registration was coming into effect and there were long delays in registering. Eventually, the borough decided to let staff start as long as they had applied and were awaiting registration and put a clause in their contracts making the offer subject to registration. This meant that the Los Angeles and Boston appointees arrived simultaneously in two batches at the end of January 2005 and end of February 2005. Five of these staff left within six months. Of these two went to other London boroughs, one returned to the USA for family reasons and two decided that they didn't want to do social work in England. Two of the USA recruits are now in senior social worker positions and one is acting assistant team manager. There is a wide range within ethnicity and age, the oldest recruit being fifty-nine.
Resources
- Preparation for the website
- Short listing candidates
- Interviewing
- Recruitment packs marketing the borough
- Welcome packs
There were also resource implications in terms of induction, mentoring and generally settling in and retaining staff. For this purpose the borough employed an ‘overseas support worker’ (OSW) initially on an eighteen hour a week temporary contract. The OSW started just before Christmas 2004 and her contract was extended to full time until December 2005. Work has involved finding accommodation, sorting bank accounts, meeting and greeting, arranging NI numbers, FBI checks, health checks, planning and running the induction programme, focus groups for managers and new recruits in liaison with the strategic HR manager. Due to the time differences in the USA it meant that the OSW had to work very flexible hours.
Of the thirty-two C&F social workers recruited eight (including the five that left in the first six months) have left the department. As indicated TTM will be replacing these free of charge. All eight mental health social workers recruited are still in post.
This whole project has lasted over a year and as stated in the case for improvement is only one strand of a three-pronged approach to recruiting social workers. Clearly, with a national shortage of social workers the borough was looking to recruit overseas staff and had to be careful not to flood the department with one particular group of staff. The results of the investment in the overseas project, recruitment from within the UK and investment in trainee social workers has resulted in the overall vacancy rate drastically reducing from by 51 posts to 16 posts.
The figures by each employee group are as follows.
| Employee Group/ Vacancies as at: | March 2004 | January 2006 | |---------------------------------|------------|--------------| | Social Workers | 32 | 8 | | Senior Social Workers | 4 | 1 | | Assistant Team Managers | 6 | 5 | | Deputy Team Manager | 1 | 0 | | Team Managers | 6 | 2 | | Service Managers | 2 | 0 | Improving through people
Commitment to the project was necessary at all levels within the borough. Clearly for a project of this cost it was necessary to get approval from councillors. Also, buy in had to be worked on with the social work team managers and service managers to integrate a large number of overseas workers who would require extra input in terms of orientation and knowledge about the English system of social work. In conjunction with the overseas support worker the borough ran groups with the aforementioned to gain commitment to this. This was helped by the planned induction programme which lasted two weeks. This involved getting managers to explain about systems here as well as general orientation into the things that living here we just take for granted. For example, setting up a bank account, registering for a doctor, how to get a phone installed, 999 means emergency services. What has become apparent is that although English is the common language, it is very different.
Strategic HR Manager: January 2006 Appendix VI
Related Initiatives
Consideration needs to be given to how the London Councils Recruitment & Retention Strategy fits in to the wider employment agenda.
For example:
LOCAL GOVERNMENT PAY AND WORKFORCE STRATEGY
Local government is now leading the Local Government Pay and Workforce Strategy (LGPWS), with DCLG taking a supportive back seat. The new LGPWS Steering Group has decided to review the Strategy to ensure that it:
- is fully local government owned; particularly using the opportunity to get Leaders and chief executives on board
- is fully integrated as the ‘people element’ of the new National Improvement Strategy
- supports the implementation of People and Places and the White Paper
- takes account of other key current drivers such as the Varney Review and CSR 2007
AUDIT COMMISSION NATIONAL STUDIES 2007
The Audit Commission national studies programme aims to improve local public services through its independent authoritative analysis of national evidence and local practice. Their national reports address strategic issues affecting specific sectors as well as the public sector as a whole. The research identifies practice that works, highlights emerging findings and examines national trends to influence local practice and national policy.
The following study may be of interest - ‘Public Sector Workforce - Challenges for the Future’. The government is placing increasing importance on pay and productivity in the public sector. This study builds on previous Commission work to explore how local public bodies are preparing for future demands on their workforce.
The project is currently being scoped and contact has been made with the Audit Commission; a response is awaited. Appendix VII
Survey
The survey questionnaire and notes for guidance were emailed to all boroughs on 26 April 2006. The initial closing date was 16 June 2006. Boroughs were updated on the progress of the survey on a number of occasions via emails and meetings.
Response
Twenty-eight out of the thirty-three boroughs provided a partial or full response to the survey. Response by Inner and Outer London is as follows:
| | Number | Percent | |----------|--------|---------| | Inner London | 10 | 77% | | Outer London | 18 | 90% |
Not all boroughs were able to provide full replies; it is therefore problematic to provide exact information on the number of boroughs completing the various parts of the survey.
Data
For the eight occupations combined there are 3,415.9 FTE vacancies. Although this figure is higher than the 3,237.6 reported in 2003/04, the increase was more than ‘offset’ by an increase in the number of ‘funded posts’ reported. Hence the decease in the overall vacancy rate - falling from 25.4% to 23.3% - over 2003/04 to 2005/06.
For the 2004/05 and 2005/06 surveys the total number of ‘funded posts’ reported was broadly similar - 14,322.0 and 14,642.2 respectively. The total number of vacant posts reported decreased by just over two hundred - 3,628.0 to 3,415.9 - and the vacancy rate fell by two percentage points, 25.3% to 23.3%.
Data Distribution
The table overleaf shows the ‘data distribution’ for both surveys using ‘funded posts’ and ‘percent of posts vacant’ as reference points.
The figures reveal that the data distribution for all three surveys is broadly similar, although there are some variations. The variations, at least to some extent, may be accounted for by the difficulties some boroughs have in classifying jobs into meaningful occupational groups.
### Funded/Vacant Posts Distribution by Occupation
| Occupation | Funded Posts (FTEs) | Percent of Posts Vacant | |-----------------------------|---------------------|-------------------------| | | 2003/04 | 2004/05 | 2005/06 | 2003/04 | 2004/05 | 2005/06 | | SW - Community Care | 26% | 27% | 27% | 25% | 26% | 25% | | SW - Children & Families | 35% | 36% | 35% | 40% | 41% | 40% | | SW - Residential | 11% | 8% | 9% | 11% | 7% | 7% | | Building Control | 4% | 4% | 4% | 3% | 3% | 3% | | Transport Engineering | 5% | 5% | 4% | 6% | 6% | 6% | | Environment Health | 8% | 8% | 8% | 4% | 6% | 6% | | Trading Standards | 3% | 3% | 3% | 2% | 2% | 2% | | Planning | 8% | 9% | 9% | 8% | 10% | 10% |
Note: For example, the ‘percent of vacant posts’ column shows the relative position of each group, so, for example, 40% of all the vacancies identified in the 2003/04 survey are in social workers - children & families.
### Grossing
#### Part A: Recruitment and Retention
In order to make an estimate of the total number of vacancies any data missing from the survey returns was estimated, or grossed, using patterns or relationships observed in those boroughs that did respond. Non-respondents were grossed to the equivalent of a 100% response. For example, vacancies rates were estimated by assuming that the average rates among responding boroughs hold true for non-respondents.
#### Part B: Workforce Information
The information shown in this part of the report is not grossed and is based on the actual data provided. Including boroughs that did not provide data would result in ‘not known’ figures of approximately 5% to 10%, and decreases in the other percentages accordingly.
Please refer to the survey notes for guidance for the definitions used in the survey.
### Appendix VIII: Examples of Jobs in Each Occupation Covered by the Survey
| SW CC | SW CC – ASW | SW C & F | SW Residential | Building Control | Transportation Engineer | Environmental Health | Trading Standards | Planning | |-------|-------------|----------|----------------|------------------|------------------------|----------------------|------------------|----------| | Care Manager | Approved Team Manager | Social Worker | Assistant Residential Manager | Building Control Officer/ Surveyor | Engineer/ Traffic Engineer | Environmental Health Officer | Trading Standards Officer | Career Grade Planner | | Senior Care Manager | Practice Manager | Senior Social Worker | Residential Social Worker | District Building Control Officer | Project Engineer | Enforcement Senior Enforcement Officer | Senior Trading Standards Officer | Senior Planner | | Qualified Social Worker | Approved Social Worker | Senior Practitioner | Team Leader | Senior Building Control Officer/ Surveyor | Traffic Commissioning Officer | Senior Health Officer | Trading Standards Enforcement Officer | Senior Planning Officer | | Social Worker | Duty Social Worker | Placement Manager | Care Officer | Principal Building Control Officer/ Surveyor | Assistant/Senior Transportation Officer | Area Environmental Health Officer | Area Trading Standards Officer | Planning Officer | | Senior Social Worker | Senior Practitioner | Team Manager | Senior RSW | Team Leader | Senior Engineer | Safety Enforcement Officer | Commercial Standards Officer | Principal Planner | | Senior Practitioner | Team Leader | Assistant Team Manager | Residential Manager | Group Building Control Surveyor | Transport Officer | Operations Manager | Operations Manager | Principal Planning Officer | | Team Manager | Team Manager | Consultant Practitioner | Senior Practitioner | Section Manager | Project Engineer | Assistant Unit Manager | Assistant Unit Manager | Planning Officer / Enforcement Officer | | Senior Practitioner | Team Manager | Home Manager | Enforcement Officer | Principal Engineer | Team Leader | Principal Trading Standards Officer | Planner | | Case Support Manager | Team Leader | Principal Transport Planner/Engineer | Principal Environmental Health Officer | Principal Enforcement Officer | Group Planner | | | Team Leader/ Deputy Officer in Charge | Development & Transport Planning Manager | Section Manager | Team Leader | Team Leader/Area Team Leader | | | Deputy Care Manager | Principal Traffic Engineers | Group Manager | Fair Trading Officer | Planning Manager | | | Senior Residential Social Worker | Principal Transportation Officer | Assistant Team Manager | Specialist Team Leader | Project Manager | | | Officer in Charge | Section Manager | Lead Environmental Health Officer | Section Manager | Area Manager | | | Assistant Manager | Senior Project Engineer | Assistant Area Planning Officer | | | Principal Residential SW | Senior Engineer Traffic | Section Manager | | Borough | 2005/06 | 2004/05 | 2003/04 | |-------------------------------|---------|---------|---------| | Barking & Dagenham | ✓ | ✓ | ✓ | | Barnet | ✓ | ✓ | ✓ | | Bexley | ✓ | ✓ | ✓ | | Brent | ✓ | ✓ | ✓ | | Bromley | ✓ | NR | ✓ | | Camden | ✓ | ✓ | ✓ | | Croydon | NR | ✓ | ✓ | | Ealing | NR | ✓ | NR | | Enfield | ✓ | NR | ✓ | | Greenwich | ✓ | ✓ | ✓ | | Hackney | NR | ✓ | ✓ | | Hammersmith & Fulham | ✓ | ✓ | ✓ | | Haringey | ✓ | ✓ | ✓ | | Harrow | ✓ | ✓ | ✓ | | Havering | ✓ | ✓ | ✓ | | Hillingdon | ✓ | ✓ | ✓ | | Hounslow | ✓ | NR | ✓ | | Islington | ✓ | ✓ | ✓ | | Kensington & Chelsea | ✓ | ✓ | ✓ | | Kingston upon Thames | ✓ | ✓ | ✓ | | Lambeth | NR | NR | ✓ | | Lewisham | ✓ | ✓ | ✓ | | Merton | ✓ | ✓ | ✓ | | Newham | ✓ | ✓ | ✓ | | Redbridge | ✓ | ✓ | NR | | Richmond | ✓ | ✓ | ✓ | | Southwark | ✓ | ✓ | ✓ | | Sutton | ✓ | ✓ | ✓ | | Tower Hamlets | ✓ | ✓ | ✓ | | Waltham Forest | ✓ | ✓ | ✓ | | Wandsworth | ✓ | ✓ | ✓ | | Westminster | ✓ | ✓ | ✓ | | City of London | NR | ✓ | ✓ | | **Total** | **28** | **29** | **31** |
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804d6fca49ef40e868ca0d690bef3fe289549634 | Internal Audit Report
ALL SAINTS’ SCHOOL (NW2) 4 October 2018
To: Chair of Governors Headteacher
Copied to: Education and Skills Director Strategic Director (Children and Young People) School Finance Manager (Finance Service) Local Authority Appointed Governor Clerk to Governors
Contact: Internal audit
We would like to thank management and staff of All Saints’ School NW2 for their time and co-operation during the course of the internal audit. Executive Summary
| Assurance level and Direction of Travel | Number of actions by risk category | |----------------------------------------|-----------------------------------| | Limited | Critical | High | Medium | Low | Advisory | | | - | 2 | 3 | 2 | - |
Background and Scope
The audit of All Saints’ School was carried out as part of the planned School audits for 2018-19. The audit review covered the period December 2016 to June 2018.
All Saints’ School is a Voluntary Aided school with 190 pupils on role aged between 4 and 11 years of age. The School budgeted expenditure for 2018/19 is £1,173,874 with employee costs of £893,000 (76% of budgeted expenditure).
The School was assessed as ‘Requires Improvement’ by OFSTED in January 2017.
A review of the four recommendations reported in the previous audit report dated 12 July 2016 found that three recommendations had been partially repeated (Governance, Income and Assets).
The aim of the audit is to provide assurance on key areas of financial management. The review covered all major systems within the school to ensure compliance with the Scheme for Financing Schools and the Barnet Financial Guide for Schools, including Barnet Contract Standing Orders for Schools.
The scope of the audit included assessment of the following:-
- adequacy of accounting, financial and other controls;
- compliance with established plans and procedures;
- the integrity and reliability of financial and other information;
- whether assets and other interests of the Council are properly safeguarded; and
- whether the use of resources achieves value for money.
In addition to the above, a review of the ‘Schools Financial Values Standard’ (SFVS) self-assessment was conducted to ensure that the self-assessment has been completed in line with requirements. The standard has been designed to assist schools in managing their finances and to give assurance that they have secure financial management in place. Summary of findings
The table provided in Appendix 2 lists the areas audited and the number of recommendations in each area. Definitions of audit assurance levels and risk ratings for the issues identified are provided in Appendix 1.
As part of the audit we were able to give ‘Limited’ Assurance to the school, noting two high, three medium and two low priority issues as part of the audit:
- **Contracts**– An up to date contract could not be found in school for the photocopier contract and there was no evidence of a value for money exercise having been undertaken. (High rated);
- **Assets**– The inventory was not found to be complete. Annual review was not completed. No formal Governor approval of disposals. (High rated);
- **Budget Monitoring**– There was no evidence that Forecasts prepared at the end of September and December 2017 were submitted to governors as part of the school’s budget monitoring process. Where the Forecast was used as the documentation of virements in school, there was no evidence that the Chair of Governors had signed virements in excess of £15,000. (Medium rated);
- **Purchasing**– Procedures when using the school debit cards should be reviewed, documented and agreed by Governors to ensure a complete audit trail, separation of duties and proof of receipt of goods. A Governor should sign to authorise payments made by the Headteacher. (Medium rated);
- **Income**–There was no clear way of reconciling money received from sale of ties, book bags, water bottles and swim hats to the money paid into the bank. Donations received from parents for school trips should be countersigned by the Headteacher. (Medium rated);
- **Governance**– The financial management policy and procedures document should be updated and approved by Governors to reflect use of Natwest ‘Bankline’ software to make payments from the school bank account. The Notice of Authorised signatories should be updated for Bankline payments and to allow for absences (at least two signatories for each area of authorisation). (Low rated).
Following our ‘Schools Financial Values Standard’ (SFVS) self – assessment review we were able to confirm that there were no major discrepancies in judgements noted, however, although the School has responded with ‘Yes’, in the areas outlined below, it is the opinion of audit that this area has either not been met, or met ‘In-Part’ (refer also to Appendix 3 below):
**A5**: Are business interests of governing body members and staff properly registered and taken into account so as to avoid conflicts of interest? - The school has answered ‘Yes’, but there was no evidence of review of business interests of some members of staff.
**D20**: Is the governing body sure that there are no outstanding matters from audit reports or from previous consideration of weaknesses by the governing body? - The school has answered ‘Yes’, but three findings from the previous audit have been repeated (Governance, Income and Assets)
**D21**: Are there adequate arrangements in place to guard against fraud and theft by staff, contractors and suppliers? - The school has answered ‘Yes’, but refer to Findings (Purchasing/Income/Assets), which should be addressed to ensure procedures are as robust as possible.
**D25**: Does the school have an appropriate business continuity or disaster recovery plan, including an up-to-date asset register and adequate insurance? - The school has answered ‘Yes’, but the asset register was not found to be complete.
## 2. Findings, Recommendations and Action Plan
| Ref | Finding | Risks | Risk category | Agreed action(s) | |-----|---------|-------|---------------|------------------| | 1. | **Contracts** | | | | | | **Objective** – To ensure that the School's purchasing, tendering and contracting arrangements achieve value for money | There is a risk that the school may not be seen to be: | **High** | **Actions:** For procurement exercises, quotes will be obtained and evaluated in line with ‘Contract standing order for schools.’ Records of quotes and evaluations will be retained for referral and scrutiny. Minutes of meetings will include consideration by governors of quotations for the renewal/procurement of any relevant contract, to ensure that there is clear and visible evidence of a fair and transparent selection process. Signed contracts for services procured will be held by schools for referral where necessary. | | | **Finding** – The school has photocopier and printer lease contracts with Apogee. Although the school advised that a value for money exercise had been undertaken, due to recent changes in finance staff, paperwork was not available at the audit visit to confirm this. Current contracts for the leased photocopiers and printers in school were not found in the contracts file. | - Achieving ‘value for money’; - Demonstrating that it has acted in a fair and transparent manner when selecting contracts for works and services. -The school may be unable to prove that systems are in place to manage and monitor contracts, where a comprehensive current contract is not available in school. | | **Responsible officer:** Headteacher/Finance Support Officer **Target date:** Autumn term 2018 | | 2. | **Assets** | Failure to maintain a complete and accurate inventory could result in the School failing to identify possible lost/missing equipment and having insufficient details to provide in the event of an insurance claim. | **High** | **Actions:** The Inventory will be updated with reference to the Barnet Schools Financial Guide, section 4.8 (Control of Assets). Annual check will be completed and Governors will approve disposals. | | | **Objective** - To ensure that the school has adequate controls and records to safeguard its valuable/moveable assets and items of inventory. | | | **Responsible officer:** Secretary/Headteacher/Governors **Target date:** Spring term 2019 | | | **Finding** - A review of the school’s inventory found that where items were purchased prior to July 2017, insufficient details were recorded to comply with the Financial Guide for schools (no note of supplier or date of purchase). There was no evidence of annual review. The school had recently recorded disposal of school assets for approval by the Governing Body, but insufficient detail was presented for each item to comply with the financial guide for schools (no note of asset description, or approximate value). | | | | | Ref | Finding | Risks | Risk category | Agreed action(s) | |-----|---------|-------|---------------|-----------------| | | We reconciled IT purchases included in an invoice of £35,203.07 relating to the purchase of IT equipment during 2017-18 to the Fixed Asset Register/Inventory. We were able to reconcile 86% of IT purchases. The inventory therefore needs to be updated to include the remaining items. | The budget may not be adequately controlled and monitored resulting in budget overspends or fraud going undetected. The Governing Body may not be able to discharge its responsibility for effective budget monitoring and control, if accurate and timely information is not provided as required. | Medium | Actions: The school will refer to the Financial Guide for schools section 2.5 (Budget monitoring and control) and section 2.3 (Preparation and Submission of Year-End Forecasts) for guidance. Forecasts will be submitted to governors as part of the school’s budget monitoring process. Virements more than £15,000 will be signed by the Chair of Governors. Responsible officer: Headteacher/Governing Body/Finance Support officer Target date: Autumn term 2018 |
3. **Budget Monitoring**
**Objective** – To ensure that the school carries out regular monitoring of income and expenditure against agreed budgets, providing effective financial management.
**Finding** – The school prepared an annual budget for 2017/18 which was approved by the Governors in March 2017. Regular budget monitoring using the ‘Budget vs Actual vs Committed’ report was completed through the financial year 2017/18 and shared with Governors. A Year End forecast was provided to the London Borough of Barnet in September 2017 and December 2017, but it was not possible to confirm that these forecasts were shared with Governors. The Notice of Authorised Signatories states that the Chair of Governors must sign virements in excess of £15,000. Signed virements could not be found at the audit visit. Where the Forecast reports were used as the documentation of virements, there was no evidence that the Chair of Governors had signed virements in excess of £15,000. | Ref | Finding | Risks | Risk category | Agreed action(s) | |-----|---------|-------|---------------|-----------------| | 4. | **Purchasing**\
**Objective** – To ensure that the School’s purchasing, tendering and contracting arrangements achieve value for money\
**Finding** The school has school debit cards issued to the Headteacher and Deputy Headteacher. The cards are used to purchase school supplies offsite and online. Purchase order forms were completed for purchases (purchase orders are completed after the purchase has taken place for the offsite purchases), however there was no control in place to prevent the Secretary authorising both purchase order and invoice. The purchase orders for the period May 2017 were not filed consistently with proof of delivery for internet purchases. Supplementary guidance issued by the Schools Finance Services Manager in November 2016 states that where the Headteacher is making the purchase using a debit card, approval for the purchase will be required from the Chair of Governors. This approval has not been included in the school’s debit card policy. All transactions made on the Headteacher’s card were authorised by the Secretary. | There is a risk:\
i) That goods and services may be purchased which are not in line with School requirements;\
ii) Payments could be made by the School without receiving the goods/services, in the absence of proper verification of receipt; | **Medium** | **Actions:**\
The School will review the debit card policy and use of the school debit cards to ensure that all purchases are reviewed and executed in accordance with requirements as approved within the School’s Financial Management Policy and Procedures document, ensuring at all times that a separation of duties exists, between purchase order request, purchase order approval and online payment by debit card, sufficient budget is available, a record is kept of delivery to the school and that approved purchase orders and debit card order authorisation forms are retained for each purchase for independent review and scrutiny where necessary.\
When the Headteacher’s debit card is used, purchases will be countersigned by the Chair of Governors.\
**Responsible officer:**\
Headteacher/Finance Support Officer/Secretary/Governing Body\
**Target date:**\
Autumn term 2018 | | Ref | Finding | Risks | Risk category | Agreed action(s) | |-----|---------|-------|---------------|-----------------| | 5. | **Income**<br>**Objective** – To ensure that all income due to the school is identified, collected, receipted, recorded and banked promptly and that, administration arrangements are adequate and effective.<br><br>**Finding** – Our review of school records showed that sale and stock records are kept for the small stock of school ties, book bags, water bottles and swim hats kept and sold in school, however it was not possible to reconcile these records to the amounts paid into the bank.<br><br>The school keeps records for amounts of income received and banked for school trips. In September 2017, the school changed to a system where parents are asked to contribute a donation instead of a recommended contribution amount to the cost of educational visits. There is no documented procedure for reminding parents that sums are due, and at the audit visit for one trip for one year group 78% of payments had not been received.<br><br>The same officer is responsible for collection, recording and banking of all income. Although the school had started to record a check by the Finance officer, as the Finance officer is not employed by the school, it is the opinion of audit that countersignature by the Headteacher would be more appropriate to evidence controls over income due to the school. | There is a risk of errors, financial loss and possible fraud or misappropriation of income, in the absence of;<br>-Independent checks to confirm amounts banked agree to source records;<br>-Clear audit trails and records for all income due/received. | **Medium** | **Actions:**<br>Strict income controls and procedures will be put in place to ensure effective financial management. Independent checks should be carried out to verify amounts banked agree to source records. These checks should be visibly evidenced. Reference: The Barnet Schools Financial Guide, section 7 (Income collection and administration)<br><br>**Responsible officer:**<br>Headteacher/Finance Support Officer/Secretary<br><br>**Target date:**<br>Autumn term 2018 | | Ref | Finding | Risks | Risk category | Agreed action(s) | |-----|---------|-------|---------------|-----------------| | 6. | **Governance**\
**Objective** – To ensure the responsibilities of the governing body, its committees, the head teacher and staff are clearly defined and limits of delegated authority established; and that management, organisation and arrangements are adequate and effective leading to sound financial decisions.\
**Finding** - A review of the current Financial Management Policy and Procedures document (FMP) found that it does not fully reflect the following:\
The use of the Natwest Bankline software to make payments from the school bank account.\
The Notice of Authorised Signatories was last updated in June 2018. The form states that all online bank payments above £2000 will be approved by two authorised persons. The school bank account is part of the contract held with the London Borough of Barnet, and the contract is set so that two authorisations are required for payments larger than £1000.\
The financial guide for schools also states that the Notice of authorised signatories should allow for absences – at least two signatories for each area of authorisation. The school bank mandate requires that all cheques will be signed by two authorised signatories. Only two authorised signatories are listed on the bank mandate – the Headteacher and the Deputy Headteacher, this could leave the school unable to make payments from the bank if either person is absent from school.\
The Notice of Authorised Signatories should be revised as soon as possible to reflect the Bank Mandate and allow for absences. | There is a risk to the effective financial management of the School if, in the absence of an up to date Financial Management and Procedures Policy, Governing Body members and key staff are not able to fulfil their responsibilities consistently.\
There is a risk that the school will have to pay late payment fees, or have services to the school withdrawn if they are unable to pay invoices if one of the current two signatories is absent from school. | **Low** | **Actions:**\
The Financial Management Policy will be reviewed and updated with reference to the Barnet Schools Financial Guide.\
The school will update the Notice of Authorised Signatories and send to the Local authority.\
**Responsible officer:**\
Headteacher/Governing Body\
**Target date:**\
Autumn term 2018 |
### Appendix 1: Definition of risk categories and assurance levels in the Executive Summary
| Risk rating | Description | |-------------|-------------| | **Critical** | Critical issue where action is considered imperative. Action to be effected immediately. | | **High** | Fundamental issue where action is considered imperative to ensure that the School is not exposed to high risks, also covers breaches of legislation and policies and procedures. Action to be effected within 1 to 3 months. | | **Medium** | Significant issue where action is considered necessary to avoid exposure to risk. Action to be effected within 3 to 6 months. | | **Low** | Issue that merits attention/where action is considered desirable. Action usually to be effected within 6 to 12 months. |
| Level of assurance | Description | |-------------------|-------------| | **Substantial** | The standard of controls operating in the systems audited at the school is robust and provides substantial confidence that the school is protected from loss, waste, fraud or error. | | **Reasonable** | The standard of controls operating gives reasonable assurance that the school is protected from loss, waste, fraud or error but there may be areas which need to be strengthened to provide robust confidence in the system of internal control. | | **Limited** | The standard of controls is insufficient to give confidence that the school is protected from loss, waste, fraud or error. Prompt attention needs to be given to strengthening one or more areas of the control system before sufficient confidence is provided. | | **No** | The standard of controls is poor and places the school in potential danger of loss from waste, loss, fraud or error. Urgent attention needs to be given by management to addressing weaknesses identified in the audit. | Appendix 2 – Areas audited and analysis of findings
| Area | Summary of Findings | |-------------------------------------|---------------------| | | Critical | High | Medium | Low | Advisory | | Governance | | | | | | | Financial Planning | | | | | | | Budget Monitoring | | | | | | | Purchasing | | | | | | | Contracts | | | | | | | Income | | | | | | | Lettings | | | | | | | Banking & Petty Cash | | | | | | | Payroll | | | | | | | Tax | | | | | | | Voluntary Funds | | | | | | | Assets | | | | | | | Insurance | | | | | | | Data Security | | | | | | | Pupil Premium | | | | | | | Safeguarding\* | | | | | | | Schools Financial Values Standard | | | | | |
\*Scope limited to confirmation as to whether the school has completed a Safeguarding audit tool and whether any issues were noted over its Single Central Record
| Timetable | |------------------------------------| | Audit agreed: | | 7 June 2018 | | Fieldwork commenced: | | 9 July 2018 | | Fieldwork completed: | | 10 July 2018 | | Draft report issued: | | 12 September 2018 | | Management comments received: | | 24 September 2018 | | Final report issued: | | 4 October 2018 |
### Appendix 3 – Review of Schools Financial Values Standard 17/8
| LIST OF QUESTIONS | SCHOOL RESPONSE | AUDIT CONCLUSION FOLLOWING REVIEW OF COMMENTS AND EVIDENCE | |----------------------------------------------------------------------------------|-----------------|------------------------------------------------------------| | **A: The Governing Body and School Staff** | | | | 1. In the view of the governing body itself and of senior staff, does the governing body have adequate financial skills among its members to fulfil its role of challenge and support in the field of budget management and value for money? | Yes | Agreed | | 2. Does the governing body have a finance committee (or equivalent) with clear terms of reference and a knowledgeable and experienced chair? | Yes | Agreed | | 3. Is there a clear definition of the relative responsibilities of the governing body and the school staff in the financial field? | Yes | Agreed | | 4. Does the governing body receive clear and concise monitoring reports of the school's budget position at least three times a year? | Yes | Agreed | | 5. Are business interests of governing body members and staff properly registered and taken into account so as to avoid conflicts of interest? | Yes | In Part – No Business Interests forms for some staff | | 6. Does the school have access to an adequate level of financial expertise, including when specialist finance staff are absent, eg on sick leave? | Yes | Agreed | | 7. Does the school review its staffing structure regularly? | Yes | Agreed | | 8. Have your pay decisions been reached in accordance with a pay policy reflecting clear performance criteria? | Yes | Agreed | | 9. Has the use of professional independent advice informed part of the pay decision process in relation to the headteacher? | Yes | Agreed | | **B: Setting the Budget** | | | | 10. Is there a clear and demonstrable link between the school’s budgeting and its plan for raising standards and attainment? | Yes | Agreed | | 11. Does the school make a forward projection of budget, including both revenue and capital funds, for at least three years, using the best available information? | Yes | Agreed | | | Question | Yes | Agreed | |---|--------------------------------------------------------------------------|-----|--------| | 12. | Does the school set a well-informed and balanced budget each year (with an agreed and timed plan for eliminating any deficit)? | Yes | Agreed | | 13. | Is end year outturn in line with budget projections, or if not, is the governing body alerted to significant variations in a timely manner, and do they result from explicitly planned changes or from genuinely unforeseeable circumstances? | Yes | Agreed | | **C: Value for Money** | | | | | 14. | Does the school benchmark its income and expenditure annually against that of similar schools and investigate further where any category appears to be out of line? | Yes | Agreed | | 15. | Does the school have procedures for purchasing goods and services that both meet legal requirements and secure value for money? | Yes | Agreed | | 16. | Are balances at a reasonable level and does the school have a clear plan for using the money it plans to hold in balances at the end of each year? | Yes | Agreed | | 17. | Does the school maintain its premises and other assets to an adequate standard to avoid future urgent need for replacement? | Yes | Agreed | | 18. | Does the school consider collaboration with others, eg on sharing staff or joint purchasing, where that would improve value for money? | Yes | Agreed | | 19. | Can the school give examples of where it has improved the use of resources during the past year? | Yes | Agreed | | **D: Protecting Public Money** | | | | | 20. | Is the governing body sure that there are no outstanding matters from audit reports or from previous consideration of weaknesses by the governing body? | Yes | In Part – three findings have been repeated | | 21. | Are there adequate arrangements in place to guard against fraud and theft by staff, contractors and suppliers (please note any instance of fraud or theft detected in the last 12 months)? | Yes | Refer to Findings/Recommendations Purchasing/Income/Assets | | 22. | Are all staff aware of the school’s whistleblowing policy and to whom they should report concerns? | Yes | Agreed | | 23. | Does the school have an accounting system that is adequate and properly run and delivers accurate reports, including the annual Consistent Financial Reporting return? | Yes | Agreed | | 24. | Does the school have adequate arrangements for audit of voluntary funds? | Not Applicable | Agreed | | 25. Does the school have an appropriate business continuity or disaster recovery plan, including an up-to-date asset register and adequate insurance? | Yes | In Part – asset register was not complete | Appendix 4 – Internal Audit roles and responsibilities
Limitations inherent to the internal auditor’s work We have undertaken the review of All Saints’ School, subject to the limitations outlined below.
Internal control Internal control systems, no matter how well designed and operated, are affected by inherent limitations. These include the possibility of poor judgment in decision-making, human error, control processes being deliberately circumvented by employees and others, management overriding controls and the occurrence of unforeseeable circumstances.
Future periods Our assessment of controls is for the period specified only. Historic evaluation of effectiveness is not relevant to future periods due to the risk that:
- the design of controls may become inadequate because of changes in operating environment, law, regulation or other; or
- the degree of compliance with policies and procedures may deteriorate.
Responsibilities of management and internal auditors It is management’s responsibility to develop and maintain sound systems of risk management, internal control and governance and for the prevention and detection of irregularities and fraud. Internal audit work should not be seen as a substitute for management’s responsibilities for the design and operation of these systems.
We endeavour to plan our work so that we have a reasonable expectation of detecting significant control weaknesses and, if detected, we shall carry out additional work directed towards identification of consequent fraud or other irregularities. However, internal audit procedures alone, even when carried out with due professional care, do not guarantee that fraud will be detected.
Accordingly, our examinations as internal auditors should not be relied upon solely to disclose fraud, defalcations or other irregularities which may exist.
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4c4fee10983af17fe0f480db223994435a6fbe2a | All Saints RC School City of York Council Internal Audit Report 2016/17
Business Unit: Children’s Services, Education & Skills, Headteacher: W Scriven Date Issued: 16/02/17 Status: Final Reference: 15692/001
| Actions | P1 | P2 | P3 | |---------|----|----|----| | Overall Audit Opinion | Substantial Assurance | Summary and Overall Conclusions
Introduction This audit was carried out on Wednesday 16th November and Thursday 17th November 2016 as part of the Internal Audit plan for Education, Skills and Children's Services for 2016/17.
Objectives and Scope of the Audit The purpose of this audit was to provide advice to the Governors, Head Teacher and the Authority's Section 151 Officer about the financial management procedures and assurance that internal controls of the school were operating effectively to manage key risks, both financial and otherwise. The audit covered the following areas in accordance with the specification issued on 6th October 2016:
- Governance;
- Financial Management;
- System Reconciliation;
- Petty Cash
- Contracts – Ordering, Purchasing and Authorisation;
- Income;
- Capital and Property;
- Additional School Activity Provision;
- Human Resources;
- Payroll;
- School Meals;
- Pupil Numbers;
- Voluntary Funds Monitoring Arrangements;
- Data Protection and Information Technology;
- Insurance and Risk Management;
- Joint Use Facilities;
- Inventory Records;
- Minibus;
- Security; and
- Safeguarding Arrangements. Key Findings The audit found that there were good procedures in place for financial management and governance at the school. However recommendations were made in a number of areas. The register of interests for Governors and published policies should be updated on the schools website. Published policies should include the Information Commissioners model Publication Scheme and Guide to Information. A register of interests should be maintained for staff with financial responsibilities. All procurement should be completed in accordance with the Council’s Contract Rules. The school should take care to ensure that VAT is only reclaimed where a VAT invoice or receipt is in place. A cheque log should be maintained to ensure all cheque stationery is accounted for. Financial Monitoring reports issued to Governors using data manually extracted from the Finance System should be accompanied by a system report to confirm the accuracy of extracted balances and a full record of discussions relating to the presented monitoring report should be maintained and referred to in the Finance Committee minutes. Controls should be in place to ensure an annual check of departmental inventories has been completed and all inventory records should be held in a secure location.
Overall Conclusions It was found that the arrangements for managing risk were good with few weaknesses identified. An effective control environment is in operation, but there is scope for further improvement in the areas identified. Our overall opinion of the controls within the system at the time of the audit was that they provided Substantial Assurance. 1 Register of Interests
| Issue/Control Weakness | Risk | |---------------------------------------------------------------------------------------|-------------------------------------------------------------------------------------------------------------------------------------| | The school does not have a current register of interests in place for staff with financial responsibilities. The register of interests for Governors published on the schools website was neither complete nor up to date. | The requirements of the Constitution of Governing Bodies Statutory Guidance 2015 in relation to transparency are not being met and the school may not be able to fully justify purchasing decisions in the event of challenge. |
Findings
Governors and members of staff with financial responsibilities may be in a position to influence the placing of contracts in which they have a personal interest and must therefore ensure that all significant interests are declared. A register of interests must be maintained and reviewed on an annual basis. The school’s purchasing procedures should ensure that any officer declaring a relevant interest is not involved in the purchasing decision.
In the interests of transparency, and in accordance with statutory guidance the governing body is required to publish on its website up-to-date details of its register of interests and other governance arrangements.
A register of interests for staff was found at the school but had not been kept up to date. A current register of interests for Governors was in place, however the register had not been updated on the schools website.
Recommendation
The school should ensure that all staff with financial responsibilities, in particular those who can sign orders and influence purchasing decisions, sign a declaration of interests on an annual basis. At minimum this register should cover all budget holders and members of the senior leadership team who may be able to influence purchasing decisions. The register must be renewed annually and officers made aware of the need to declare any relevant interests as they may arise.
The register of interests for Governors should be updated on the school’s website.
Agreed Action 1.1
All Senior Leadership Team members, budget holders and Finance personnel have now signed a declaration of interest which details the examples of conflicts of interest, why each have to declare these interests, each of their responsibilities and the implication for not declaring any interest. Declarations will be renewed at the start of every academic year.
| Priority | Responsible Officer | Timescale | |----------|---------------------|-----------| | 3 | Business Manager & Head of Support Services | Complete | 2 School Policies
| Issue/Control Weakness | Risk | |---------------------------------------------------------------------------------------|----------------------------------------------------------------------| | The school has not adopted a current Publication Scheme and associated Guide to Information. These documents should be published on the school’s website. It was noted that a number of policies published on the school’s website were out of date. | Policies may be out of date and not compliant with current legislation or Governors requirements. The school may not comply fully with the requirements under the Data Protection Act (DPA), Environmental Regulations (EIR) and Freedom of Information Act (FOIA). |
Findings
The school’s schedule of policies recorded that a Publication Scheme had been approved in 2012 however a copy was not available at the school and there was no evidence of review. The Information Commissioner specifies that schools must adopt a current model Publication Scheme and Guide to Information and these documents should be made available on the school’s website.
A number of the policies published on the school’s website were out of date. This appeared to be due in some cases to a failure to update after review.
Recommendation
The school should ensure they have adopted the Information Commissioners Model Publication Scheme with the Guide to Information available from the ICO website. The approved scheme and Guide to Information should be published on the schools website and where possible the information referred to in the schedule made available via the website.
The policies on the schools website should be checked to ensure they are the most up to date versions. Where policies are out of date they should be scheduled for review.
Agreed Action 2.1
An adopted Information Commissioners Model Publication Scheme and Guide to Information will be added to the website. The website will give details about general access to information and policies and will eventually hold all the various school policies. Policies on the website will be reviewed on a termly basis to ensure they are up to date.
| Priority | Responsible Officer | Timescale | |----------|---------------------|-----------| | 3 | Business Manager & Head of Support Services | 30 April 2017 | 3 Contract Review
| Issue/Control Weakness | Risk | |------------------------|------| | The school has compiled a schedule recording ongoing contractual arrangements. This has not as yet been presented to Governors. | Best value may not be obtained from service contracts at the school. |
Findings
A contract schedule detailing all ongoing contractual arrangements at the school is in place but requires update to include all current contracts. The schedule including contract costs and contract end dates had not been presented to Governors to evidence that the arrangements are reviewed at least annually and that procurements are effectively planned where appropriate.
Recommendation
The schedule of contracts now in place should be presented to Governors Finance Committee on at least an annual basis to evidence review of contractual arrangements and provide assurance to Governors of effective procurement planning.
Agreed Action 3.1
A review is to be completed of current contract records and associated review and renewal dates. The contract schedule, including details of proposed action should the contract renewal in the current financial year, will then be presented to the Governors Finance Committee. This schedule will be presented annually at the start of each financial year or the first Finance Governors Meeting of the financial year.
| Priority | 3 | |----------|---| | Responsible Officer | Business Manager & Head of Support Services | | Timescale | 30 April 2017 |
### 4 Procurement
| Issue/Control Weakness | Risk | |------------------------|------| | A contract had been let without a procurement exercise being completed by the school. | Failure to comply with the Council’s Financial Regulations and Contract Rules. |
#### Findings
Significant purchases from suppliers or contractors were reviewed to ensure procurement procedures were in compliance with the Council’s Financial Regulations and Contract Rules. All appeared compliant with the exception of the purchase of a new Finance System (total cost in the region of 13.5K) which had used the procurement exercise completed by another school to make the procurement decision. The school had not obtained a waiver from Financial Regulations in order for this to proceed.
#### Recommendation
All purchases in excess of £5K should be subject to a quotation or tendering exercise in accordance with the Council’s Contract Rules. If the school proposes not to complete this exercise, the reasons should be notified to the Council as part of an official waiver application. An approved waiver from Financial Regulations should be obtained prior to awarding the contract.
#### Agreed Action 4.1
On a routine basis all procurement is in accordance with City of York Council’s Financial Regulations and Contract Rules. At every Finance Governor Meeting, assurance is given that the correct processes have been followed.
The use of another schools procurement process for the purchase of the new Finance system was agreed by the Head and disclosed to the Governors who agreed that it was an efficient practice and no objections were made. Should this happen again the school will apply for a CYC waiver.
| Priority | Responsible Officer | Timescale | |----------|---------------------|-----------| | 3 | Business Manager & Head of Support Services | Complete |
### 5 VAT
| Issue/Control Weakness | Risk | |------------------------|------| | On occasions VAT had been reclaimed for on-line purchases when a VAT receipt or VAT invoice had not been obtained. | Penalties may be levied by H M Revenue & Customs for failure to account correctly for VAT. |
#### Findings
Testing of purchases made using the schools purchasing card highlighted that on occasions, the VAT element of the purchase had been reclaimed without a VAT receipt or VAT invoice being obtained. The cases identified related to on-line purchases.
#### Recommendation
A VAT receipt or VAT invoice must be in place before VAT is reclaimed for expenditure at the school.
#### Agreed Action 5.1
The school will ensure that all VAT reimbursements are supported by valid VAT invoices or receipts which have been checked to ensure they record all the required details.
| Priority | Responsible Officer | Timescale | |----------|---------------------|-----------| | 3 | Business Manager & Head of Support Services | Complete |
### 6 Cheque Log
| Issue/Control Weakness | Risk | |------------------------|------| | The school uses pre-printed stationery to print cheques but does not maintain a cheque control log. | Cheques may not be fully accounted for. Unauthorised payments may be made. |
#### Findings
When a cheque run is completed there is currently no evidence of independent confirmation that all cheques have been accounted for in sequence from the last cheque run.
#### Recommendation
It is recommended that a cheque log is completed for each cheque run, recording the date of the run, the first and last cheque number, the number of cheques used and any cancelled or spoilt cheques (which should be marked cancelled and retained). This should be signed by the officer completing the cheque run and a verifying officer after confirming all cheques are accounted for. A pro-forma cheque log has been sent to the school.
#### Agreed Action 6.1
A record of cheques was being retained, however a process is now in place whereby a strict log is kept which is checked and signed by the SLT cheque signatory to evidence that all cheques have been accounted for.
| Priority | Responsible Officer | Timescale | |----------|---------------------|-----------| | 3 | Business Manager & Head of Support Services | Complete | 7 Financial Management
| Issue/Control Weakness | Risk | |---------------------------------------------------------------------------------------|----------------------------------------------------------------------| | The financial monitoring report presented to Governors is compiled by extracting data from the finance system. As such, errors may occur in the figures presented to Governors. Additionally some issues relating to the information presented are discussed by e-mail prior to the meeting and this may not be recorded in the Committee minutes. | Financial decisions may be based on incorrect data and may adversely affect the budgetary position at the school. |
Findings
Budget monitoring reports are currently being produced in a format preferred by the Governors rather than directly from the Finance System. It was confirmed that the start budget and revised budget had been correctly entered onto the reports presented to Governors. Actual income and expenditure recorded on the Governors monitoring reports appeared to be reasonable compared to that recorded on the Finance System but could not be easily matched unless a report is produced at the time of transfer. It was noted that at the time of the audit there appeared to be some minor discrepancies in the budgets recorded on the finance system compared to the Governor approved budgets.
The school continues to raise manual orders rather than using the Civica Purchasing electronic ordering system. Commitments at the school are therefore not recorded. It is understood that a new Finance and purchasing system has been procured and will be implemented shortly which should address this issue.
It was advised by the School Business Manger that after committee papers have been sent out, but prior to the Finance Committee meetings, a number of queries relating to the financial monitoring may be raised by committee members and resolved by e-mail. These are not recorded in the minutes or necessarily made available to all committee members. The minutes of the meeting and associated papers may therefore not be a full record of discussions taking place.
Recommendation
If Governors continue to require monitoring reports produced by manual extraction of balances from the Finance System it is recommended that a monitoring report produced directly from the Finance System is included in the committee papers to confirm that balances have been accurately transferred.
It is recommended that any issues addressed via e-mail prior to a Finance Committee meeting being held are referred to in the minutes and copies of the relevant e-mails made available to all committee members. | Agreed Action 7.1 | |-------------------| | It is acknowledged that it would provide the Governors with an extra level of confidence to ensure that any monitoring reports produced by the Finance Team match the data our finance system holds. | | For the last two meetings, any pre-meeting discussions between a Governor and the School about the finance data have been copied to all Finance Governors and the Clerk to the Governors for these discussions to be added to the overall minute records. |
| Priority | 3 | |----------|---| | Responsible Officer | Business Manager & Head of Support Services | | Timescale | 31 March 2017 | 8 Inventory
| Issue/Control Weakness | Risk | |------------------------|------| | There is no control in place to ensure that inventory records for all departments are independently checked on an annual basis. Paper records are not held in a fire and flood proof location. | Items which have been lost or misappropriated may not be identified and investigated. |
Findings
Each department maintains their own inventory record. There is no central record maintained to confirm that an independent check of the inventory records has been completed.
Some inventory records are in a paper format. These are not being held in a fire or flood proof location.
Recommendation
Departmental inventory records should be checked annually by an officer independent of maintaining the record. It is suggested that departments are reminded to complete this check and a central record maintained recording the date of the check and the name of the checking officer. For electronic inventory records an electronic copy of the last verified inventory should be retained or the main inventory record annotated to evidence the check. If a targeted check only has been completed eg of particular equipment or higher value items this should be highlighted on the record.
Inventory records which are maintained in a paper format should be held in a fire and flood proof location. It is suggested that these are held centrally.
Agreed Action 8.1
A procedure has been agreed whereby departmental inventories will be submitted annually for a central independent check. The check will be evidenced and the results reported to Governors.
The inventory records will be held electronically for safety.
| Priority | 3 | |----------|---| | Responsible Officer | Business Manager & Head of Support Services | | Timescale | 30 April 2017 | Audit Opinions and Priorities for Actions
Audit Opinions
Audit work is based on sampling transactions to test the operation of systems. It cannot guarantee the elimination of fraud or error. Our opinion is based on the risks we identify at the time of the audit.
Our overall audit opinion is based on 5 grades of opinion, as set out below.
| Opinion | Assessment of internal control | |--------------------|------------------------------------------------------------------------------------------------| | High Assurance | Overall, very good management of risk. An effective control environment appears to be in operation. | | Substantial Assurance | Overall, good management of risk with few weaknesses identified. An effective control environment is in operation but there is scope for further improvement in the areas identified. | | Reasonable Assurance | Overall, satisfactory management of risk with a number of weaknesses identified. An acceptable control environment is in operation but there are a number of improvements that could be made. | | Limited Assurance | Overall, poor management of risk with significant control weaknesses in key areas and major improvements required before an effective control environment will be in operation. | | No Assurance | Overall, there is a fundamental failure in control and risks are not being effectively managed. A number of key areas require substantial improvement to protect the system from error and abuse. |
Priorities for Actions
| Priority | Description | |----------|-----------------------------------------------------------------------------| | Priority 1 | A fundamental system weakness, which presents unacceptable risk to the system objectives and requires urgent attention by management. | | Priority 2 | A significant system weakness, whose impact or frequency presents risks to the system objectives, which needs to be addressed by management. | | Priority 3 | The system objectives are not exposed to significant risk, but the issue merits attention by management. | Where information resulting from audit work is made public or is provided to a third party by the client or by Veritau then this must be done on the understanding that any third party will rely on the information at its own risk. Veritau will not owe a duty of care or assume any responsibility towards anyone other than the client in relation to the information supplied. Equally, no third party may assert any rights or bring any claims against Veritau in connection with the information. Where information is provided to a named third party, the third party will keep the information confidential.
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27aefd941e71cbe4585c6601ed9cd0b503935807 | Allergen guidance for food businesses
Guidance for food businesses on providing allergen information and best practice for handling allergens.
Food business operators in the retail and catering sector are required to provide allergen information and follow labelling rules as set out in food law.
This means that food business operators must:
- provide allergen information to the consumer for both prepacked and non-prepacked food and drink
- handle and manage food allergens effectively in food preparation.
Food businesses must make sure that staff receive training on allergens. Staff can complete our free food allergy training. Managers can also share our allergen checklist with staff for tips on food allergy best-practice.
We have separate guidance for food manufacturers and institutional caterers.
14 allergens
Food businesses need to tell customers if any food they provide contain any of the listed allergens as an ingredient.
Consumers may be allergic or have intolerance to other ingredients, but only the 14 allergens are required to be declared as allergens by food law.
The 14 allergens are: celery, cereals containing gluten (such as barley and oats), crustaceans (such as prawns, crabs and lobsters), eggs, fish, lupin, milk, molluscs (such as mussels and oysters), mustard, peanuts, sesame, soybeans, sulphur dioxide and sulphites (if they are at a concentration of more than ten parts per million) and tree nuts (such as almonds, hazelnuts, walnuts, brazil nuts, cashews, pecans, pistachios and macadamia nuts).
This also applies to additives, processing aids and any other substances which are present in the final product.
Allergen labelling for different types of food
There are a number of ways in which allergen information can be provided to your customers. You will need to choose the method which is best for your business and the type of food you serve.
Prepacked foods refer to any food put into packaging before being placed on sale, while non-prepacked food (loose food) is unpackaged food. Different allergen labelling rules apply depending on how the food is provided.
Our technical guidance provides a detailed explanation of the labelling requirements for each Prepacked
Prepacked products refer to any food put into packaging before being placed on sale. Food is prepacked when it:
- is either fully or partly enclosed by the packaging
- cannot be altered without opening or changing the packaging
- is ready for sale.
Prepacked food must have an ingredients list present on the packaging. Allergens present in the product must be emphasised each time they appear in the ingredients list.
**Prepacked for direct sale**
Prepacked for direct sale products are foods that have been packed on the same premises from which they are being sold.
Common foods that can fall into this category include sandwiches, salads and pies made and sold from the premises in which they are made. It is expected that the customer is able to speak with the person who made or packed the product to ask about ingredients.
Currently, allergen information can be provided in the same way as for non-prepacked (loose) foods.
From October 2021, the way food businesses must provide allergen labelling information for Prepacked for Direct Sale (PPDS) will change. Foods will need to have a label with a full ingredients list with allergenic ingredients emphasised within it.
These changes will provide essential information to help people with a food allergy or intolerance make safe food choices.
**Non-prepacked (loose) foods**
If you provide non-prepacked foods, you must supply allergen information for every item that contains any of the 14 allergens.
- Non-prepacked (loose) foods include:
- foods sold loose in retail outlets
- foods which are not sold prepacked.
Non-prepacked allergen information requirements can apply to loose items sold at a delicatessen counter, a bakery, a butcher’s, as well as meals served in a restaurant, and food from a takeaway.
**Free-from, gluten-free and vegan claims**
Making free-from claims for foods requires strict controls of ingredients, how they are handled and how they are prepared. A free-from claim is a guarantee that the food is suitable for all with an allergy or intolerance.
For example, if you are handling wheat flour in a kitchen and you cannot remove the risk of cross-contamination through segregation by time and space, you should let the customer know. You should not make any gluten-free or wheat-free claims.
The Food and Drink Federation provides specific information and guidance on free-from and gluten-free claims.
Customers sometimes assume that vegan meals are free-from animal based allergens (egg, fish, crustaceans, molluscs, milk). This is not always the case as low-level cross-contamination from these ingredients can occur during the production process. You need to be clear about this risk in the food you provide.
The Food and Drink Federation provides specific information and guidance on allergen-free and vegan claims. Allergen information for different types of food businesses
How you provide allergen information to customers will depend on the type of food business. Food business staff can learn more about providing allergen information by completing our free food allergy training and by using our allergen checklist.
Food businesses
You must provide allergen information in writing if you sell or provide food to your customers directly. This could be either:
- full allergen information on a menu, chalkboard or in an information pack
- a written notice placed in a clearly visible position explaining how your customers can obtain this information
When allergen information is provided as part of a conversation with a customer, this can be backed up by written information. This would ensure that it is accurate and consistent.
You can display this allergy and intolerance sign to tell customers how they can find allergy information, or create your own.
Buffets
If you offer food in the form of a buffet, you need to provide allergen information for each food item separately. You should not provide it for the buffet as a whole.
You can provide this information by labelling the allergens contained in individual dishes, or by displaying a sign directing customers to ask staff for allergen information.
This information must be visible, clearly legible and easily accessible to the customer.
Food delivery and takeaway food
If food is sold online or by phone through distance selling, allergen information must be provided at two stages in the order process.
You must provide allergen information:
- before the purchase of the food is completed - this can be in writing (on a website, catalogue or menu) or orally (by phone)
- when the food is delivered - this can be in writing (allergen stickers on food or an enclosed copy of a menu) or orally (by phone).
Allergen information should be available to a customer in written form at a point between a customer placing the order and taking delivery of it.
Takeaway meals should be labelled clearly so customers know which dishes are suitable for those with an allergy.
Allergen requirements and best-practice for food businesses It is important to manage allergens effectively in your food business to ensure food is safe for customers with food allergies.
This involves including allergen information when menu planning and having good food preparation and hygiene practices in place to avoid cross-contamination in your kitchen.
Detailed guidance on how to manage allergens in the kitchen can be found in our Safer food, better business information packs for caterers.
We provide free food allergy training on best practice for managing allergens. You can also share our allergen checklist with staff.
**Allergen ingredient recording**
You need to make sure that you know what is in the food you provide. You can do this by recording allergen ingredient information in a written format. Allergen ingredients information should be:
- recorded on product specification sheets
- included on ingredients labels and ingredients should be kept in original or labelled containers
- included in recipes or explanations of the dishes provided – you need to consider the impact when recipes change
- up to date.
We have allergen ingredient templates and other training resources which may be useful in allergen planning your menu.
**Avoiding allergen cross-contamination**
It is important for food businesses to take steps to avoid cross-contamination in food preparation to protect customers with a food allergy.
There are a number of actions you can take to prevent cross-contamination with allergens. These include:
- cleaning utensils before each usage, especially if they were used to prepare meals containing allergens
- washing hands thoroughly between preparing dishes with and without certain allergens
- storing ingredients and prepared foods separately in closed and labelled containers
- keeping ingredients that contain allergens separate from other ingredients
- Allergen cross-contamination can also happen through using the same cooking oil. To cook gluten-free chips, you can’t use the same oil which has been previously used for cooking battered fish.
If you can’t avoid cross-contamination in food preparation, you should inform customers that you can’t provide an allergen-free dish.
The Food and Drink Federation provides specific information and guidance on free-from and gluten-free claims.
**Enforcement and penalties** Apart from the possibility of making a customer seriously ill, you could also face the risk of financial and reputational damage to your food business if you fail to comply with allergen information requirements. Local authorities enforce allergen information regulations. Failure to comply can result in action from the local authority.
If you fail to act on advice given by the local authority, an improvement notice may be issued. If you do not meet the requirements of this notice, you will be issued with a penalty.
You have 14 days to appeal an improvement notice from the date the notice was issued. In some cases businesses may also face prosecution.
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d7079166eab130a850cd28a52b16fce712411655 | Embedding of research into decision-making processes
Adam D Koon, Devaki Nambiar, Krishna D Rao
Background paper commissioned by the Alliance for Health Policy and Systems Research to develop the WHO Health Systems Research Strategy
# Table of Contents
1. Introduction 1 1.1 Overview 1 1.2 Objectives 1
2. Methods 2 2.1 Literature Review 2 2.2 Key-informant Interviews 2
3. Embeddedness & Health Research 4 3.1. Research Embeddedness through the lens of health systems building blocks 5 3.2 Conceptual framework for embeddedness in health research 9 3.3 Empirical examples of embeddedness in health research 12
4. Conclusion 17
Works Cited 19
Appendix 1: Interview Guide 22
Appendix 2: Key Informants 24
1. Introduction
1.1 Overview As health systems have become more complex and public demands for accountability have increased, the salience of overall health system performance for better services and health outcomes has grown. The current international emphasis on evaluating performance has positioned health systems research as an important vehicle for promoting evidence-based policy making. In turn, this emphasis has also encouraged health systems research to become relevant to policy making.
The divide between research and policy is substantial in many low and middle-income countries (LMIC). Both supply and demand factors are responsible for this. On the supply side, the limited local pool of human and financial resources has constrained the production of quality research. The result is that many LMICs are characterized by limited institutional capacity to generate research to aid policy making. On the other hand, avenues for research to influence policy are severely limited. One reason for this is the bureaucratization of policy making, in which, researchers and research institutions have only a minor role. Other common obstacles in this regard are centralized decision making and a policy making culture that gives little importance to evidence based research.
1.2 Objectives This study is concerned with the uptake of research evidence in policy decisions for health and the factors which are conducive for this. Specifically, this study seeks to:
(a) Present a conceptual understanding of institutional embeddedness and apply it to the context of research in policy making in health. Further, through a review of the literature, document the institutional arrangements that facilitate the embedding of research use in the policy-making domain.
(b) Present country case studies to illustrate the embeddedness of research use in policy-making and the contextual and institutional factors that create enabling conditions for it.
We examine these questions from the perspective of the six WHO building blocks – service delivery, health workforce, information, medical products, financing and governance. Information is sourced from the existing literature and from country case studies. 2. Methods
2.1 Literature Review
Literature from various disciplines was sourced to develop the idea of embeddedness of research institutions in policy-making for health. We conducted a thorough review of the literature pertaining to the decision making process in health policy, processes of knowledge translation, the generation of research for practical applications in health, and the institutional arrangements that affect these processes. There is also a substantial literature around barriers and facilitators to research utilization in health policy (1-6). The following electronic databases were searched in December 2011: PubMed-Medline (up to December 2011); EBSCO Global Health and Global Health Archive (up to December 2011). Additionally, Google and Google Scholar search engines were used to identify sources not included in the electronic databases. We also attempted to harness evidence from reports, book chapters, and government documents in addition to the peer-reviewed literature. Search terms included a combination of “policy-makers”, “decision makers”, “evidence-based policy”, “evidence-based policy-making”, “policy process”, “research to policy”, “data sources”, “embeddedness”, “embedded research”, “social embeddedness”, “developing countries”, and “Low and Middle Income Countries”. Lastly, we relied on references cited in relevant studies.
2.2 Key-informant Interviews
The idea of embeddedness of research was further explored through key informant interviews drawing on decision makers and researchers from India, Mexico, Thailand, Iran, Lebanon, Nigeria, and Cameroon. This data allowed us to empirically reflect upon our conceptual model of embeddedness and examine how research operates in country-specific contexts. Potential key informants were identified and contacted by collaborators at the Alliance for Health Policy and Systems Research at the World Health Organisation. The criteria for selection were purposive: informants were to be either high-ranking researchers or national level policymakers or were both, they were to be from countries that are recognized in the literature as having linkages between decision making and evidence (as in Iran, Mexico or Thailand), or where such systems have been created in certain domains of health (as in India and Nigeria). Appendix 2 is a listing of informants contacted and interviewed.
Questionnaire development
Interview questions were developed initially based on a conceptual model of institutional embeddedness that drew from an extensive review of the literature. They were further refined on the basis of discussions and consultations with experts in health policy and systems research in India and abroad to establish credibility. Two iterative versions of the interview guide were piloted with health decision makers in India to arrive at a revised instrument focusing on five major questions (apart from some information on the designation and duration of informants’ work in health). The guide was structured around four a priori themes used as anchor-points for country case studies on characteristics or processes typifying institutional embeddedness of evidence in decision making: quantity of relationships, the quality of relationships, the capacity to generate quality health systems research, and the reputation of evidence-generating institutions. Data collection
Once key informants were selected and initial contact was made, phone or in-person interviews were scheduled by researchers from the Public Health Foundation of India. In most cases (N=10), interviews were conducted on the phone. While some personal informant details (such as designation and institution) were recorded, no names were recorded. Instead, codes were used for informants, designating country, whether health researcher, policymaker or both, and the date. The interviews began with a verbal informed consent process and request to record the interview lasting no less than 40 minutes and no more than 1 hour, depending on the level of detail offered by informants. Within 48 hours of each interview, interview notes were transcribed with consultation of recordings when available and uploaded onto a secure site. Twelve key informant interviews were conducted between February 14th and March 15th 2012 (Figure 1).
Figure 1 | Data collection and sampling
Qualitative analysis
Ritchie and Spencer’s (60) framework approach for analysis was used. In this methodology, a number of a priori themes were generated based on prior research and the literature. Interviews perused repeatedly by two researchers and coded with these themes in mind, and also with attention to data that did not relate to these themes, on the basis of which, de novo themes were also added. For the most part, each research question corresponded to dimension of analysis; however, the third research question, pertaining to examples of health policy-making, was used to elucidate examples of enablers of embeddedness and challenges to it.
Ethical approval for human subjects research
IRB approval was sought from the Public Health Foundation of India Institutional Ethical Review Board. 3. Embeddedness & Health Research
The term "embeddedness" has a long history in the social sciences. The origins of the concept can be traced to the work of Karl Polanyi, who, in 1957, wrote that "the human economy...is embedded and enmeshed in institutions, economic and non-economic. The inclusion of the non-economic is vital."(7) This idea of embeddedness, or "social embeddedness", as it is often referred to, represents an organization's/individual's connection, relationship, and/or position, within a social network (8). The term is also associated with the idea of social capital that gained credence in the early 1990's (9). Nevertheless, embeddedness assumes many forms, as manifest by its assorted use in sociology, anthropology, political science, public administration, and economics. It has been used to describe electronic social networks (10), engagement of immigrants in politics (11), consumption trends in the agricultural sector (12), as well as the performance of various health agencies in the public sector (13, 14).
According to Provan et al., the degree of embeddedness of an organization refers to its structural position in an organizational network (15). The greater its embeddedness or centrality in an organizational network, the greater is its connectivity with other organizations in the network and more immersed the organization is in the flow of information and resources than non-central organizations. The authors found that embedded organizations have several desirable qualities. For one they are more influential. Influence, in this case, has to do with an embedded organization's stance, recommendations, or actions being taken into consideration when other organizations within the network make important decisions. Embedded organizations also have greater trustworthiness and reputation. Organizations that reliably deliver on their commitments to other actors in the web of exchanges are said to be trustworthy. Similarly, organizations that are perceived to be performing at a high level and producing quality outputs for others within its domain are said to have a strong reputation. These qualities may in part account for an embedded organization's ability to wield power within and outside the network (16). Another important characteristic is that embedded organizations also increase the performance of the network as a whole. Further, through empirical research, they found that these five qualities of organizational embeddedness tend to strengthen as the network matures.
Similar network analytical methods to those used by Provan et al. have been used to assess a variety of topics, including the embeddedness of political top executives (17), two mental health networks (18), the effects of informal collaboration (19), urban governance (20), and as a platform to call for more research into networks funded by the public sector (21). Recently, this type of research was also identified in a systematic review of public administration research applicable to the public health domain (22). To the best of our knowledge, this methodology has not been used in assessing the embeddedness of health research institutions or any type of institutional arrangement in LMICs. 3.1. Research Embeddedness through the lens of health systems building blocks
In this section we examine the idea of embeddedness of research use in decision making in the health sector. Because health systems are characterized by a diversity of institutions and activities, the information collated from the literature is organized according to the six building blocks described in the World Health Organization’s Health Systems Framework (Figure 1) (23). Through a global survey of the literature we have identified various knowledge-translation pathways and institutional embeddedness with respect to service delivery, health workforce, information, medical products (drugs, vaccines, and devices), financing, and leadership/governance. While we feel that there is sufficient evidence to warrant this type of classification, there is some degree of overlap with several studies. For example, adoption of a certain course of treatment for malaria could be included in the medical products, service delivery, or even the governance realm depending on how one approaches the issue. We have, therefore, used our best judgment with the disclaimer that this categorization is by no means absolute. It is also important to note that we are working with a presumption that policy makers use research for making decisions. While this may be true of some countries or some health system building blocks within countries, it is unlikely to be true of all contexts.
Figure 1 | The WHO Health Systems Framework
THE WHO HEALTH SYSTEM FRAMEWORK
THE SIX BUILDING BLOCKS OF A HEALTH SYSTEM: AIMS AND DESIRABLE ATTRIBUTES
- Good health services are those which deliver effective, safe, quality personal and non-personal health interventions to those who need them, when and where needed, with minimum waste of resources.
- A well-performing health workforce is one which works in ways that are responsive, fair and efficient to achieve the best health outcomes possible, given available resources and circumstances. It is there are sufficient numbers and mix of staff, fairly distributed; they are competent, responsive and productive.
- A well-functioning health information system is one that ensures the production, analysis, dissemination and use of reliable and timely information on health determinants, health systems performance and health status.
- A well-functioning health system ensures equitable access to essential medical products, vaccines and technologies of assured quality, safety, efficacy and cost-effectiveness, and their scientifically sound and cost-effective use.
- A good health financing system raises adequate funds for health, in ways that ensure people can use needed services, and are protected from financial catastrophe or impoverishment associated with having to pay for them.
- Leadership and governance involves ensuring strategic policy frameworks exist and are combined with effective oversight, coalition building, the provision of appropriate regulations and incentives, attention to system design, and accountability.
Source: WHO. Everybody’s business: strengthening health systems to improve health outcomes: WHO’s framework for action. Geneva; 2007. Service Delivery Several studies have examined the diverse group of actors involved in decision making around service delivery. These studies indicate important differences in who informs the process by which health services are delivered. The influence of lobby groups, champions and the roles of national, regional and international research and policy networks were paramount in inserting research into the policy process for health care delivery in Mozambique, South Africa, and Zimbabwe (24). Research to inform planning of various service delivery mechanisms can also come from outside the MoH. For example, this happened at the district level in Kenya and at the federal level in Mexico (25, 26). Within the service delivery block, a great deal of research-informed policy focuses on vertical programs. This particular type of research tends to draw from a number of different sources, each representing their own degree of embeddedness. In Uganda, for example, international advisory groups, academics, NGOs, and other peripheral organizations generated disease-specific research which policy-makers used to base their decisions about malaria treatment, antiretroviral therapy, prevention of mother to child transmission of AIDS (PMTCT), integrated management of childhood illnesses (IMCI), tuberculosis treatment, and safe male circumcision (27). The arrangement of these actors in Uganda will be depicted later in Figure 2. Unlike Uganda, Peru used a very small set of external actors to evaluate research generated from highly embedded federal research bodies in reforming malaria treatment policy (see box 1) (28). The role of health organizations within the health system is also not restricted to and can sometimes conflict with, research. Consider Thailand where, despite the fact that research from a highly embedded organization indicated that scaling-up antiretroviral therapy was not a wise course of action, a powerful policy network of non-state (NGO and civil society) actors emerged and successfully lobbied for the program to be implemented (29). Several other important factors were responsible for launching this policy; however, this example illustrates some of the complexities encountered during the process of crafting health policy in low and middle income countries.
Medical Products (Vaccines, drugs, medical devices, etc.) Of the six building blocks, the medical products block is probably the best representation of the different pathways through which research can flow directly into policy. It is also populated by an interesting set of moderate to highly embedded research organizations. Box 2 further illustrates this idea for health technology in Asia (30, 31). Similarly, vaccine policy is interesting for several reasons. First, several different types of evidence, in addition to burden of disease, are frequently used to inform the debate. Second, many countries have Immunization Technical Advisory Groups for vaccine policy. These vary in composition but usually consist of MoH staff, scientists, and other experts in the field (32). Third, donors and technical agencies (such as WHO, GAVI, and UNICEF) have a strong influence over LMIC country decision in particular. In fact, in some countries, policy-makers have indicated that some of the principal sources of evidence are often WHO guidelines or position papers (33).
The literature on Essential Medicines or National Drug Policies suggests that the pathway from research to policy is similar to that of vaccines. Like vaccine policy, in Mali and Laos, national commissions, composed of an intersectoral set of experts, inform drug policy. In Mali, researchers used evidence from the peer-reviewed literature, technical reports from international organizations, and other country experiences (34). In Laos, it appears as though little research has historically been used by policy-makers, despite the efforts of highly embedded health research bodies within the country (35). In fact, in both Mali and Laos, policy-makers indicated that other concerns were given equal, and sometimes more, weight than scientific evidence.
Information
Of the six health system building blocks that guided our analytical framework, Information, or health information systems, appears to be one of the most underdeveloped in LMICs. There is very little evidence on the pathways by which other country experiences, technical assistance, or research within the MoH influences the policy process. In Sri Lanka, Hornby and Perera described the challenge of developing process indicators and installing performance management strategies without health information systems or research from other countries to aid their efforts (36). In Tanzania, the government has benefitted from costing analyses generated by external international researchers in order to inform their experimentation with health information system technology (37). Gething et al. draw attention to Kenyan efforts to develop an effective health information system and the authors present statistical techniques to compensate for imperfect national data, which is a major barrier to evidence-based decision making in Kenya (38). One positive sign of ways in which peripheral international actors can assist with building up information infrastructure is the Integrated Disease Surveillance and Response program initiated by WHO (39). Some countries, have even used certain aspects of this to form their own Integrated Disease Surveillance Units within the Ministry of Health (40). In summary, the literature suggests that for many low income countries, there exists a greater need to develop basic data collection facilities and workforce so as to lay the foundation for a comprehensive and embedded health management information system.
Health Workforce
In general, there is scant evidence of the pathways through which policy-makers typically source research to inform health workforce policy. This may be due to the fact that the health workforce was, until recently, seen largely as an administrative issue of recruitment, cadre establishment and training, transfers and postings. This inward and bureaucratic approach to human resource issues precluded research and international experience from permeating policy making. Secondly, till recently, this area did not receive much attention by researchers. Actually, contemporary research into human resources for health is quite recent. The Joint Learning Initiative’s 2004 report on “Human Resources for Health: Overcoming the Crisis ” and WHO’s 2006 World Health Report “Working Together for Health,” drew attention to the global crisis (41, 42). Systematic reviews have given policy-makers a clearer idea of what policy options exist, but we are just beginning to understand how various practices influence health worker retention in rural areas, curb the flow of qualified health personnel across borders and sectors, harness the potential of task shifting, and improve health worker performance (43). Not only are the results of basic strategies poorly understood across countries, but policy-makers often lack basic statistics about the size, composition, and distribution of health workers within their own countries (44). This highlights the need for stronger Health Management Information Systems in country health systems as well as identifying strategic entry points for external technical assistance in the interim. The WHO has also
Box 2: Health Technology in Asia
Two studies from Asia describe the sources as well as the users of evidence in crafting policy around drugs, medical devices, and diagnostics (30, 31). In India, Pakistan, Malaysia, Philippines, Thailand, South Korea, and Taiwan, researchers have described large federal bodies responsible for the production of evidence to support policy decisions. This may or may not fall under the purview of the Ministry of Health. According to the authors, one institution may govern the entire research production and utilization process in some countries. In others, this is not the case. For example, Taiwan produces evidence to inform market approval of drugs and medical devices from 7 different government bodies, only three of which actually use the information. In all 7 countries mentioned above, legal frameworks are in place to regulate the flow of information from research to policy for medical technology. attempted to facilitate this process through publication of guidelines such as those issued in the 2010 report, “Increasing Access to Health Workers in Remote and Rural Areas Through Retension.” (45) While there is increasingly an acknowledgement by the international community to develop an urgent response to the health workforce crisis, there are very few examples, at the country level of evidence-based health workforce policy. Two notable exceptions to this are represented by Mali and Ghana who have both relied on the technical advice of external international actors to incite health workforce planning initiatives (46, 47).
Financing In the financing realm, policy is often guided by evidence in the form of technical advisory groups, assistance from research institutions, or high-level task forces. For example, in the mid-90’s, South Africa and Zambia, both embarked on ambitious financing reform in the health sector (48). To guide the process of reform, several working groups were created. Though they provided consistent input, the extent to which both reform efforts centered around research was largely a result of the interaction of the working groups with several other, in some cases, more powerful actors in the political realm (49). Similarly, in Ghana the government’s national healthcare insurance scheme was nearly derailed by the presence of political elites forcing out technical experts. Though the scheme was eventually rolled out, technical experts were only brought back in to inform the process after political transition in which the political elites were replaced (50). In contrast, a highly embedded research institute in Thailand was the guiding force behind an ambitious national health insurance scheme during national elections in 2001. This publicly-funded, autonomous research institution was created in 1991 with the mandate of providing policy-relevant health systems research. Though it operates largely outside of the ministry of health, the health minister chairs the institute’s governing board. Thus, Thailand’s successful insurance scheme can be attributable to an investment in human resources for health research, which started 10 years prior to the actual reform measure, was maintained by regular input with key policy-makers in the ministry of health, and involved several other external actors to force the issue onto the policy agenda during a key time of political transition (51). As we can see from the examples above, the complicated nature of financing in healthcare necessitates the technical input of various experts. This may take the form of an intersectoral working group, technical advisory committee, or embedded research institution. The very structure of this technical assistance and the way it interacts with larger socio-political forces often plays a substantial role in the execution of successful policy initiatives.
Governance / Leadership With the exception of Mexico and Thailand (51-53) (see box 3), there are few examples of strong linkages between evidence and policy to inform health sector governance. Between 2001 and 2006 a government program in the Indian state of Karnataka was established for the sole purpose of fighting generalized poor governance and systemic corruption (54). While this is a specific example of an evidence-gathering mechanism aimed directly at improving governance, other research into drafting and launching national health plans describes less direct pathways by which research informs governance/leadership practices. In Vietnam, peripheral actors helped to facilitate the creation of national mental health
Box 3: Mexico and Thailand Lead In the early 2000’s, Mexican policy-makers drew from multiple sources, namely international academic institutions, free-standing publicly-funded institutions, and evidence generated from within the Ministry of Health to guide the process of comprehensive healthcare reform (25, 52). Similar to Thailand, Mexico installed a national health insurance scheme to curb regressive out-of-pocket expenditures in healthcare. Also, both Mexico and Thailand relied heavily on research institutions that were created with a public mandate nearly 20s prior to embarking on reform (51,52). Furthermore, both institutions enjoy direct contact with the Ministers of Health on a regular basis (53). Thus, two of the most widely cited examples of effective healthcare reform initiatives have utilized research generated from highly embedded research organizations. In addition to this, both examples explicitly relied on legislative frameworks to direct the process (51,52). policy (55). This was also true in adopting a mental health plan in Solomon Islands; however, there the process seems to have been more enthusiastically supported by key policy-makers and buttressed with embedded research (56). In another conflict-affected fragile state, East Timor, the fledgling government began an arduous process of reconstructing the national health system. This involved commissioning research from peripheral actors and transferring stewardship responsibility from humanitarian aid organizations to the expanding national government (57). This underscores the unique circumstances some countries find themselves in prior to the development of functional institutional arrangements. Until more research is conducted in the governance/stewardship block, it remains unclear what role embedded research organizations can play in establishing knowledge streams for policy.
3.2 Conceptual framework for embeddedness in health research
The available evidence from the literature presented in the previous section indicates that, when evidence is used for decision making, policy-makers rely on evidence from a variety of sources. Several historical, sociological, and political forces have converged to create the context-specific pathways through which research enters into the policymaking environment. These pathways are mediated by institutional arrangements that influence the interaction between policy-makers and producers of research - research divisions or expert committees within the MoH, publicly-funded external institutions, and/or an increasingly complex array of privately-financed external institutions. Depending upon the policy under consideration, MoHs may call upon an intricate combination of actors within this configuration. For example, in some countries policy-makers convene a task force composed of researchers prior to undertaking a major policy endeavor, like formulating a national drug policy. Indeed, the institutional arrangements through which health research can be sourced for policy making can be very complex, as in Tanzania’s case depicted in Figure 2 (58).
Figure 2 | Health Research Architecture in Tanzania
Source: COHRED. Tanzania: An Assessment of the Health Research System: Council on Health Research for Development; 2009 The institutional arrangements for producing research across countries can be conceptualized through a generic framework as depicted in Figure 3. Here, the different agents that produce research have been placed in concentric circles with ‘Decision makers’ at the core. The idea is to situate research-producing institutions in relative proximity to those making health policy decisions. So the innermost ring consists of government organizations such as special committees, research units, regulatory bodies. The next circle consists of government-supported research institutions such as agencies, universities, think-tanks and individuals who are funded by government but not directly part of it. The outer most circle consists of independent research institutions which are privately funded and managed like those belonging to multi-lateral and bi-lateral agencies, private universities, NGOs, and research consortia.
While proximity to decision makers or government could increase the embeddedness of research institutions, it is not necessarily the case. Through the diagram on the right in Figure 3 we attempt to marry the dimensions or attributes of embedded institutions in a network (discussed earlier) with the generic framework of research institutions (shown on the left of Figure 3). The first two dimensions describe the quantity and quality of institutional connections. If a given organization has several strong linkages to policy-makers then it is more likely to have greater centrality and embeddedness in the network. The ‘quality’ of these connections also matter - an institution that has links with other institutions that have high centrality in the network is also going to possess at least as high a degree of embeddedness (15). We discussed the third enabling factor earlier, when we defined “reputation” as the perception that an organization is producing quality outputs for others within its domain. Reputable organizations and their products, therefore, are much more likely to be embedded and, as such, command the attention of policy-makers. Reputable organization may, however, produce reliable and relevant evidence in only select domains (building blocks). For this reason, we introduce... the fourth dimension of capacity. We hypothesize that institutions that produce policy-relevant evidence within a few given health system building block(s) tend to possess a lower degree of embeddedness than institutions that produce evidence across more or all domains.
We present the environment surrounding decision makers as another important mediator in the flow of evidence to policy, irrespective of the institutional arrangement. For example, legislation can be an effective way of ensuring that research institutions and what they produce, if relevant, is considered by decision makers (like in the case of Mexico). Other enabling factors specific to the policy environment might include, historical precedence of relying on evidence to inform policy, research background of decision makers, a forum for consistently placing decision makers in contact with evidence generators, well-established modes of communicating clearly between actors (policy-briefs, updates, emails, digestible reports, etc.), responsive channels for quickly sourcing evidence, and access to centrally-located evidence generated by embedded institutions, but shared by all actors (4). Thus, in each of these ways, the environment can act as an important mediator, either by hindering or facilitating the uptake of evidence by decision makers.
From Figure 3, the picture that emerges is that there are several dimensions – quantity and quality of connections, reputation and capacity - that cause research institutions and the evidence they produce to be embedded in networks of decision makers or institutions in government. These dimensions can be combined to form an ‘embeddedness continuum’ and institutions can possess high, medium or low embeddedness. A research institution possessing all of these dimensions will have high levels of embeddedness in decision making networks. Similarly, an institution that has none of these dimensions will have no embeddedness. Institutions possessing only a large number of connections or even good quality connections or both or only possessing a good reputation with decision makers can be thought of having low embeddedness. If institutions possess either numerous connections and/or good quality connections together with good reputation, then they could be considered to have medium embeddedness. Finally, the presence of capacity to generate evidence to be used in decision making together with the other three factors can give institutions high embeddedness.
To illustrate the application of such an embeddedness scale, a research unit within the MoH would likely have good quantity and quality of connections to decision makers – however, because of poor reputation for its research products, it might have low embeddedness overall. On the other hand, an NGO that operates on the periphery as an independent international institution, but produces high quality, policy-relevant evidence and has numerous and/or good quality connections with policy makers could be said to exhibit a high degree of embeddedness. Nevertheless, proximity to a decision making core does lend certain advantages to institutions, which allow them to become more embedded. Also, the presence of legislation requiring research to be used in decision making or other environmental factors can serve as facilitators or barriers in the process of research being absorbed by decision makers. In this way, we can see that the mix of actors and environment affects the uptake of research in decision making in a highly contextual manner. 3.3 Empirical examples of embeddedness in health research
We explored the notion of institutional embeddedness through interviews with high-level national researchers. These individuals were asked a series of questions related to embeddedness and institutional arrangements within their countries (Appendix 1 and 2). All questions were open-ended and study participants were encouraged to talk freely and openly about their experience. A great deal of information was generated from this interview; the findings reported here reflect analyses specifically concerning the conceptual model presented earlier (Figure 3).
a) Institutionalizing the use of evidence for policy making
All key informants acknowledged the need for evidence to inform decision making and that the overall trend was in the direction of greater institutional embeddedness of research in this process. In Mexico and Thailand, the turn towards the use of evidence in decision making took place between two to three decades ago, crafted through deliberate institution-building by what our Thai informant (ThaHR011702) dubbed “key champions.” Informants reported that it was not the Ministry of Health that identified research priorities, but rather, autonomous research institutions perform this function (as in Thailand), or that these are contingent on the processes health researchers use to set research priorities (as in Mexico).
In the cases of Lebanon and Iran, the institutionalizing of evidence use for policy making occurred contemporaneous to countries like Mexico and Thailand, but more importantly, as part of post-conflict or post-revolution health systems building. These efforts have been characterized by our Lebanese informant (LebHB012702) as involving “strategic” evidence-generation, accompanied later by “operational” evidence-generation. In these cases, the Ministry of Health played a major role in deciding the health research priorities and in budget topics.
Elsewhere, as in Nigeria and India, policy making for certain vertical programmes has typically relied on the institutionalised use of evidence. For example, in India, there is a National Technical Advisory Group on Immunization is headed by the health secretary and comprises a wide range of outside experts; and, for the country’s HIV response, a parastatal National AIDS Control Organisation exists that has played a critical role in HIV surveillance and intervention research.
b) Linkages between research institutions and decision making: how evidence is sourced
Sourcing of evidence was situational. In some cases it related to “burning policy questions,” and in other cases emanating from routine data collection. However, a key aspect of sourcing research was that it should be relevant to decision makers’ needs. For research to cater to this relevancy, it is important to create opportunities for the development of personal relationships between researchers, research institutions and decision makers to improve information flow.
Evidence published in journals was also a source of information, although it was acknowledged that time constraints on the part of decision makers make this a rarer source of information. As such, the practice of using peer-reviewed literature has not been universally adopted across policy making institutions. More recently in Mexico, the practice of developing policy briefs has emerged to make evidence more relevant to decision makers.
Linkages with national statistics agencies were also common, typically for both the generation and dissemination of population-based data over long periods of time. In the case of Lebanon and India, population-level data is made publicly accessible (i.e. online) and could also be accessed by decision makers. While in most cases statistics agencies made this information available, in some cases, research institutions undertook the task of making information available as well. Academic and/or research institutions were key sources emphasized by several participants. Iran has a unique sourcing model attributable to the fact that the Ministry of Health is also the Ministry of Medical Education. As such, apart from teaching and research, each Iranian university is responsible for the health and health surveillance of a catchment area. Therefore, “if they need data on maternal mortality, for instance, the Ministry [of Health and Medical Education] will approve the requirement of checking data and each university is responsible for its catchment area” (IraHR011202).
Apart from academic institutions, it was common also for expert committees to be convened on a routine or special basis. In some cases, like the National Technical Advisory Group on Immunisation (NTAGI) in India, comprising “outside experts but headed by the health secretary” which “changed [immunization] policy based on evidence” (IndHB012702). Thailand, too, has a Health Policy Advisory Committee that has been created for this purpose across domains. Our Nigerian informant (NiaHR011702) stressed the general need to create a government advisory consortium, of which nascent efforts are underway in the field of immunization.
c) Characteristics of embedded institutions
Quantity and quality of linkages
In our conceptual model, both the quality and quality of linkages between research institutions and decision makers determined the degree of institutional embeddedness (Figure 3). None of the key informants explicitly spoke about the number of linkages as being important for embedding research institutions and their products (i.e. research) in the policy making environment. This could be due to the limited perspective of the network of linkages that our informants had, given that there were few decision makers among them.
Several key informants highlighted the importance of the quality of linkages between research institutions and decision makers for institutional embeddedness. Better quality linkages connects research institutions more directly to decision makers giving the former more centrality in the policy making. According to the key informants, this appears to be determined by research institutions being part of, or closely working with, decision making bodies.
Several informants mentioned that connections made through personal contacts between decision makers and local and international NGOs (involved in research), facilitated the embeddedness of research institutions. Further, possessing multiple memberships facilitated the embeddedness of research institutions. At the individual level, we noted that some of our key informants play the role of both researcher and decision maker in the health arena. For example, in Mexico, “all of the last five ministers of health...were previously researchers...we can say the decision making field is very friendly towards researchers because of this.... and it became common to consider researchers candidates for MoH” (MexHB012002). Therefore, the ability of researchers to enter the political realm of decision making allows for greater embeddedness. However, this appears more of an exception as our Thai informant reported “researchers have no desire to enter into policy-making because it’s not an exciting or rewarding job...but, they have been invited...”(ThaHR011702).
Embeddedness of research institutions in policy making also increased when research institutions played multiple roles. In Iran, for instance, health universities are also responsible for care delivery and routine health monitoring of various areas. This has enabled a recursive feedback loop of policy-relevant data generation, translation into policy decisions, and implementation of policy through service delivery. In India, the National Health Systems Resource Center plays a very active role in designing as well as evaluating national programs. Their unique position in government has made them want to expand this role - “we want to partner university capacity with decision making processes in the Ministry of Health to create a cordial working relationship” (IndHR012102). In many other country settings, research institutions played the dual role of capacity building (by providing higher education) and acted as technical secretariats or agencies for health decision making. In Lebanon, for example, university students were responsible for the field component of large survey projects and actually had practicum opportunities in the health ministry.
Several key informants highlighted the importance of collaborative planning to increase the embeddedness of research institutions. For instance, a very elaborate process of research agenda setting exists in Thailand; every January there is a deliberative process across health departments and research institutes of identifying and prioritizing research needs. Thailand’s nodal Health Policy Research Institute consolidates research priorities from health and civil society agencies and through a day-long discussion examines the state of evidence generation on the topics. It then prioritizes ten top questions, which are subsequently taken up by other research institutes over the course of the following year. Such models are being considered as part of in India’s Twelfth Five year Plan for health.
The quality of linkages is also facilitated by linking key policy-making and research institutions through strategic networks. Apart from linkages to national statistics offices, many ministries of health have developed strategic alliances with other research entities. For example in Lebanon, the Ministry of Public Health does not collect data; rather it engages the Society of the Order of Physicians to gather information on maternal mortality. The goal here is to “do it in a professional way with confidentiality. To improve, not to punish” (LebHR012702). As mentioned previously, the Iranian Ministry of Health and Medical Education integrates policy making with academia. In Thailand, researchers work closely with civil society and the media, ensuring that they have the evidence to help hold politicians accountable. These researchers actually comprise an informal policy network called the Rose Garden Group, which includes many of Thailand’s first wave of rural doctors, and has over the years, propagated several of the country’s major health reforms (ThaHB010803).
Reputation of embedded institutions
In our conceptual model (Figure 3), the reputation of the research institution is a factor in determining its level of embeddedness in the decision making environment. Findings from key informants appear to confirm this – the reputation of the research institution gives its work credibility as does having reputable researchers on committees. For these reasons, decision makers are inclined to associate their work with reputed research institutions and individuals, conferring greater embeddedness on the latter.
In Nigeria “academic institutions are looked at as the citadel of knowledge...that’s where we have trained manpower, people who are experts in this knowledge generation and dissemination” (NiaHR012102). A Mexican informant noted how partnership with international academic institutions “who was going to do very scientific work,” bolstered the legitimacy of the ministry’s work (MexHB012002). Reputable national academic institutions are also seen as an important grounding force. Another informant from Mexico stated that, “Universities offer ministers a power base because they know that knowledge is power. They are able to mobilize support for the design, evaluation, and implementation for policies. This generates an ethos for evidence-based policy-making” (MexHB022202).
Even at the individual level, reputation mattered: having “known experts” consult on committees and councils was deemed important. In Thailand, “policy-makers appreciate quality of research because we publish in international journals of high impact. Policy-makers see that with the publications, they are at the forefront of evidence-based decision making” (ThaHR011702). Members of research institutions were aware that even if policymakers didn’t read their papers, they would nonetheless duly consider their findings (IndHP012002). Capacity of embedded institutions
The fourth factor in our conceptual model (Figure 3) that increases embeddedness of research institutions is their capacity for producing research. According to our key informants this factor also appears to be important as evidenced by the substantial investments were made to bolster the capacity of research institutions in countries like Mexico and Thailand where they enjoy a high degree of embeddedness in policy making. In Mexico, the view was that “ideally you have to guarantee independence and technical capacity” (MexHB012002). While initially, health researchers trained abroad, upon the formulation of the National Institute of Public Health (NIPH), capacity began to be generated in-country. In Thailand, research institutions focused on the building three capacities – the capacity of the health workforce, the capacity to generate evidence through this human resource, and the capacity to use channels – both formal and informal – to translate evidence into policy-making. In his view “human capacity and commitment are the strongest factor for success” (ThaHR011702). In Cameroon, for instance, external consultants were undertaking a lot of the research until enough capacity was built for local health units to take up research. This suggests, again, that academic institutions are uniquely positioned to be embedded institutions.
Informants also reported an increased emphasis in research institutions on capacity building for knowledge translation. In Nigeria, for example capacity-building activities are underway through mentorship by senior researchers of decision makers in various WHO building block domain areas. In Iran, an institute has been created with the specific mandate of developing tools for the link between evidence and decision making. Similarly Mexican leaders are considering different institutional models for housing knowledge brokering functions. “…(it) would have to be carefully designed as a social intervention that makes use of networks, that makes use of influence, and so forth as opposed to just being an agency” (MexHB022202).
The sustainability of institutional embeddedness is contingent on continued capacity building. Even in a country like Thailand, where multiple institutions inform health decision making, our Thai informant reflected that “its still a very thin group of people…and mechanisms…and possibilities…many of these are not institutionalized…so it still creates a sustainability and continuity challenge” (ThaBH010803).
Other themes
In our conceptual model, we had also looked at dimensions of the environment and legislation as key elements affecting institutional embeddedness. In many cases, a culture of evidence created a conducive environment for institutional embeddedness. As regards legislation, we found that this was not always a necessary or sufficient factor in embeddedness, but in some countries it had played an important role.
The role of culture was deemed salient by informants. In Mexico, one informant described how the ministry “created an environment, a culture that privileged the use of research results…initially it was arbitrary probably, but turned out that ministers created a culture in which evidence was important” (MexHB012002). In India, a policymaker observed that “overall there is little appreciation of research. People think research is theoretical, that it is used to blame and that what is happening on the ground is more important” (IndHB012702). A mentorship program in Ebony state, Nigeria focused on establishing strong relationships between researchers and decision makers in an attempt to create a culture of evidence (NiaHR012102).
Participants had mixed views about the utility of legislation, beyond serving as a mechanism to create new institutions. In several countries, health policy and systems research institutes were created through an act of legislation. As this amounted to official government support of the institution, this was seen as a critical step towards establishing institutional legitimacy. In Mexico, legislators carried this a step further by forming the National Council of Evaluation, whereby every national program was required by law to be formally evaluated. According to one informant, “Legislation in Mexico has been able to make policy-makers much more willing to use research also because in many ways they have to commission research or evaluations by law” (MexHB022202). On the other hand, a Thai informant stated, “Legislation without human resource, without committed researchers is nothing” (ThaHR011702). In his thinking, the wielding of soft power generated through relationships is much more effective. He argues that: “…the power of evidence, and the process that evolves naturally is more powerful… Continuous relationship building is important part of the process and legislation might interfere with that” (ThaHR011702). In India, an informant reported that legislation is a barometer of success for knowledge-translation. According to him, “…the Supreme Court converts your study to a ruling or parliamentary standing committee decides that your (study) should be used as the basis (for implementation)…then you know you (researcher) have been to decision making [sic.]” (IndHR012102).
Limitations
This analysis has several limitations. Decision makers were under-represented in the study. Though the study protocol was designed to explore perspectives from both the research and policy domains, we were only able to interview two decision makers. We found that decision makers were very difficult to contact for interviews due to their busy schedules, prior commitments, and divided attention. Also, we suspect that a certain degree of caution may prevent them from engaging in interviews in which their particular view could be seen as courting controversy. Overall, the relatively few number of study participants also limits the degree to which we can capture the experience of a particular country. We were able to interview 12 individuals from 7 countries, with no more than two individuals interviewed in any single country. This was due in large part to the short time in which this study was completed. 4. Conclusion
This study represents a nascent attempt to understand the issue of research use in decision making from the perspective of embeddedness of research institutions in policy making. According to the network analysis literature, the degree of embeddedness of an organization refers to its structural position in an organizational network (15). The greater its embeddedness or centrality in an organizational network, the greater an institution's connectivity with other organizations in the network. This enables embedded organizations to be more immersed in the flow of information and resources than non-central organizations. In this study, we applied this idea of embeddedness to the context of research institutions (and their research) and the uptake of evidence in decision making for health.
Our findings suggest that multiple forces converge to create context-specific pathways through which research enters into the policymaking environment. Depending on the policy under consideration, Ministries of Health may call upon an intricate combination of actors for sourcing evidence. While proximity to a decision making core does have advantages, it is not the position of the institution within the network, but rather, the qualities that institution possesses that enable it to be embedded. Four factors were hypothesized to influence embeddedness - reputation, capacity, quality, and quantity of connections to decision makers. In addition to this, the policy environment was also expected to influence the uptake of research.
In the second phase of this study, we attempted to validate our conceptual model through qualitative research conducted with decision makers and researchers in seven countries. Through this process we garnered key insights about the creation of embedded research institutions, the processes by which ministries of health source research, qualities of embedded institutions, and features of the policy environment. Decision Makers sourced evidence from research institutions in a variety of ways - leveraging personal networks, accessing peer-reviewed publications, developing formal linkages with national statistics agencies, academic, or independent research institutions, or by assembling expert committees for a well-defined task. Key informants also shed light on the validity of our conceptual model. They did not confirm that the quantity of connections were important for embedding research institutions in policy making. However, the quality of linkages appeared important. High quality linkages included those where researchers were involved in policy making like in Thailand or Mexico; or where research institutions were part of the decision making body like medical universities under the Iranian Health Ministry; or where collaborative planning occurred, as in Thailand, where members of health departments and research agencies jointly identify and prioritize research needs. Reputation of the research institute was also important in increasing its embeddedness. The engagement of decision makers with academic institutions of repute conferred greater legitimacy upon the former’s work. Similarly, having known experts on decision making committees gives their work importance and legitimacy. Finally, research capacity was also important for increasing embeddedness as evidenced by the investments made by several countries to strengthen in-house research capacity. Further, emphasis was placed on capacity building for knowledge translation.
Among the other factors that appeared to increase embeddedness of research institutions was creating a culture of evidence among policy makers. This typically occurred because of the close ties between policy makers and research institutions. As regards legislation, key informants had mixed views about the utility of legislation for embedding research institutions beyond serving as a mechanism to create new institutions.
Our findings indicate that this embeddedness of research institutions occurs in a variety of ways and in many of the component areas of health systems. In some, particularly relating to medical technologies, research institutions and research enjoy a high degree of embeddedness in policy making. In other areas, like governance or human resources, research institutions have low embeddedness. Of the four factors hypothesized to influence the degree of embeddedness of research institutions in policy making – quality of connections, quantity of connections, capacity, and reputation – only quantity was found to be unimportant in our key informant interviews. Further, creating a culture for research among decision makers also emerged as a critical requirement. This suggests important ways in which research institutions can be encouraged to achieve greater embeddedness. Indeed, there is a clear need for more research to better understand these issues for furthering knowledge translation in LMICs. Works Cited
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A. Introduction
Hello, my name is [name of interviewer] from [name of institution]. I’m grateful to you for taking the time to talk to me (and my colleague).
We are conducting a multi-country consultation with the support of the WHO on the relationship between health evidence and policymaking. We want to develop case studies of how evidence is used or not used in policymaking, and what factors shape the chances of evidence influencing policymaking.
We are hoping to talk with you for about 30 minutes to one hour. Please talk to us freely and frankly and let us know if there are any issues we bring up that you do not want to discuss. We will be attributing your statements to your official designation and type of institution (eg. Bureaucrat, Directorate of Health; Senior Researcher, National Health Research Institute). You can also let us know if there is another way we should cite your statements, in our reports and publications.
Please let us know if you have any questions. Once we address those, we’ll get started.
B. Participant Information
Could you tell us/me about your work experience?
1. Sex \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_ 2. Country \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_
2. Designation\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_ 4. Department \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_
3. No of years in current position\_\_\_\_\_ 6. No of years in health \_\_\_\_\_\_\_\_\_\_\_\_
C. Embeddedness of Evidence in Health Decision Making
6. In your opinion, does evidence play a role in decision making in the ministry of health? a. Why is this the case? Has it always been like this? Recent changes, etc. b. (What) are the(re) relationships between institutions that produce evidence and the Ministry of Health? Between researchers and decision makers?
7. In your experience, when evidence is required by the Ministry of Health, how is it sourced? a. Role of interpersonal networks b. Role of institutional networks c. Role of informational networks (portals, public information) d. Other
8. Give an example of a recent MAJOR health policy implemented in the last 2-3 years a. Who was involved b. Who was consulted, what were the processes of deliberation c. What was the decision (services offered, new initiatives, legislation etc.) d. Were there any linkages to ongoing or prior evidence? If yes, describe? If not, why do you think not?
9. In your opinion, what has increased the chances of evidence being used in the decision making process? Please think of the aforementioned example: a. Types of relationships between policymakers and researchers b. Numbers of relationships between policymakers and researchers
c. Institutional relationships, if applicable
d. Specific areas of capacity/expertise/kinds of evidence?
e. Reputation of organisations or individuals?
f. Role of legislation
g. What are the challenges of your setup?
h. Other?
10. Is there anything that you would like to add that I have not asked you about regarding the topic that we have been discussing?
Those are all my questions for now. Thank you so much for taking the time to talk and sharing your experience. In case we have any clarifications regarding what you have shared with us, would it be alright to get in touch with you later on telephonically or in person depending on your convenience?
## Appendix 2: Key Informants
| Country | Type | Affiliation | Interview Date | Years in current Position | Years working in health sector | |---------|---------------|--------------------------------------------------|----------------|---------------------------|-------------------------------| | Lebanon | Both | Ministry of Health/American University of Beirut | 27/2/2012 | 19 years | 28 years | | Iran | Researcher | National Institute of Health Research | 14/2/2012 | 2.5 years | 10-15 years | | Nigeria | Researcher | Ebony State, Nigeria | 17/2/2012 | 5 years | 9 years | | India | Researcher | National Health System Resource Center | 21/2/2012 | 5 years | 10 years | | Mexico | Researcher | Center for HS Research - NIPH | 22/2/2012 | 7 years | 35 years | | Mexico | Both | Ministry of Health | 20/2/2012 | 20 years | 30 years | | Thailand| Researcher | International Health Policy Programme. MOH | 17/2/2012 | 15 years | 32 years | | India | Decision Maker| Ministry of Health & Family Welfare | 28/2/2012 | 4 years | 10-15 years | | Cameroon| Researcher | Medical Imagining Unity, Univ. Yaounde | 3/2/2012 | 4 years | 14 years | | Lebanon | Researcher | American University of Beirut | 3/5/2012 | 7 years | 15 years | | Iran | Decision Maker| Ministry of Health and Medical Education | 8/3/2012 | 40 years | 46 years | | Thailand| Both | National Health Foundation | 8/3/2012 | 10 years | 32 years |
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a6927db6952692b9f898c7f3b8f24048e4e4eb80 | reg. 63 Assessment of implications for European sites and European offshore marine sites Conservation of Habitats and Species Regulations 2017/1012 | UK SI 2017/1012 Pt 6(1) reg. 63
Delivery Details Date: 2 December 2020 at 6:45 pm Delivered By: Richard Price Client ID: NOCLIENTID Status Icons: 🕵️♂️ Conservation of Habitats and Species Regulations 2017/1012
reg. 63 Assessment of implications for European sites and European offshore marine sites
(1) A competent authority, before deciding to undertake, or give any consent, permission or other authorisation for, a plan or project which—
(a) is likely to have a significant effect on a European site or a European offshore marine site (either alone or in combination with other plans or projects), and
(b) is not directly connected with or necessary to the management of that site,
must make an appropriate assessment of the implications of the plan or project for that site in view of that site's conservation objectives.
(2) A person applying for any such consent, permission or other authorisation must provide such information as the competent authority may reasonably require for the purposes of the assessment or to enable it to determine whether an appropriate assessment is required.
(3) The competent authority must for the purposes of the assessment consult the appropriate nature conservation body and have regard to any representations made by that body within such reasonable time as the authority specifies.
(4) It must also, if it considers it appropriate, take the opinion of the general public, and if it does so, it must take such steps for that purpose as it considers appropriate.
(5) In the light of the conclusions of the assessment, and subject to regulation 64, the competent authority may agree to the plan or project only after having ascertained that it will not adversely affect the integrity of the European site or the European offshore marine site (as the case may be).
(6) In considering whether a plan or project will adversely affect the integrity of the site, the competent authority must have regard to the manner in which it is proposed to be carried out or to any conditions or restrictions subject to which it proposes that the consent, permission or other authorisation should be given.
(7) This regulation does not apply in relation to— (a) a site which is a European site by reason of regulation 8(1)(c);
(b) a site which is a European offshore marine site by reason of regulation 18(c) of the Offshore Marine Conservation Regulations; or
(c) a plan or project to which any of the following apply—
(i) the Offshore Petroleum Activities (Conservation of Habitats) Regulations 2001(^1) (in so far as this regulation is not disappplied by regulation 4 (plans or projects relating to offshore marine area or offshore marine installations) in relation to plans or projects to which those Regulations apply);
(ii) the Environmental Impact Assessment (Agriculture) (England) (No. 2) Regulations 2006(^2);
(iii) the Environmental Impact Assessment (Agriculture) (Wales) Regulations 2017; or
(iv) \[the Merchant Shipping (Ship-to-Ship Transfers) Regulations 2020\](^3).
(8) Where a plan or project requires an appropriate assessment both under this regulation and under the Offshore Marine Conservation Regulations, the assessment required by this regulation need not identify those effects of the plan or project that are specifically attributable to that part of it that is to be carried out in the United Kingdom, provided that an assessment made for the purpose of this regulation and the Offshore Marine Conservation Regulations assesses the effects of the plan or project as a whole.
(9) In paragraph (1) the reference to the competent authority deciding to undertake a plan or project includes the competent authority deciding to vary any plan or project undertaken or to be undertaken.
Notes
1 Amended by S.I. 2007/77, 1842, 2010/1513, 2015/1431, 2016/529, 912, 1042 and 2017/582. 2 Amended by S.I. 2009/1307, 3264, 2010/1159, 2011/1043, 1824 and 2017/593. 3 Words substituted by Merchant Shipping (Ship-to-Ship Transfers) Regulations 2020/94 reg.13 (February 26, 2020)
Table of Amendments
| | | |---|---| | 3 | Pt 6(1) reg. 63(7)(a)-(b) Revoked by Conservation of Habitats and Species (Amendment) (EU Exit) Regulations 2019/579, Pt 3 reg. 24 December 31, 2020: shall come into force on IP completion day not exit day as specified in 2020 c.1 s.39(1) and Sch.5 para.1(1) | | 2 | Pt 6(1) reg. 63(7)(c)(iv) Words substituted by Merchant Shipping (Ship-to-Ship Transfers) Regulations 2020/94, reg. 13 February 26, 2020 | | 1 | see commencement below | Commencement
Pt 6(1) reg. 63(1)-(9) November 30, 2017
Extent
Pt 6(1) reg. 63(1)-(9) United Kingdom
Enabling Act
C
Criminal Justice Act 2003 c. 44, Pt 13 s. 307(3) Criminal Justice Act 2003 c. 44, Pt 13 s. 307(5)
E
European Communities Act 1972 c. 68, Pt I s. 2(2) European Communities Act 1972 c. 68, Sch. 2 para. 1A
Crown Copyright material is reproduced with the permission of the Controller of HMSO and the Queen’s Printer for Scotland
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faf560262cb46987a218ea5b16ba104792bfbe26 | The impacts of tracks on the integrity and hydrological function of blanket peat (NEER002)
1st Edition - May 2013
www.naturalengland.org.uk The impacts of tracks on the integrity and hydrological function of blanket peat
Mike Grace¹, Alan Dykes², Simon Thorp³ and Alistair Crowle¹
¹Natural England ²Kingston University ³Heather Trust
Published on 30 May 2013 Citation
This report should be cited as:
GRACE, M., DYKES, A. P., THORP, S. P. R. & CROWLE, A.J.W. 2013. Natural England review of upland evidence - The impacts of tracks on the integrity and hydrological function of blanket peat. Natural England Evidence Review, Number 002.
Contact details
Mike Grace Principal Specialist Natural England Telford - Parkside Court Hall Park Way Town Centre Telford TF3 4LR [email protected]
Acknowledgements
The authors would like to thank: Helen Rae, Dave Stone, Evelyn Jack, Ben Nicholls, Brigid Newland, Anne Beach, Morag Daines, Barry Gray, Gemma Smith, Tim Hill, Mike Burke, Angie Brewell and Adelle Rowe for their support and assistance in completing this review.
Cover photograph
Skiddaw Group SSSI, Cumbria © Peter Wakely/Natural England. Executive summary
Management of the English uplands is complex and achieving good environmental outcomes, while taking into account the needs of owners, stakeholders and other interests is a balancing act. An uplands evidence review has been undertaken in which a number of candidate topics have been considered. These topics were identified through stakeholder input, reflection on areas of advice subject to challenge and looking at what could make a difference on the ground. The five priority topics identified have formed the review programme and will help further the understanding of available evidence to support uplands management.
This topic review focused on a series of questions which were evaluated against scientific evidence. The topic review has also helped identify areas for future research; in the next phase, beyond the review programme, additional relevant information will be considered, for example social and economic factors, current working practices and geographic scale. The evidential conclusions drawn from these additional areas will help inform our future advice and practical management of the uplands on the ground.
Context
In recent years, in the English uplands, there has been an increase in the number of requests to construct tracks upon blanket bog for example to facilitate grouse management. In addition to this, there has also been an increase in the use of all-terrain vehicles in the uplands associated with upland management in general. Aside from the visual intrusion on the landscape there are concerns that the use of made and unmade tracks has effects on the processes and structure of blanket peat and are associated with major events such as landslips, as well as more subtle changes that disrupt the active formation of peat. Blanket bog is a globally rare habitat and much of its area receives protection under domestic and European legislation. In order to be able to ensure these sites receive the appropriate protection it is essential that we understand the impacts of track construction and vehicle use.
Purpose and focus of the review
This report covers one of five topics that form the Upland Evidence Review Programme being conducted by Natural England. All five topics have been addressed concurrently and this topic review forms part of the overall programme report.
The original over-arching question for this topic review was:
**What are the impacts of tracks on the integrity and hydrological function of blanket peat?**
Impacts on biodiversity were included within the scope of this topic review, but other than the loss of surface vegetation, no evidence was found that related to this issue so it is not considered further in this report.
This topic review report therefore addresses the available evidence to help understand the impacts of tracks and vehicle use on the structure and hydrology of blanket peat. Four sub-questions provided further focus for the topic review and these addressed the structural integrity of peat, hydrological issues, vehicle usage and erosion issues. The sub-questions were outlined in the draft scope of the Review Programme and refined following stakeholder feedback to address the key concerns.
This topic review is confined to a consideration of available information and this is used to identify some knowledge gaps. The topic review does not consider the effect of the state of our knowledge on Natural England’s policy and advice; this will be a separate phase of work to follow the Upland Evidence Review Programme. Process used in reviewing evidence
The initial search of the available evidence produced a list of 754 relevant papers and these were further filtered to identify 106 papers that were directly relevant to the review questions. In turn these were assessed against inclusion-exclusion criteria and evaluated closely. As a result of this process, 49 papers were accepted for quality assessment and data extraction with a further 5 being considered to be of relevance to the topic review although not providing quantifiable evidence.
A topic review group [the authors of this report] was established to agree the interpretation of evidence and from this; the group drew the conclusions that are found in each of the relevant sections. These conclusions were then used to determine a number of recommendations for further research.
Conclusions on the impacts of tracks and vehicle use upon the structure and hydrology of blanket peat
The topic review group has been careful to be led by the evidence and from our consideration of the evidence in which we had confidence we were able to reach a conclusion in respect of all of the sub-questions posed. The lack of evidence addressing the ecological impacts of tracks (aside from impacts upon vegetation) meant that we could not draw any conclusions in that respect.
In answering the over-arching topic review question, what are the impacts of tracks upon the integrity and function of blanket peat, it is that tracks have a number of impacts on the structure and hydrology of blanket peat. Constructed tracks affect structural integrity and can cause instability. The hydrology of peat is affected by construction, and drainage through ditches that can further affect stability. As might be expected the type of vehicle, loading and usage influences the impact of unmade tracks and there is evidence to suggest that in these cases erosion can become an ongoing problem.
More particularly, we have been able to reach the following conclusions:
- Tracks alter the structural integrity of blanket peat. Building upon peat compresses the peat and alters the drainage patterns on and around the peat, both within the peat body and over its surface. The level of compression and disruption depends upon the structure and wetness of the peat in question. Peat that is loaded (for example, by being built on) will consolidate, the permeability will reduce (affecting natural sub-surface drainage) and the level of surfaces and any structures will settle. Drier peat has a stronger surface layer than very wet or saturated peat, and therefore tracks on dry peat are less likely to cause damage. Drainage ditches can feed or focus water into areas of weak peat, thereby potentially creating instability. Similarly, the cutting of drainage ditches across slopes removes support for the slope above and damages the structural integrity of the peat deposit. This may also lead to instability.
- Tracks alter the hydrological system of blanket peat at either surface or sub-surface level. The artificial drainage of peat results in the settlement of the peat, which disrupts the hydrology both within the sub-surface peat body and over its surface. Drainage channels are damaging as they result in drying of the peat and may lead to instability of the peat depending upon their position within the slope or by channelling water into areas of structural weakness. Constructed tracks result in the settlement of peat and the reduction of sub-surface flow through the peat because of the consolidation process. Compression of the peat through track construction may lead to accumulations of surface runoff water (ponding), which may lead to erosion and/or instability of the track and adjacent peat. Constructed tracks usually require ditches to be made to manage runoff, but these ditches are normally damaging because they result in drying and possibly instability of the peat. Drainage of peat results in deformation (in the form of settlement) of the peat. • The type of vehicle, loading and usage influences the impact of unmade tracks upon the structural integrity and hydrology of the blanket peat. Vehicle use on unmade tracks is damaging to the surface vegetation. The level of damage depends upon the type of & weight of the vehicle, the number of journeys made and the type and wetness of the peat in question.
The number of vehicle movements, the weight and the type of tyre or ‘caterpillar’ track used by the vehicle are relevant, with weak evidence to indicate that rubber ‘caterpillar’ tracks may reduce the level of impact. One study showed that vehicle use on unmade tracks damages vegetation in ways that may be irreversible. We found that the evidence is insufficient for any meaningful comparisons to be made relating to the impacts of vehicles moving across constructed tracks.
• The disruption of blanket peat by tracks (both constructed and unmade) at surface and sub-surface level results in erosion and this erosion is ongoing. The science does not allow the separation and quantification of this erosion. From the available evidence we have not been able to quantify levels of erosion derived from a constructed track as there is no research that has addressed this subject in isolation.
Research recommendations
Finally, the report sets out a number of concluding remarks and recommendations that are suggested by the evidence, which we hope will be of interest for the direction of future research and operational considerations. Including investigations of:
• The reduction of permeability that results from consolidation at surface and sub-surface levels under a ‘floating’ constructed track by means of long-term monitoring of a track (or tracks) following construction and with reference to pre-construction conditions.
• The biodiversity impacts arising from (a) altered downslope hydrological conditions and (b) the use of alkaline road gravel (limestone) on otherwise acidic peatland.
• Other relevant hydrological properties of the peat mass including features such as pipes and desiccation cracks, and how they may affect the overall response of the peat.
• The geotechnical properties of the peat mass, how they relate to the botanical composition of the peat and how they change under loading.
• Surficial hydrology, erosion and vegetation change at a variety of contrasting sites damaged by temporary constructed tracks.
• Surface and subsurface peat properties and conditions following disturbance by vehicles driving across the peat and with reference to pre-construction conditions.
# Contents
Executive summary ii
Context ii
Purpose and focus of the review ii
Process used in reviewing evidence iii
Conclusions on the impacts of tracks and vehicle use upon the structure and hydrology of blanket peat iii
Research recommendations iv
1 Introduction 1
Background 1
The need for the review programme 1
The nature of the evidence 2
Overall scope of the Upland Evidence Review Programme 2
Review topic: Impact of upland tracks 3
Blanket bog development and structure and why there is a conflict with track development 3
What is considered in this topic review? 3
The over-arching topic review question 3
Comparator 4
2 Methods 5
Evidence search 5
Search terms 5
Search strategy 5
Selection of studies for inclusion 5
Study type and quality appraisal 6
Study categorisation 7
Description of studies 7
Study locations 7
Duration of outcome measures 8
Strength of evidence 8
Assessing applicability 9
Issues that were taken into account 9
Synthesis 11
3 Do tracks (constructed or unmade) alter the structural integrity of blanket peat? 13
Summary of evidence and conclusions 13
Analysis and evidence statements 14
Consolidation (settlement) of peat 14
Peat stability 16
Vehicle use on unmade tracks 18
The impacts of tracks on the integrity and hydrological function of blanket peat v Further research recommendations
4 Do tracks (constructed or unmade) alter the hydrological system of blanket peat at either surface or sub-surface level?
Summary of evidence and conclusions Analysis and evidence statements Research recommendations
5 Do type of vehicle and usage influence the impact of the track (constructed or unmade) upon either the structural integrity or hydrology of the blanket peat?
Summary of evidence and conclusions Analysis and evidence statements Research recommendations
6 Do tracks (constructed or unmade) lead to enhanced erosion of blanket peat?
Summary of evidence and conclusions Analysis and evidence statements Research recommendations
7 Concluding remarks and summary
8 Summary of research recommendations
9 Glossary of terms Glossary references
10 Additional references used
## Appendices
| Appendix | Title | Page | |----------|----------------------------------------------------------------------|------| | Appendix 1 | Summary of studies by review question, study type, quality and location | 41 | | Appendix 2 | Full citation list for publications included within the review | 48 | | Appendix 3 | Additional photographs | 51 | List of tables
Table 1 Number of sources examined for this review 6 Table 2 Types of studies 6 Table 3 Quality categories of studies 6 Table 4 Summary of study quality and type 7 Table 5 Summary of studies by country of origin 8
Appendix 1: Table A Summary of studies by review question, study type, quality and location 41 List of figures
Figure 1 Conceptual framework for understanding the linkages between different impacts of track construction 10
Figures 2 and 3 On 22 August 2008, work to construct a ‘floating road’ on 3 m deep blanket peat, to provide access for a new wind farm on Ballincollig Hill, Co. Kerry, Republic of Ireland, triggered a 130,000 m$^3$ landslide. Peat-cutting activities 10 years earlier constituted a contributory factor in this event. The photos show the site after about 100 m of destroyed road had been rebuilt into the landslide area in order to facilitate recovery of the construction plant 12
Figures 4 and 5 This small, non-mettalled ‘floating road’ was built in around 1998 across blanket peat in the Cuilcagh Mountain Park, Co. Fermanagh, Northern Ireland 20
Figure 6 When this photograph was taken in the North Pennines, the track was about ten years old and this corner had been built up at least once. At the time of construction this track was above the surrounding bog 25
Figure 7 Ponding of water by the side of a moorland track in the North Pennines. Note the drainage channel intended to remove the surface water 25
Figure 8 An example of track widening (braiding) in the North Pennines. The vehicle used in this example was hagglund which is a tracked vehicle 28
Figure 9 Damage caused by a hagglund in the North Pennines 29
Figure 10 Above: A mesh track surface in the North Pennines. Below: The same track prior to putting the mesh surface in place 33 List of plates
Appendix 3: Plate A Mountain bike and foot path damage in the West Pennines 51 Plate B Vehicle damage in the West Pennines 51 Plate C An example of track damage submitted to the Uplands Evidence Review 52 Plate D An example of track damage submitted to the Uplands Evidence Review 52 1 Introduction
Background
1.1 In March 2011 Defra published the Government’s review of uplands policy which sets out a range of actions the Government will take, led by Defra and in partnership with others in the public, private and voluntary sectors, to help secure a sustainable future for the English uplands. The actions in the Uplands Policy Review sit under four main themes:
- Supporting England’s hill farmers.
- Delivering public goods from upland environments (including biodiversity).
- Supporting sustainable upland communities.
- Driving and monitoring change.
1.2 Natural England has a specific role in helping to deliver the Uplands Policy Review; in particular through our research and evidence based advice, our delivery of agri-environment schemes, and our partnership work with the hill farming and moorland management sector and rural communities to deliver a wide range of public goods and environmental benefits. Our role in the uplands is also shaped by our broader role in the delivery of the government’s Natural Environment White Paper and Biodiversity 2020 aspirations that focus on the enhancement and protection of ecosystem services and the natural environment, including improving the condition of England’s SSSIs. Biodiversity 2020 targets for SSSIs are to achieve 50% in ‘favourable’ condition and 95% in ‘favourable recovering’ condition by 2020.
1.3 For these reasons it is important that our advice and decisions are based on sound evidence and that our evidence processes are transparent and robust.
The need for the review programme
1.4 The English uplands are extensive and include a range of biotopes, species and land management practices. It is widely recognised that they contribute to a range of ecosystem services although this topic review (tracks) does not investigate these services.
1.5 As such, the uplands present a number of environmental conservation, and land management challenges. This is particularly the case in understanding the effects of land management operations on upland biodiversity.
1.6 The Uplands Evidence Review Programme seeks to draw together the best available evidence to provide sound evidence of the effects of land management activities on upland
______________________________________________________________________
1 Ecosystem services can be defined as services provided by the natural environment that benefit people. These benefits include:
- Resources for basic survival, such as clean air and water;
- A contribution to good physical and mental health, for example through access to green spaces, both urban and rural, and genetic resources for medicines;
- Protection from hazards, through the regulation of our climate and water cycle;
- Support for a strong and healthy economy, through raw materials for industry and agriculture, or through tourism and recreation; and
- Social, cultural and educational benefits, and wellbeing and inspiration from interaction with nature.
For further information see: [www.defra.gov.uk/environment/policy/natural-environ/documents/nature-do-for-you.pdf](http://www.defra.gov.uk/environment/policy/natural-environ/documents/nature-do-for-you.pdf) biodiversity and ecosystem services. In doing so, it provides a basis for advice and decisions on future management of the uplands.
1.7 In recent years, in the English uplands, there has been an increase in the number of requests to construct tracks upon blanket bog to facilitate grouse management. In addition to this, there has also been an increase in the use of all-terrain vehicles in the uplands associated with upland management in general. Blanket bog is a globally rare habitat and much of its area receives protection under domestic and European legislation. In order to be able to ensure these sites receive the appropriate protection it is essential that an understanding of the impacts of track construction and vehicle use is established.
The nature of the evidence
1.8 Over several decades a body of evidence has accumulated exploring the effects of different types of land management interventions on a range of upland ecosystem services, habitats and species. There is a wide variety of study types, for example ‘before-and-after’, ‘correlation’ and ‘case-control’ studies, which may have taken advantage of opportunities for natural experiments. ‘Randomised control trials’ are rare. Although there are many methodological differences within the relevant literature, notably the lack of consistency between measurement methods and different outcomes measures, overall the results provide a basis from which conclusions about intervention effects and research needs can be developed. The focus of most of this work has been upon vegetation and species and their interaction with land management practices. Little or no research has been carried out into the impacts of interventions involving the construction of tracks or buildings.
1.9 It is worth noting a number of significant challenges associated with undertaking a review of the evidence relating to upland management interventions. Firstly, the search strategy needs to be broad enough to capture studies from non-traditional sources including journals and other works not indexed in environmental databases, and work that may be in the ‘grey’ literature (such as reports or case studies). Furthermore, studies may present invalidated measures that can be difficult to equate to effects on biodiversity or ecosystem services. Finally, the wide range of study types, for example ‘post-intervention only measures’ or ‘uncontrolled pre- and post-intervention studies’, increasing the risk of bias.
Overall scope of the Upland Evidence Review Programme
1.10 The uplands are a broad biotope encompassing a variety of habitat, species and ecosystem services, and are subject to a variety of land management interventions. This review will focus on five issues where there are significant challenges:
- The impacts of tracks on the integrity and hydrological function of blanket peat.
- Restoration of degraded blanket bog.
- The effects of managed burning on upland peatland biodiversity, carbon and water.
- Upland Hay Meadows: What management regimes maintain the diversity of meadow flora and populations of breeding birds?
- Impact of moorland grazing and stocking rates.
1.11 This report presents the findings from the ‘impacts of tracks’ topic review.
1.12 Consideration of other relevant information, such as social and economic factors, is an important part of the process of developing our advice, but is not part of this topic review. Climate scenarios are also excluded from the topic review. Review topic: Impact of upland tracks
Blanket bog development and structure and why there is a conflict with track development
1.13 Blanket bogs accumulate when decaying plant remains are maintained in a saturated condition by rainfall, in climates where the annual rainfall exceeds the annual evapotranspiration.
1.14 In many cases two distinct layers can be identified within a blanket bog. The upper layer is known as the ‘acrotelm’ and comprises a strong, fibrous mat of living vegetation and live roots, over the upper layer partially decomposed plant remains. Beneath the acrotelm is the ‘catotelm’, in which the humification (degree of decomposition of plant remains) increases and permeability typically reduces with depth as the fibre content reduces and the proportion of amorphous matter increases. The catotelm material is weaker than the acrotelm and it may contain sub-surface structures such as natural pipes or relict, desiccation cracks that act as conduits for rapid subsurface drainage of rainwater.
1.15 These attributes of blanket bog are significant because there are an increasing number of constructed tracks on blanket peat to enable vehicular access for a range of land management operations. These are relatively linear features in the landscape that may change the peat structure and alter the nutrient and hydrological environment, affecting the ecosystem services and biodiversity of blanket peat.
What is considered in this topic review?
1.16 The evidence in this topic review covers the creation of vehicle tracks across blanket peat, including both constructed and ‘unmade’ (ie no surface preparation or protection) routes. The primary focus is on constructed tracks that require hard engineering, but the review will also consider the use and impact of mesh products that provide less intrusive alternatives to constructed tracks. No studies were found that investigated the impacts of tracks or vehicles upon the wider biodiversity of blanket peat or upon associated ecosystem services. This topic review did not produce any evidence statements based upon any cost-effectiveness data.
The over-arching topic review question
1.17 What are the impacts of tracks upon the integrity and function of blanket peat?
The following sub-questions were the focus of the topic review:
a) Do tracks (constructed or unmade) alter the structural integrity of blanket peat?
b) Do tracks (constructed or unmade) alter the hydrological system of blanket peat at either surface or sub-surface levels?
c) Does the type of vehicle and usage influence the impact of unmade tracks on either the structural integrity or hydrology of the blanket peat?
d) Do tracks lead to enhanced erosion of blanket peat?
1.18 The sub-questions were drawn up to try and address the commonly perceived issues relating to vehicle and track use on blanket peat. Historically, these have focused upon hydrological and structural changes to the blanket peat as a result of activities associated with vehicular access.
1.19 Chapter 2 of this report briefly describes the methods and process for this topic review. Chapters 3 to 6 consider the four sub-questions in turn. These chapters provide a short summary of the evidence, underpinned by a more detailed analysis of the evidence which is used to derive evidence statements, which encapsulate the nature and strength of the evidence. Conclusions are reached about the effects of tracks based upon the evidence reviewed and recommendations for further research are suggested where gaps in the evidence are identified. Chapter 7 provides a summary and concluding remarks and chapter 8 draws together the research recommendations.
Comparator
1.20 The comparators for the questions in this topic review are either:
1. Functionality(^2) of blanket peat prior to intervention; or
2. Functionality of blanket peat where intervention has not occurred.
(^2) Functionality in this case means the ability of the peat to behave naturally, i.e. natural hydrological flows are maintained and peat forming plants occur and are setting down peat. 2 Methods
2.1 This chapter briefly sets out how this topic review was undertaken following the approach described *Natural England Evidence Reviews: guidance on the development process and methods* (Stone, 2013).
Evidence search
2.2 Literature searches were conducted using the terms listed below. References were downloaded, or manually added if necessary, into a reference manager database (EndNote Web). Duplicate references were removed. References were also identified through direct contacts with key international and national experts and lead organisations. In addition, there was an open call to interested stakeholders to submit documented evidence for consideration as part of the review and 8 submissions were received.
Search terms
2.3 The following search terms were used:
Blanket peat, Blanket bog, Blanket mire, Peat, Bog, Mire, Peatland, Peat soil, Soil, Upland, Track, Road, Route, Vehicle, Machinery, Traffic, Access, Floating road, Construction, Building, Engineering, Damage, Degrade, Compaction, Compression, Impact, Erosion, Sediment, Carbon, Particulate, Hydrology, Drainage, De-watering, Biodiversity, Vegetation change.
Search strategy
2.4 The following databases were searched:
Web of Science (from 1990), CAB Abstracts (from 1990), Zoological Record (from 1978), Olib, Scirus, IngentaConnect, Google Scholar, Google, NORA, ScienceDirect (Engineering subject collection), Transport Research International Documentation (TRID).
2.5 Publication searches were undertaken on:
British Library ETHoS, the CCW library catalogue and EPA Ireland.
Selection of studies for inclusion
2.6 The search strategy resulted in 754 titles. These were screened by title and abstract for relevance. In total 106 were assessed as likely to be relevant and the full papers were retrieved, checked against the inclusion-exclusion criteria and evaluated closely. Where any uncertainty existed, the full paper was assessed by a second reviewer. Having put the 106 publications through this process, 54 remained and were accepted for quality assessment and data extraction.
______________________________________________________________________
3 Publications relating to the construction of major highways over peat were excluded unless they included studies of peat responses to loading. One paper was excluded on this basis. Studies focused upon peat structure in permafrost environments were also excluded (2 papers) but studies that related to bog vegetation on semi-permafrost sites were not. Table 1 Number of sources examined for this review
| Review stage | Number of studies | |------------------------------------------------------------------------------|-------------------| | Studies captured using search terms in all sources (excluding duplicates) | 754 | | Studies remaining after title filter | 568 | | Studies remaining after abstract filter | 356 | | Studies remaining after full text filter | 106 | | Studies used in review | 54 |
A list of the references will be available on-line.
**Study type and quality appraisal**
2.7 Each study was categorised by study type (Table 2), then quality-appraised against criteria appropriate for each study type and given one of three quality ratings (Table 3). This approach followed that set out in the project brief.
Table 2 Types of studies
| Rating | Definition | |--------|-------------------------------------------------------------------------------------------------------------------------------------------| | 1 | Meta-analyses, randomised control trials (RCTs) (including cluster RCTs) or systematic reviews of RCTs. | | 2 | Systematic reviews of, or individual, non-randomised controlled trials, case-control trials, cohort studies, controlled before-and-after (CBA) studies, interrupted time series (ITS) studies, correlation studies. | | 3 | Non-analytical studies, for example, case reports, case series studies. | | 4 | Expert opinion, formal consensus. |
Table 3 Quality categories of studies
| Rating | Definition | |--------|-------------------------------------------------------------------------------------------------------------------------------------------| | ++ | All or most of the methodological criteria, as set out in the assessment forms, have been fulfilled. Where they have not been fulfilled the conclusions are thought very unlikely to alter (low risk of bias). | | + | Some of the criteria have been fulfilled. Those criteria that have not been fulfilled, or not adequately described, are thought unlikely to alter the conclusions (risk of bias). | | - | Few or no criteria have been fulfilled. The conclusions of the study are thought likely or very likely to alter (high risk of bias). | 2.8 Table 4 provides a summary of the study types and categories. A full listing of papers is in Annex 1. No Type 1 studies were found. The main reasons for studies being assessed as ‘−’ quality were (i) failure to describe methods adequately, (ii) a low quality measure of ecosystem and biodiversity outcomes, and (iii) failure to take potential confounders(^4) into account. No studies with a ‘−’ score were considered within the tracks topic review.
Table 4 Summary of study quality and type
| Study type and quality rating | Number of studies | |------------------------------|-------------------| | 2++ | 23 | | 2+ | 20 | | 3+ | 1 | | 4+ | 10 |
Study categorisation
Description of studies
2.9 Forty-nine (49) studies are described in sections presenting the summary of findings (Section 3) and in the Evidence Table. Five of the final 54 publications/submissions did not provide quantifiable evidence, but were recognised as being of relevance to this review: Countryside Commission for Scotland (1978), Land Use Consultants (2005), MacCulloch (2006), Stoneman (1997) and United Utilities (2012). The issues raised in these submissions/reports will be discussed in Section 7 of this report. The 49 studies include:
- 3 ‘before-and-after’ studies; and
- 6 ‘controlled before-and-after’.
2.10 These studies tested a range of different environmental interventions related to the effects of tracks on the integrity and function of blanket peat (but not did investigate the impacts in relation to the ecosystem services provided by blanket peat). They were assessed under 4 different categories:
- structural integrity of peat;
- hydrology of blanket peat;
- vehicle use; and
- erosion of blanket peat.
Study locations
2.11 Sixteen of the credible studies were conducted in Great Britain. Table 5 presents the frequency of studies by country.
______________________________________________________________________
(^4) Confounders are things that may have an effect upon the results obtained and ideally need to be eliminated in the experimental design. Where this has not been possible, they need to be considered when drawing up conclusions. Table 5 Summary of studies by country of origin
| Country or region of origin | Number of studies | |-----------------------------|-------------------| | Great Britain | 16 | | Ireland\* | 14 | | North America | 11 | | Russia | 1 | | Sumatra | 1 | | Sumatra | 1 | | Finland | 3 | | Italy | 1 | | Scandinavia | 1 | | Malaysia | 1 |
\*In this report, ‘Ireland’ refers to the geographical island of Ireland, comprising Northern Ireland and the Republic of Ireland
Duration of outcome measures
2.12 Five studies measured a combination of short- and long-term measures (Barden 1968, Lake 1961, Ahlstrand 1993, Blackwood 2006, Fox 1996, Alakukku 1996a & b, Ruseckas 1998). All of the remaining studies were of less than 12 months’ duration.
Strength of evidence
2.13 The strength of evidence is described in terms of strong, moderate or weak. This is partly a subjective judgment, taking account of not only the number of supporting studies and their quality scores, based on the criteria in Table 3, but also a consideration of the aims and focus of a study. A study may for example have a very high quality score based on the design and analysis, and the findings in relation to the effects of tracks may be important, but the aims of the study may be wider and cover a range of treatments.
2.14 Unusually perhaps, the studies assessed within this topic review were largely saying the same things. There was not one study which reported findings that were at odds with all the others.
2.15 The strength of evidence is defined as follows:
- **Strong** - was used where there is a large number of studies that are in agreement (>5).
- **Moderate** - was used where there is a smaller number (3-5) of studies that are in agreement.
- **Weak** - was used where there is only one or maybe two studies involved. Assessing applicability
2.16 Each study was assessed in terms of its external validity: that is, whether or not it was directly applicable to the scope of the Review. This assessment took into account the location of each study and any reasons why a study might not be relevant or valid for the Review. Several issues were identified that were not taken further, such as metalled roads, and we did not find any evidence of the influence of animals in terms of track development or use. This left five issues to be considered:
a) timescale; b) type of track; c) theoretical relationships between impacts of track construction on different properties and characteristics of the peatland and its constituent peat material; d) vehicles driving directly on the peat; and e) structural integrity of the peat and what this means.
Issues that were taken into account
Timescale
- Immediate impacts associated with construction of the track.
- Short to medium term impacts of the track existing and being used.
- Residual impacts following removal of a temporary track.
- Long term impacts of the continuing existence of the track.
Type of track
- Unmade tracks and footpaths.
- Constructed tracks:
1. Small, temporary track – lightweight surface geotextile membrane only.
2. Small, ‘permanent’ track – ‘floating’ track comprising thin layer of aggregate placed on a geotextile membrane.
3. Heavy-duty ‘floating’ track (for example, for wind farm construction) – as above but wider, with a thicker gravel layer and possibly an additional layer under the geotextile (for example, tree trunks).
4. Heavy duty track (for example, for forestry) formed on the mineral surface having excavated the peat.
2.17 The evidence and conclusions were considered in the context of the distinction between track types.
2.18 The type of track, and therefore the nature and extent of the immediate impacts associated with construction, will depend on the purpose for which it is planned, except that 3) and 4) are alternatives for the same purpose, usually depending on the depth of peat and slope gradient. It will also depend on the likely usage in terms of size (dimensions, total weight, contact pressures) of vehicles and the frequency of vehicle movements along the road. Theoretical relationships between impacts of track construction on different properties and characteristics of the peatland and its constituent peat material
Figure 1 Conceptual framework for understanding the linkages between different impacts of track construction
2.19 The scientific studies of peat can be categorised under three very broad headings: (i) ecology (including biodiversity and palaeoecology), (ii) hydrology, and (iii) geotechnics (particularly relating to stability). Under each of these headings there may be several distinct impacts of track construction, and these are likely to take effect over different timescales relative to the time of track construction. Furthermore, some of the distinct physical impacts may directly influence, or even give rise to, other effects under the same heading or other types of impacts under other headings. Figure 1 shows how some of the main types of impacts relate to each other. Track construction will cause consolidation of the peat and may cause the immediate closure of subsurface pipes and macropores, both of which will increase the pore water pressures in the peat and, in turn, may trigger a landslide in certain circumstances. On the other hand, immediate or progressive hydrological change (either impact) may be expected to give rise to some kinds of ecological (including biodiversity) changes over longer periods of time. If a landslide occurs, there will be immediate and potentially major ecological impacts. Note that the ‘stability’ impacts necessarily follow each other in the sequence shown but may not actually result in a landslide. The ‘hydrology’ impacts are independent of each other, as are the ‘ecology’ impacts.
Vehicles driving directly on the peat surface
- Size of vehicle (total weight, contact pressure - thin tyres v wide tyres v tracks?).
- Frequency of movement over the same patch of ground. 2.20 The same factors relate to people walking on peat, ie how often a person steps on the same bit of peat and the type of footwear they are using. Researchers have found that on some sites a single footprint is identifiable a year after it was made.
The structural integrity of peat
2.21 Sub-question 1) considers ‘structural integrity’ of the peat. This is taken this to mean any disruption to the physical continuity of the peat mass that may give rise to structural weakness (including landslides) or expose the surface peat to erosion. However, it could also include the compression/consolidation of peat under the load of a ‘floating road’, particularly if significant subsurface structures such as natural pipes become closed as a result, but in any case because the physical properties of the peat mass are being altered.
Synthesis
2.22 It was not appropriate to use meta-analyses (techniques for contrasting and combining different studies) to synthesise the outcome data because the interventions (the types of experiment/investigations), methods and outcomes were heterogeneous (diverse). This review is restricted to a narrative overview of all studies that met the inclusion criteria and contained sufficient information for data extraction and quality assessment. The studies were examined with respect to the scope identified by the ‘impact of tracks’ sub-questions and stratified by study quality. The evidence statements were developed using:
- The best available evidence of the effect of an intervention.
- The strength (quality and quantity) of supporting evidence and its applicability to the populations and settings in question.
- The consistency and direction of the evidence base. Figures 2 and 3 On 22 August 2008, work to construct a ‘floating road’ on 3 m deep blanket peat, to provide access for a new wind farm on Ballincollig Hill, Co. Kerry, Republic of Ireland, triggered a 130,000 m$^3$ landslide (see paragraph 3.30 for evidence statement). Peat-cutting activities 10 years earlier constituted a contributory factor in this event. The photos show the site after about 100 m of destroyed road had been rebuilt into the landslide area in order to facilitate recovery of the construction plant. 3 Do tracks (constructed or unmade) alter the structural integrity of blanket peat?
3.1 The chapter explains key terms, summarizes the nature and strength of the evidence and identifies the conclusions reached based upon the evidence reviewed and recommendations for research in relation to this question.
3.2 The ‘structural integrity of blanket peat’ refers to the overall state of the physical structure and corresponding physical, hydrological and geotechnical (‘mechanical’) properties of the entire peat deposit. The structural integrity can be altered in two main ways:
1. Cutting or excavation of the peat (which includes the creation of ditches), which creates weaknesses in the overall peat deposit on the slope by breaching the structural (particularly acrotelm strength) continuity and/or removing support for the entire thickness of peat upslope of the cut.
2. Loading of the peat by placing materials such as gravel fill for a ‘floating’ road, which vertically compresses the peat (a process known as ‘consolidation’) and may cause adverse changes in water pressures between individual microscopic particles of the peat, which may reduce the intact strength of the catotelm material. The natural subsurface drainage conduits (ie pipes and other macropores) may also become closed, leading to localised high water pressures and increased surface runoff further upslope. Consolidation of the peat under such loading necessarily results in lowering of the elevation of the original peat surface and, therefore, of anything placed on it.
Summary of evidence and conclusions
3.3 There are one 2++, five 2+, two 4+ publications regarding tracks/roads that are relevant to this evidence question and three 2++ publications that refer to vehicle movements. In addition there were ten 2++, thirteen 2+, two 4+ publications assessed as being relevant to this evidence question.
3.4 There is strong evidence that loading (building upon) of peat results in the settlement (compression) of the peat (Barden, 1968 [2+], Berry, 1983 [2+], Hobbs, 1986 [2++], Blackwood et al. 2006 [2+], Munro, 2004 [4+], Fox & Edil, 1996 [2+], Lefebvre, 1984 [2++], Hanrahan, 1964, [2+], Lake, 1961 [2+], Gunn, 1998 [4+], Landva & Rochelle 1983 [2+]).
3.5 There is moderate evidence that compression of peat reduces the permeability of the peat (Berry et al. 1975 [2+], Hobbs, 1986, [2++], Mesri & Ajlouni, 2007 [2+]).
3.6 There is weak evidence that vehicle use over thin peat results in compression of the peat/soil layer (Alakukku 1996a & 1996b [2++, 2++]).
3.7 There is moderate evidence that drainage of the peat results in settlement (Barry et al. 1992 [2+], Hobbs, 1986 [2++], Bradof, 1992 [2++], Rahman et al. 2004 [2++]).
3.8 From this, we conclude that:
- If peat is loaded (for example, by being built on) it will consolidate, the permeability will reduce (affecting natural sub-surface drainage) and the level of surfaces and any structures will settle. 3.9 There is strong evidence that drainage ditches may be a factor linked to peat slope instability (Dykes et al. 2008 [2++], Yang & Dykes, 2006 [2++], Dykes & Kirk, 2006 [2++], Dykes & Kirk, 2001 [2++], Carling, 1986 [2+], Tomlinson & Gardiner, 1982 [2+], Wilson & Hegarty, 1993 [2+]).
3.10 There is weak evidence that tracks have been the cause of peat failures (Dykes & Jennings, 2011 [2++], Lindsay & Bragg 2005 [4+]).
3.11 There is weak evidence that the initial draining of the surface of peat can lead to an increase in tensile strength (Casagrande, 1966 [2+], Rahman et al. 2004 [2++]) and so could provide an increased resistance to the erosive effect of vehicle tyres/tracks or footsteps.
3.12 From this we conclude that:
- Drier peat has a stronger surface layer than very wet or saturated peat, and therefore tracks on dry peat are less likely to cause damage.
- Drainage ditches can feed or focus water into areas of weak peat, thereby potentially creating instability.
- The cutting of drainage ditches across slopes may damage the structural integrity by removing support for the slope above and damages the structural integrity of the peat deposit. This may also lead to instability.
- Due to the large number of studies in this section they are presented under three headings: Consolidation, Peat Stability and Vehicle Use.
Analysis and evidence statements
Consolidation (settlement) of peat
3.13 One study (2+) that proposed a simplified model for predicting primary and secondary consolidation of clay and peat reported that their results agreed with others in that drainage results in deformation of the peat, but that the processes taking place were not necessarily agreed (Barden, 1968). This author also recognized that that drainage of micro-pores was a key process but at the time of writing, the physics was not yet established.
3.14 One study (2+) identified that lowering of the water table was expected to cause settlement of the peat by three mechanisms: (i) increase in (vertical) stress causing rapid settlement in permeable peat; (ii) shrinkage of the peat as it dries due to the lost water having occupied a large proportion of the peat volume (iii) allowing aerobic conditions that result in an increased rate of decomposition (Barry et al., 1992). These authors reported that field monitoring indicated that ditches cut close to the road led to increased settlement by reducing the ability of the peat to act as a mat. In relation to the road that was the subject of the study, Barry et al. (1992) found that a track constructed from logs and stone was unable to maintain its surface elevation 0.5 metres above the surrounding ground (as had been originally specified) whilst a timber piled raft with a geogrid reinforced with a stone pavement was shown to perform satisfactorily.
3.15 One study (2+) investigated incremental controlled compression of the peat in advance of a housing development (Berry, 1983). He identified two options for loading peat and predicting settlement times but this was based on a field trial and not a pilot scheme.
3.16 A review of published experimental data (2+) that combined the authors’ own data (Berry et al. 1972) found that settlement of amorphous granular and fibrous peat showed very close agreement with theoretical predictions. Reporting on a subsequent construction site study (2+) Berry et al. (1975) found agreement between observed and predicted rates of settlement. This same study found a decrease of around three orders of magnitude (ie a factor of a thousand) in vertical permeability during the consolidation process with a corresponding The impacts of tracks on the integrity and hydrological function of blanket peat decrease in compressibility that had a net effect of reducing drainage rates. These authors also found that settlement times varied depending on the consolidation pressure.
3.17 A review (2++) of testing procedures for predicting settlement in peat by Hobbs (1986) concluded the following:
Water properties
- The bulk of the water within the peat is held as intracellular and inter-particle water with the proportions depending upon the structure and morphology of the plants present.
- Drainage of peat influences the proportions and quantity of water in the peat.
- There is considerable evidence that fibrous peats have a higher total water content than granular-amorphous peats.
- The stronger, less decomposed peat is more susceptible to compression than softer, more highly decomposed peat.
Engineering properties
- The permeability of the peat controls the rate of consolidation.
- The tensile strength of the acrotelm depends upon the plant cover. The acrotelm is more permeable than the catotelm but permeability declines with depth.
- The permeability of the catotelm depends on the botanical composition (Sphagnum moss tends to produce less permeable peat), the degree of humification, bulk density (higher bulk density = lower permeability), fibre content (higher fibre content = higher permeability), drainable void ratio/permeability (higher void ratio = higher permeability) and surface loading (diminishes the permeability by decreasing the void ratio/porosity).
Permeability under load
- Primary consolidation (ie the expulsion of pore water accompanied by structural re-arrangement of the particles) is a relatively short-term process.
- Secondary consolidation (or ‘secondary compression’), which is influenced by the size of the load, is the dominant process with the rate of settlement possibly increasing over time. This process is largely independent of the water content.
Overburden and pre-consolidation
- Drainage of mires increases the overburden pressure with the extent depending upon the drawdown and the age of the drainage scheme.
- Accurate prediction of the amount and progress of settlement is not possible.
3.18 One study (2+) quantified the consolidation of fibrous peat using a combination of laboratory analysis and existing published data (Mesri & Ajlouni, 2007). This study reported that fibrous peat particles are large and water-filled making them very compressible. They also found that on compression, the permeability of fibrous peats decreases dramatically.
3.19 Reporting (2+) on the construction of a metalled ‘floating’ road which was considered in the review as it also investigated settlement and settlement rates, Blackwood et al. (2006) noted that the route went over 4.3 metres (14 ft) of deep peat and that the settlement during primary consolidation of 0.6 metres (2 ft), was less than was calculated.
3.20 One study (2++) investigating the shear strength of peat found that shear behaviour was sensitive to over-consolidation (Cola & Cortellazzo, 2004).
3.21 A review (4+) of the current practices for construction of roads over peatlands in Northern Europe reported that the use of geotextile (for heavier trafficked roads) did not reduce the overall settlement in the long-term and that soil creep may affect the long-term performance of the geotextile (Munro, 2004).
3.22 An investigation (2+) into the effect of stress and temperature on secondary compression of peat found that a large fraction of the total settlement was due to secondary compression and that tests indicated that the rate of compression increases with time so that constant settlement predictions may underestimate the settlement (Fox & Edil, 1996).
3.23 An investigation (2++) into the impacts of road building and drainage upon peat structure found that changes in peat surface elevation can be related to changes in water level (Bradof, 1992). This study reported that on one site between 1915 and 1979/82, the average subsidence was c.3 mm per year and at a second site, over the same period, the average subsidence was c.10 mm per year. One of the sites showed a weak negative correlation between subsidence and distance from ditch (closer = greater subsidence).
3.24 A study (2+) of the construction techniques in relation to embankments reported that an increase in shear strength is found with decreasing water content (Casagrande, 1966).
3.25 A study (2++) into settlement rates in peat affected by construction (Lefebvre et al. 1984) reported that primary consolidation took between 10-20 days after construction and the inferred secondary consolidation in the field was about double that of the laboratory tests.
3.26 A study (2+) of the settlement rates of peat by Landva & Rochelle (1983) reported that Radforth peats (fibrous peats with little or no mineral matter) were highly compressible with a high rate of deformation and that as a result, predictions of magnitude and rate of settlement are difficult.
3.27 An investigation (2+) into the causes of a road failure on peat in Ireland (Hanrahan, 1964) found that variable settlement (deformation) of the road took place as a result of the non-uniform, and in places, excessively thick applications of gravel.
3.28 A study (2+) reporting the problems of constructing roads on peat noted that displacement of peat took place during loading despite the fill being added at a rate aimed at preventing displacement. This rate of application was too low for practical construction purposes. The behaviour of the peat under load appeared to be affected by the properties of the peat itself, which were not fully understood at the time of the research (Lake, 1961).
**Peat stability**
3.29 A review (4+) aimed at providing guidance on peat landslide hazard and risk assessments (Astron, 2006) identified the following most frequently reported anthropogenic (ie resulting from human activity or influence) factors for peat mass movements:
1. The alteration to drainage patterns focusing drainage and generating high pore-water pressures along pre-existing, or potential, rupture surfaces.
2. Unloading of the peat mass by cutting of peat at the toe of a slope reducing support to the upslope material.
3. Digging and tipping, which may undermine or load the peat mass respectively and may occur during building, engineering, farming or mining (including subsidence).
4. Changes in vegetation cover caused by burning, heavy grazing or stripping of the surface peat cover, which may reduce the tensile strength of the upper layers of the peat body.
3.30 One study (2++) investigating the causes of 9 peat slope failures in August 2008 in Ireland found that suspected trigger for one failure was the construction of a track (Dykes & Jennings, 2011; see Figures 2 and 3). Following a ‘discussion’ on this paper in the journal of publication, Dykes & Jennings made the further observation in their reply that the cutting through of the peat to a depth of 1-1.5 metres as part of the process for extracting peat ‘turves’ destroyed the tensile strength of the peat at the site in question, thereby contributing to the occurrence of the slope failure when loaded by the construction work (Long et al., 2011).
3.31 A study (2++) investigating the causes of landslides on Cuilcagh Mountain in northwest Ireland found that of the 45 landslides investigated, one slide had a drainage ditch as a contributory factor (see paragraph 3.9) and another had a leaking PVC water pipe and the trench cut for the pipe as a contributory factor (Dykes et al., 2008).
3.32 A study (2++) investigating the tensile strength of peat and its relationship to specific blanket bog failures was able to quantify the importance of acrotelm tensile strength in the occurrence or not of bogflows (Dykes, 2008a).
3.33 A review (2++) of slope instability and mass movements by Dykes and Kirk (2006) identified that ditches across a sloping bog may eliminate down-slope support for the bog above the ditches (2 examples). They found that a common effect of drainage channels was the transfer of additional storm runoff into failure zones either directly or indirectly through connecting natural pipes (4 examples). Drainage associated with forestry ploughing was found to have contributed to one failure.
3.34 A study (2++) investigating the causes of slope failures at Dooncarton Mountain in Ireland found that 40 separate slides were recorded but that contrary to the previous cited paper (see paragraph 3.33) and other reports (for example, see paragraph 3.37, the same case referred to also in paragraphs 3.31 and 3.42), drainage channels cut across the slope at two of the landslides were not determined to have played a significant role in this case (Dykes & Warburton, 2008). These authors did find that cutting of peat for fuel on one site contributed to the instability.
3.35 An investigation (2++) of the role of peat liquidity in blanket bog failures by Yang & Dykes (2006) found that under certain conditions, the movement of water into pore spaces may lead to deformation of the peat. Where peat is susceptible to this, engineering works in the form of loading associated with wind farm construction or the storing of material on a peat body, can potentially lead to failure of the peat body.
3.36 A review (2+) of the evidence for a link between hill slope hydrology and mass movements in areas of blanket peat in the north of England found that out of 18 peat failures, 7 may have had an anthropogenic activity as a contributing factor (Warburton et al. 2004). A similar review (2++) by Dykes (2008b) on the causes of peat slope failures in Ireland found that around 50% were probably associated with anthropogenic influences.
3.37 A study (2++) into the causes of a specific slope failure on Cuilcagh Mountain in Ireland in 1998 concluded that the presence of a degraded drain and natural soil pipes contributed to the failure of the slope (Dykes & Kirk, 2001).
3.38 Investigating (2+) the mechanisms of peat failures in the North Pennines, Carling (1986) reported that slides occurred on slopes that had already displayed a history of mass movement and that the alignment of drainage channels may have contributed to instability of the slope.
3.39 A study (2+) of the causes of seven bog slides in Ireland found certain common factors: torrential rainfall, breaks of slope at the head of the movement, drains (4 slides) or streams and an impervious layer under the peat (Tomlinson & Gardiner, 1982).
3.40 A study (2+) into the causes of two peat slides in Ireland found that they were likely to have been caused by a combination heavy rainfall, degraded ditches and slope morphology (Wilson & Hegarty, 1993). 3.41 A review (4+) of issues around the Derrybrien bog slide (Lindsay & Bragg, 2005) reported that a smaller slide related to the construction of a turbine base and adjacent road also occurred prior to the main slide. They found that the site showed movement of peat that was not all related to the construction activity although some of it (for example, the bowing of a drain) clearly was. The authors also draw attention to another nearby wind farm where a peat landslide was observed and reported that that slide is believed to have also originated at an access road.
3.42 A review (2++) of the causes of peat slope failures in Ireland (Dykes, 2008b) concluded that:
1. Future weather patterns may make peatlands more susceptible to failure.
2. Old and degraded land drains and boundary ditches can focus water into a particular area of slope or reduce lateral support for the peat layer upslope from the ditch.
3. New wind farms are increasing the risk of future peat landslides as a result of the loading from ‘floating’ gravel access roads.
3.43 A summary report (4+) on the issues surrounding the construction of a 3 km access track across blanket bog highlighted several issues:
1. Material underlying the track was squeezed sideways and the adjacent bog rose.
2. Material underlying the track compressed due to the weight of the track and the track sank into the bog.
3. Most of the failures of the track were in the degraded cut-over bog and required considerable depths of stone to build the track, in some cases 1.3 metres rather than the design depth of 0.3 metres.
4. Surface flow drainage had been concentrated in places resulting in scouring.
Vehicle use on unmade tracks
3.44 One study (2++) found that between one and four passes with a high axle load (16 Mg) on well-decomposed sedge peat compacted the peat to a depth of 0.4-0.5 metres and this compaction persisted for at least three years (Alakukku, 1996a). Another study (2++) by the same author revisited plots 9 years after the intervention and found that all of the peaty soils in the study demonstrated compaction effects at the sub-soil level (below 0.25 metres) (Alakukku, 1996b).
3.45 A study (2++) of the mechanical properties of peat in relation to vehicle use found that in field situations, the bulk density of the peat, the mean stiffness (strength) of the surface mat and the stiffness of the underlying peat all increased when the peat was drained (Rahman et al. 2004).
Further research recommendations
3.46 We are confident in our conclusions as drawn from the available evidence, but most of the evidence relates to specific examples or to (geotechnical) experiments relating to particular engineering contexts. Hence although the general nature of some of the reported effects on peat are well known, the precise mechanisms and factors that may determine the magnitude and extent of those impacts – which may result in improved capabilities for predicting such effects – are uncertain if not unknown. Particular difficulties are experienced by engineers planning the construction of access tracks for wind farms or other management purposes because of insufficient knowledge of how peat strength relates to other peat properties and how it can be reliably measured, interpreted and used in quantitative stability assessments.
3.47 We have therefore identified several specific studies that would address critical knowledge gaps highlighted by the evidence:
1. Tracks are linear features in the landscape that will cross natural drainage directions and as such may present particular difficulties in terms of preventing negative effects on the peatland hydrology. The reduction of permeability that results from consolidation under a ‘floating’ constructed track (conclusion 1), or even arising from vehicles on the peat surface – both the process and the nature and extent of the effects of this process – are unknown. These issues would need to be investigated by means of long-term monitoring of a track (or tracks) following construction and with reference to pre-construction conditions.
2. A long-term investigation of the actual effects of constructing a typical ‘floating’ gravel road, as specified in 1 (above), would enable other, related issues to be examined in detail. These would include:
- the biodiversity impacts arising from (a) altered downslope hydrological conditions and (b) the use of alkaline road gravel (limestone) on otherwise acidic peatland;
- all other relevant hydrological properties of the peat mass including features such as pipes and desiccation cracks, and how they may affect the overall response of the peat; and
- geotechnical properties of the peat mass, how they relate to the botanical composition of the peat and how they change under loading.
3. In parallel with 2)(3rd bullet point), above, further research is needed into the geotechnical properties of peat, how they relate to other peat properties and how they can be reliably measured and utilised in engineering design and stability assessments (particularly, but not exclusively, relating to planned construction of tracks, and supporting conclusions in points 2–4). These issues would need to be investigated by means of extensive field and laboratory measurements of peat, involving blanket bogs of varying botanical and environmental characteristics (for example, Ireland, Pennines, Shetland).
4. A component of the study suggested in 3 (above) would ideally also determine the nature of any changes in strength of the surface layers of the peat in response to drying (conclusion 2).
3.48 See Section 8 for further detail relating to research recommendations. Figures 4 and 5 This small, non-metalled 'floating road' was built in around 1998 across blanket peat in the Cuilcagh Mountain Park, Co. Fermanagh, Northern Ireland. Although largely successful in terms of its purpose and design (in allowing vehicle access), evidence statement 3.43 in part refers to this example. 4 Do tracks (constructed or unmade) alter the hydrological system of blanket peat at either surface or sub-surface level?
4.1 The chapter summarizes the nature and strength of the evidence and identifies the conclusions reached based upon the evidence reviewed and recommendations for research in relation to this question.
4.2 The distribution and movement of water through and over blanket peat depends on the hydrological characteristics of the peat system. The boundary between the acrotelm and the catotelm (see paragraphs 1.13-1.15 for definitions) is normally defined as the maximum depth to which the water table (i.e., the upper surface of the water saturation) may occasionally fall during particularly warm and dry periods of weather in summer, i.e., no more than about 0.5 m.
4.3 Under normal seasonal weather conditions many blanket bogs in the north and west of the British Isles tend to remain saturated to the surface all the time, although in England, seasonal variations in the water table depth have been recorded in the North Pennines. In general, this means that rainfall usually runs off rapidly over the surface of the bog because it cannot infiltrate into the already-saturated acrotelm (for example, Holden, 2011; Evans et al., 1999). Drainage of the peat would not normally be expected to reduce such overland flow because it may cause the peat to shrink, reducing the water content and also the total water storage capacity.
4.4 Even during a hot period in summer, when the water table has fallen below the surface, it may require only a small amount of rainfall to refill the available storage capacity before overland flow begins. This rapid surface runoff is an important and characteristic component of blanket bog hydrology.
4.5 In assessing the question above it has been necessary to include within the review any activity that results in the blanket peat having a reduced capacity to store water or a reduced capacity for water to flow freely across the peat surface.
Summary of evidence and conclusions
4.6 A body of strong evidence was relevant to this question with two 2++, one 2+, two 4+ publications specifically identifying roads or tracks as part of the study. Four 2++ and six 2+ publications concerned the response of peatland to loading or the influence of drainage. It should be noted that the impact of drainage on blanket bog is covered in the review topic on restoration of blanket bog.
4.7 The consolidation processes that follow surface loading of peat, and the consequences for the peat in terms of drainage, as explained in paragraphs 1.13-1.15, are also directly relevant to this section of the report.
4.8 There is strong evidence that loading of peat (for example, by building or placing fill materials on it) results in settlement of the peat (Barry et al. 1992 [2+], Berry, 1983 [2+], Berry et al. 1972 [2+], Hobbs, 1986 [2++] and a decrease in permeability of the peat (Berry et al. 1975 [2+], Mesri & Ajlouni, 2007 [2+], Hobbs, 1986 [2++], Ruseckas, 1998 [2+]). These changes can also affect the stability of the peat (See Section 3.29 - 3.43). 4.9 There is strong evidence that drainage of blanket peat results in the settlement of the peat (Bradof, 1992 [2++], Hobbs, 1986, [2++], Barden, 1968 [2+], Barry et al. 1992 [2+], Ruseckas, 1998 [2+]).
4.10 There is evidence that extent of the settlement of peat due to drainage depends on the age of the drainage scheme and the associated water table draw-down, making accurate prediction of the amount and progress of settlement impossible (Hobbs, 1986 [2++]).
4.11 There is weak evidence that roads constructed using a log raft with gravel top layer usually sink (Barry et al. 1992 [2+], Lindsay & Bragg, 2005 [4+]).
4.12 There is weak evidence that the fibrous peat found within the surface of a peat body is more compressible than the deeper amorphous peat (Mesri & Ajlouni, 2007 [2+], Hobbs, 1986 [2++]).
4.13 There is evidence that the strength of the acrotelm (surface peat) depends upon the plant cover (Hobbs, 1986 [2++]).
4.14 From this we have concluded that:
- Drainage of peat results in deformation (in the form of settlement) of the peat.
- Small, permanent (non-metalled) constructed tracks will result in settlement of peat.
- Constructed tracks result in the reduction of sub-surface flow through the peat because of the consolidation process.
4.15 There is evidence that the bulk of the water in peat is held as intracellular and inter-particle water with the proportions depending upon the structure and morphology of the plants present. Water is held in those spaces by capillary and adsorption forces (the remainder, a tiny fraction, draining freely from macropore spaces due to gravity) (Hobbs, 1986 [2++]).
4.16 There is evidence that drainage of peat influences the proportions and quantity of water in the peat. When the peat body settles (and settlement is not necessarily uniform) water is squeezed out from the intracellular and inter-particle spaces. An analogy would be toothpaste being squeezed out of a tube. The precise mechanisms are not scientifically known (Hobbs, 1986 [2++]).
4.17 There is weak evidence that drainage channels (with or without roads) can reduce surface saturation and, hence, overland flow (Lane & Milledge, 2012 [2++], Lindsay, 2007 [4+]).
4.18 There is moderate evidence that ditches can contribute to slope instability through directing water into failure zones (Dykes & Kirk, 2006 [2++]) or by removing downslope support (Dykes & Kirk, 2001 [2++]).
4.19 This leads us to conclude that:
- Whilst ditches play a role in managing runoff, on balance they are damaging to peat because they result in drying and possibly, through different mechanisms, instability of the peat. [If peat oxidises, it loses mass (and, in association with the concurrent drying, volume) and density, such that it may become locally buoyant. If excess rainwater can reach the base of such peat and raise pore water pressures sufficiently (and across a large enough area), instability may be promoted by the peat being floated off its base].
______________________________________________________________________
5 It is recognized that there is a degree of duplication and overlap between the conclusions of Sections 3 and 4 as settlement affects structure and hydrology. This reflects the consistency and level of agreement within the evidence base. • Compression of the peat through track construction may lead to accumulations of surface runoff water (ponding), which may lead to erosion and/or instability of the track and adjacent peat.
4.20 There is evidence from one study that recovery of blanket bog vegetation on unmade vehicle tracks following cessation of use was towards a grass-heath community rather than a blanket bog one and that recovery may not take place without further intervention (Charman & Pollard, 1995 [2++]).
4.21 From this we conclude that:
• That vehicle use on unmade tracks damages vegetation in ways that are not fully understood and may be irreversible without management intervention (the efficacy of which has not been assessed).
Analysis and evidence statements
4.22 The results of one study (2+) that proposed a simplified model for predicting primary and secondary consolidation of clay and peat agreed with other studies: Drainage results in deformation of the peat but the processes taking place were not necessarily agreed (Barden, 1968). This author also recognized that that drainage of micropores was a key process, but that at the time of writing, the physics was not yet established.
4.23 One study (2+), reported in paragraph 3.14 but also relevant here, identified that lowering of the water table was expected to cause settlement of the peat by three mechanisms:
• increase in (vertical) stress causing rapid settlement in permeable peat; • drying shrinkage causing irreversible changes in the peat; and • allowing aerobic conditions that result in an increased rate of decomposition (Barry et al., 1992).
4.24 These authors reported that field monitoring indicated that ditches cut close to the road led to increased settlement by reducing the ability of the peat to act as a mat.
4.25 These studies have been reported in paragraphs 3.15 and 3.16 respectively and involved the investigation of preloading of peat (Berry, 1983, 2+), (Berry et al., 1972, 2+), (Berry et al., 1975, 2+). Their results were consistent with previous studies with the additional finding of a decrease in vertical permeability of three orders of magnitude (ie a factor of a thousand) during consolidation, with a corresponding decrease in compressibility that had a net effect of reducing drainage rates. These authors also found that settlement times varied depending on the consolidation pressure.
4.26 One study (2++) found that drainage channels have the effect of re-arranging the surface drainage patterns of a slope, resulting in reductions in surface saturation (Lane & Milledge, 2012).
4.27 One study (2+) quantified the consolidation and compression of fibrous peat using a combination of laboratory analyses and existing published data (Mesri & Ajlouni, 2007). This study reported that fibrous peat particles are large and water-filled, making them very compressible. These authors also found that upon compression, the permeability of fibrous peats decreases dramatically.
4.28 One study (2+) on the changes to the physical and hydrological properties of peatland under forest, following drainage 30 years previously, found that the peat had settled by 15-25 cm in the middle of the drained area and by 24-37 cm near the ditches (Ruseckas, 1998). The same study found that the bulk density in the 0-20 cm depth zone was almost doubled (increased by a factor of 1.6-2.1) and that in the same horizon under a road, the hydraulic conductivity had been reduced by a factor of 60-150 times.
4.29 A study (2++) investigating the recovery of vegetation on blanket bogs following the cessation of track use found that blanket bog vegetation had a poorer recovery in comparison to other vegetation communities (Charman & Pollard, 1995) and concluded that neither of the two tracks with a blanket bog vegetation community saw a successful regeneration of bog vegetation. This study found that with regard to the recovery of the blanket bog vegetation, the direction of succession was towards a grassland-heath community rather than the original blanket bog community. These authors suggested that the period of recovery for blanket bog on Dartmoor was 24 years and that natural restoration to an undamaged state may never take place in the absence of intervention.
4.30 A study (2++) investigating the impacts of road building and drainage on peat structure and vegetation found that diversion of the natural flow paths of water led to a lowering of the water table on one side of the road (Bradof, 1992). This author also found that changes in the water table depth resulted in changes in peat surface elevation.
4.31 One study (4+) commissioned to investigate issues around wind farm construction identified that road construction could disrupt the surface hydrology of peat sites amounting to several square kilometres in area (Lindsay, 2007). The author also identified that disruption of upslope water movement would depend in part on whether a drain is installed parallel to the upslope side of the road. In the absence of a drain, there is a tendency for water to pond along the upslope side of the road and this could contribute to slope instability. The author reported that cross-drains (drains running under the road) tended to be spaced at about 50 metre intervals meaning that only relatively small areas down slope would have water fed to them. The author noted that in the examples that were investigated, the management response to a road sinking and becoming flooded was often to install major drainage works.
4.32 One study (4+) commissioned to review issues around the Derrybrien bog slide (Lindsay & Bragg, 2005) noted that where floating roads used a timber raft, the raft eventually becomes waterlogged with the weight of the aggregate pushing it further into the peat. In periods of high rainfall, water from the now higher surrounding acrotelm drains into (and onto), the road. This in turn leads to an increased requirement for drainage which leads to exposure of peat and oxidative wastage. Where water is channelled under pressure, the force can lead to the removal of vegetation and initiate erosion.
4.33 An investigation (2++) of slope instability by Dykes and Kirk (2001) found that ditches across a sloping bog may eliminate lateral support for the bog upslope of any ditches. The same authors (2006) found that a common effect of drainage channels was the transfer of additional storm runoff into failure zones, either directly or indirectly through connecting natural pipes (4 examples). Drainage associated with forestry ploughing was found to have contributed to one failure.
4.34 Hobbs - note that this summary is found in Section 3.17.
**Research recommendations**
4.35 We are confident that our conclusions are correct but there are significant gaps in our understanding of the hydrological properties and behaviour of the peat and of ecological changes associated with the construction of tracks and, hence, restoration requirements. The research recommendations specified under Section 3.46 – 3.48 would enhance understanding and provide substantial additional quantitative evidence relating to Chapter 4. Issues related to the restoration of damaged peatlands will be examined in the report by the ‘Peatland Restoration’ panel. However, it is clear that evidence of recovery of peatland vegetation following damage relating to vehicle use on tracks or following removal of temporary constructed tracks, is extremely limited. A long-term monitoring investigation of the proximal and lateral effects on surficial hydrology, erosion and vegetation change at a variety of contrasting sites damaged by temporary constructed tracks or by vehicles on unmade tracks (then protected from further disturbance) would address the scientific uncertainties.
Figure 6 When this photograph was taken in the North Pennines, the track was about ten years old and this corner had been built up at least once. At the time of construction this track was above the surrounding bog.
Figure 7 Ponding of water by the side of a moorland track in the North Pennines. Note the drainage channel intended to remove the surface water. 5 Do type of vehicle and usage influence the impact of the track (constructed or unmade) upon either the structural integrity or hydrology of the blanket peat?
5.1 This chapter summarizes the nature and strength of the evidence and identifies the conclusion reached based upon the evidence reviewed and recommendations for research in relation to this question. It should be noted that the only evidence discovered related to unmade tracks.
Summary of evidence and conclusions
5.2 Seven studies (four 2++, two 2+, one 3+) reported on the effects of vehicle use on the structural integrity or hydrology of blanket peat.
5.3 There is moderate evidence that there is great variation in the inherent strength of peat and this variation determines the susceptibility of a given site to damage by vehicular movements (Arp & Simmons, 2012 [2++], Sparrow et al. 1978 [2++], Nugent et al. 2003 [2++] Wong et al. 1979 [2++]). Also, the wetter the peat, the more damage takes place (Sparrow et al. 1978 [2++]\]. Robinson et al. 2006 [3+]).
5.4 There is moderate evidence that damage to the peat surface increases with the weight of the vehicle and the number of vehicle movements (Ahlstrand & Racine, 1993 [2++], Saarilahti, 1997, [2+]) as does soil compaction (Sparrow et al. 1978 [2++]).
5.5 There is weak evidence that the mode of movement, ie ‘caterpillar tracks’ or wheels, can have a bearing on the damage caused to the peat surface with tyres being reported as more damaging than rubber tracks (Wong et al. 1979 [2++]). Tyre ruts were found to re-direct drainage channels and, in one case, partially drained a quaking bog (Robinson et al. 2006 [3+]).
5.6 Trail braiding occurs when multiple tracks diverge from, and converge with, the original trail in areas which are less passable to vehicles or people on foot due to rutting and ponding of water. There is weak evidence that organic soils (including blanket peats) were found to be most susceptible to the development of braiding with an average of 8 semi-parallel tracks covering a width of 17-125 metres (Arp & Simmons, 2012 [2+]). The same study found that the most severely degraded trails were consistently found along the upslope edge of the trail.
5.7 There is moderate evidence that the increasingly repeated passage of vehicles over peat destroys the vegetation and damages the surface layer, resulting in the development of a quagmire (Sparrow et al. 1978 [2++], Ahlstrand & Racine 1993 [2++], Arp & Simmons, 2012 [2+]). As would be expected, the greater the number of vehicular movements, the greater the compression of vegetation tussocks and the greater the area of peat that is exposed.
5.8 From this we have concluded that: • Damage to peat associated with unmade tracks depends on the peat type, the weight of vehicle, the number of vehicle movements and the type of tyre or ‘caterpillar’ track used by the vehicle.
Analysis and evidence statements
5.9 One study (2+), investigating both mineral and muskeg soils (see Glossary), reported that damage varied depending upon trail use, soil type and associated vegetation (Arp & Simmons, 2012). One study (2++), investigating peats less than 50 cm in depth and underlain by cobbles, reported that peat depth and drainage were the most important factors influencing the long-term impact of traffic on soil (Sparrow et al. 1978). Both of the previous two studies were concerned with off-road vehicles, but did not identify the types of vehicles. Another study (2++), based on a raised bog, reported that the vehicle influence was generally confined to the top 40 cm (Nugent et al. 2003) but this focused on forestry harvesting machines. As may be expected, a study (2++) by Ahlstrand & Racine (1993) found that heavier all-terrain vehicles usually produced deeper tracks than lighter vehicles (vehicles varied in weight between 100-1200 kg with tyre track widths ranging from 0.7-1.2 metres).
5.10 One study (2+) reporting 44 (least used) to 155 (most used) round-trip vehicle movements resulted in extensive braiding of trails on muskeg, with an average of 8 semi-parallel tracks covering a width of 17-125 metres. About 25% of the trail braids on muskeg soils were un-vegetated. These trails were characterised by the presence of ponded water in trail depressions resulting from a combination of erosion and freeze thawing. More severely degraded trails were consistently found along the upslope edge of the trail corridor (Arp & Simmons, 2012).
5.11 One study (2++) that was focused on forest harvesting machines (Nugent et al. 2003) found that on a raised bog, the initial strength of the surface peat significantly influenced rut development. A study (2++) looking at vehicle movements on peat reported that the underlying peat deposit had a much lower bearing capacity and shear strength than the surface mat (Wong et al. 1979). This same study found that rubber tyres created deeper ruts than similar vehicles mounted on continuous rubber ‘caterpillar’ tracks. They concluded that rubber tracks or tracks with rubber pads could offer a reasonable compromise with regard to traction requirements whilst minimising surface damage. Another study (2+) focused on machinery for forest harvesting (Saarilahti, 1997) reported that rut depth was related to the shear strength and/or penetration resistance of the soil and the wheel load combined with wheel dimensions. One study (2++) found that the wettest areas were often the most disturbed parts of a trail when subjected to heavy use (>12 vehicles a year) (Sparrow et al. 1978). The same study found that repeated off-road vehicle use destroyed the peat surface layer or mat, which became saturated and turned into a quagmire. One report (3+) found that erosion of the wettest ground, following off-road use, was one of the most damaging features (Robinson et al. 2006). The same authors noted that tyre-ruts re-directed small drainage channels and, in one case, partially drained a quaking bog.
5.12 One study (2++) found that peat compaction was significant along moderately and heavily used trails (6-12 and >12 vehicles per year respectively) but not along lightly used trails (1-6 vehicles per year) (Sparrow et al. 1978). The same study found that heavily used trails were completely denuded, whilst on less frequently used trails tall shrubs were the most injured plants. Sedges appeared to be the least susceptible plants to injury. Another study (2++) found that shrub injury rates were greatest during the first few passes by an all-terrain vehicle (Ahlstrand & Racine 1993). This study also found that the degree of sedge tussock compression and the amount of peat soil that became exposed along all-terrain vehicle trails increased in relation to vehicle weight. Research recommendations
5.13 Whilst we are confident of our conclusion that vehicle use on unmade tracks is damaging, there remain significant gaps in our understanding. There are two types of study that could provide a meaningful body of knowledge and, thus, evidence relating to sub-question 3.
1. Long-term monitoring of the surface and subsurface peat properties and conditions following disturbance by vehicles driving across the peat and with reference to pre-construction conditions. This study would be directly comparable with recommendation 1 of sub-question 1, and would ideally be combined with the recommendation for sub-question 2.
2. A controlled experiment would ideally be undertaken in which different types of vehicles would be driven across designated strips of peatland repeatedly, with monitoring and analysis of peat surface conditions being undertaken repeatedly as the number of vehicle passes increases. Such a study would ideally be undertaken as the set-up for recommendation 1 (above) and would provide support for conclusion 1.
3. Recommendation 1 for sub-question 1 (post-construction monitoring of a constructed track and the peat beneath) could be enhanced by incorporating vehicle movements over the track. This would efficiently address conclusion 2, but it may be better to have a separate part of a monitored track for this purpose.
Source of data: www.bv206.co.uk. Photo: A. Crowle, 2009.
Figure 8 An example of track widening (braiding) in the North Pennines. The vehicle used in this example was hagglund which is a tracked vehicle (Gross vehicle weight 4,800 kg, ground pressure 140 k Pa (0.14 kp/cm²)) The impacts of tracks on the integrity and hydrological function of blanket peat
Figure 9 Damage caused by a hagglund in the North Pennines 6 Do tracks (constructed or unmade) lead to enhanced erosion of blanket peat?
6.1 Particulate Organic Carbon (POC) and Dissolved Organic Carbon (DOC) are derived from the peat mass itself and are physical manifestations that erosion processes are taking place. This chapter summarizes the nature and strength of the evidence and identifies the conclusions reached based upon the evidence reviewed and recommendations for research in relation to this question.
Summary of evidence and conclusions
6.2 No studies were found that related solely to constructed tracks and enhanced erosion on blanket peat. One study (2++) recorded the release of carbon and sediment during the construction of a wind farm which included road construction. One study (2++) recorded the release of carbon and sediment on unmade tracks created by researchers.
6.3 There is evidence from a single study that footpaths (unmade tracks) on peat lead to the loss of vegetation and a reduction in plant species richness. Sphagnum moss cover was the lowest on the most recently used path. Vascular plants were slower to recover than Sphagnum moss (Robroek et al., 2010 [2++]).
6.4 There is evidence from a single study that the absence of vegetation cover on the unmade track led to an increase in the number of runoff events by which POC (carbon particles that are too big to be filtered) was lost from the track. The mean concentration of POC was significantly higher in the track that had been used most recently although the concentrations in surface runoff declined as Sphagnum cover increased (Robroek et al., 2010 [2++]).
6.5 There is evidence from a single study that over the period of the study (one year), the mean DOC (carbon particles that can be filtered) did not vary significantly between unmade tracks (Robroek et al., 2010 [2++]).
6.6 There is evidence from a single study that bulk density, which indicates the level of peat compression, was not affected by unmade track use (Robroek et al., 2010 [2++]).
6.7 There is evidence from a single study that the construction of a wind farm which included roads resulted in the significant increase in the loss of DOC from the site. There was no evidence that the concentration of DOC decreased over time. High levels of sediment continued to be recorded even after the construction activities had ceased. This was thought to reflect inadequate provision for the trapping of silt on the site (Grieve & Gilvear, 2008 [2++]).
6.8 From this we conclude that:
- The disruption of peat by tracks at either a surface or sub-surface level results in erosion and this erosion is on-going.
- We have not been able to quantify levels of erosion derived from a constructed track as there is no research that has addressed this subject in isolation. Analysis and evidence statements
6.9 One study (2++), investigating the impact of researchers walking upon unmade tracks on blanket bogs, found that track use clearly impacted upon the vascular plant community; this resulted in a lowering of species richness with a slower recovery of vascular plants compared with Sphagnum (Robroek et al., 2010). This study found that Sphagnum moss cover was affected by track type and was lowest on the most recently used track, although track type did not significantly affect non-Sphagnum mosses. These researchers also found that the most recently abandoned track had the highest bare peat cover and that the absence of vegetation resulted in a significant increase in the number of runoff events.
6.10 In relation to the carbon interactions arising from the use of unmade tracks by researchers, Robroek et al. (2010) found that over the period of study, mean DOC concentrations were not significantly different between tracks, whilst mean POC concentrations in the surface water of the most recently used track were significantly higher than the other two. The researchers also found that POC concentrations in the surface runoff decreased with increasing Sphagnum.
6.11 One study (2++) investigated the immediate impacts of the construction of a wind farm upon the fluxes of DOC (Grieve & Gilvear, 2008). This study did not separate the impacts of the track construction from the turbine base construction. The authors found significantly increased concentrations of DOC and sediment draining from the wind farm site. They found that even after the construction activities had ceased, the suspended sediment losses continued to be significantly elevated, which they explained in terms of a combination of fine silt washing into and from the track network, and ineffective provision for trapping sediment. The same study found that there was no evidence that the differences in DOC concentrations between the site and a control catchment decreased over time.
Research recommendations
6.12 There is a need to be able to quantify the amount and duration of erosion associated with constructed and unmade tracks on blanket peat:
- For unmade tracks, an appropriate study could be relatively easily established in conjunction with recommendations 1 and 2 of sub-question 3 by adding a detailed monitoring programme to establish amounts and rates of loss of vegetation cover, POC and DOC. However, it could also be done as a stand-alone study, ideally using an enhanced version of Robroek et al.’s (2010) methodology that includes vehicle tracks as well as footpaths.
- Erosion from, or associated with, constructed tracks should be explicitly investigated in conjunction with a new wind farm project, in association with the client and developer. This would enable a nested monitoring scheme focusing on varying lengths of road in varying topographic contexts (for example, planar slope, crossing drainage line) as well as (sub)catchment scale impacts or roads and ideally roads+turbine sites. This would provide knowledge of the primary sources of different types of sediment as well as the amounts and rates of erosion.
- An alternative to the previous recommendation would be to add detailed erosion monitoring to the detailed investigation of a designated research road, ie in conjunction with recommendation 1 of sub-question 1, although the conclusions would be limited compared with monitoring of an entire wind farm road network. 7 Concluding remarks and summary
7.1 The Tracks Review Group has considered the evidence and made the conclusions reported. This section summarises our findings in relation to the over-arching question. Also included within this section are our observations on wider issues that emerged from some of the evidence considered during this review.
7.2 The evidence presented in this Review has focused mainly upon the impacts of tracks and vehicle use upon blanket peat structure and hydrology with some studies looking at the impacts upon vegetation. We have found no studies of the impacts of tracks or vehicles upon the wider biodiversity of blanket peat or upon the associated ecosystem services.
7.3 The impact of tracks upon landscape was not reviewed. Images supplied by Peart (2012) and United Utilities (2012) indicate that in some cases this may require consideration.
7.4 The Review group noted that the impact of tracks was less well studied than other interventions in the uplands because it has only become a significant issue in recent years as demands on the upland environment, and the services it provides, have intensified.
7.5 The Review Group makes the following conclusions on the impacts of tracks upon the integrity and function of blanket peat based upon the evidence and wider issues identified in this document:
- Building upon peat compresses the peat and alters the drainage patterns on and around the peat, both within the peat body and over its surface. The level of compression and disruption depends upon the structure and wetness of the peat in question.
- Drainage of peat results in the settlement of the peat which disrupts the hydrology of the peat both within the peat body and over its surface.
- Drainage channels are damaging as they result in drying of the peat and may lead to instability of the peat depending upon their position within the slope or by channelling water into areas of structural weakness.
- Vehicle use on unmade tracks is damaging to the surface vegetation. The level of damage depends upon the type of vehicle and its weight, the number of journeys made and the wetness of the peat in question.
- The disruption of peat by tracks at either a surface or sub-surface initiates continuous erosion.
7.6 It should be noted that the impact of drainage upon blanket bogs is covered in the Evidence Review on blanket bog restoration. The Review Group felt it necessary to include within this review any activity that results in the blanket peat having a reduced capacity to store water or a reduced capacity for water to flow freely across the peat surface.
7.7 It is clear from the evidence considered within this review that peat is widely recognised as a challenging substrate from an engineering perspective. During the assessment of evidence it became apparent that there were several publications that are not intervention studies yet are relevant to the issue of construction of tracks upon peat: Countryside Commission for Scotland (1978), Land Use Consultants (2005), MacCulloch (2006), and Stoneman (1997). These could not be assessed formally. It would appear, however, from these publications that there is a good deal of experience of the construction techniques in relation to building tracks, but there was no evidence presented to support the methods being proposed. As a result, these publications were not included within the Review. A consistent theme throughout these publications is the requirement for some element of drainage as part of track construction. With respect to developing the evidence base there may be value in collating and gathering information drawn from well documented practice. 7.8 A recent development for vehicle use is an artificial membrane that is laid over the surface of the ground (for example, Figure 10). The use of this material on blanket bog is currently the subject of a research studentship based at Moor House National Nature Reserve and a neighbouring site and is due to report in 2015. This type of material may provide an important alternative to allowing access without the damage associated with unmade tracks, the hard engineering required for constructed tracks or indeed a hybrid solution where membranes might be used to reinforce sections of an unmade track, thus minimising the amount of work and cost associated with forming a track.
Figure 10 Above: A mesh track surface in the North Pennines. Below: The same track prior to putting the mesh surface in place. 8 Summary of research recommendations
8.1 These recommendations provide more detail than those presented within the main body of the report and are intended to be complementary.
Sub-question 1: Do tracks alter the structural integrity of blanket peat?
- Investigation of the variability of compaction impacts on the water storage capacity and permeability of peat.
- Development of techniques to measure peat strength and related properties, including how load is transmitted through the peat mass, to facilitate determination of the variability in these properties around the UK and how they may alter over time due to climate change.
- How excavation and construction of tracks affect peat stability and failure processes.
- Investigation of pre-loading techniques and calculations for blanket bogs during construction of upland tracks and whether pre-loading makes a difference in terms of impacts of tracks upon blanket bogs.
- The influence of water chemistry on the liquid limit and other geotechnical properties of peat.
- Specific research into tracks, their impacts and best practice for construction with regard to use on blanket peat.
- Effects of temperature (and loading) on settlement rates in blanket bog.
- Identification of slopes with characteristics that suggest they are susceptible to movement.
Sub-question 2: Do tracks alter the hydrological system of blanket peat at either surface of sub-surface level?
- The micro-scale hydrological processes within peat, particularly in response to loading and associated consolidation, and the field validation of loading effects predicted from laboratory results.
- Spatial and temporal patterns of runoff in, on and around tracks.
- Investigations into the impacts of different types of track and ditch construction on the hydrology of blanket peat and the role of ditches in creating instability in peat.
- The effects of pre-loading of blanket peat as a construction strategy for new tracks.
- Settlement rates of tracks on blanket bog and the associated impacts on hydrology.
Sub-question 3: Do type of vehicle and usage influence the impact of the track upon either the structural integrity or hydrology of the blanket peat?
- Long-term study to determine the extent of hydro-geomorphic processes and impacts on streamflow, water quality and aquatic habitats as a result of vehicle use around watersheds or on blanket bog.
- Quantification of the nature and extent of changes to drainage systems on blanket bog following vehicle use and recovery rates of mire/flush vegetation post-damage.
- Establish whether altered drainage systems recover naturally?
- Investigate whether there is a threshold for vehicle use on blanket bogs and if so, how to assess it?
- Quantify the impact of tracked vs wheeled vehicles on blanket peat vegetation, hydrology and structure and the nature and extent of rutting. Sub-question 4: Do tracks lead to enhanced erosion of blanket peat?
- The spatial and temporal distribution of erosion and types of erosion, in relation to the type of track (ie constructed or unmade).
# 9 Glossary of terms
This glossary is set out to provide definition to terminology used in this report.
| Term | Definition | |------|------------| | Acrotelm | The thin aerobic zone at the surface of the mire, underlain by the thick anaerobic zone called the catotelm. Literally ‘top of marsh’ and ‘bottom of marsh’, respectively, from the Greek (Hobbs, 1986; after Gore, 1983). | | Bare peat | Term used to describe areas of exposed peat. | | Blanket peat (aka) Blanket (bog) peat | Peat deposits formed by blanket bogs, ie bogs that grow outwards from initial accumulation sites (for example, topographic depressions) to cover the (mineral) land surface like a blanket. | | Bog | A mire or peatland that derives all its water and nutrients from precipitation (ie rain, snow or mist). | | Bog burst / bogflow / bog slide / peat slide / peaty-debris slide / peat flow | Types of peat landslides, historically used interchangeably but more recently explicitly defined (Dykes and Warburton, 2007). See landslide. | | Catotelm | See acrotelm. | | Compression / consolidation | Often used interchangeably to refer to the process of adjustment of a soil (or peat) to the application of a vertical load, involving expulsion of water from pore spaces and structural rearrangement of particles (including fibres) into a more densely packed arrangement. Strictly, compression is a short-term effect in which the loading and associated changes are transient, and the soil (or peat) recovers its original state after the load is removed, and consolidation is a long-term, slow ongoing process leading to effectively permanent change (Selby, 1993). | | Compressive strength | Measure of the resistance to a vertical compressive load. | | Diplotelmic (of active peat-forming bogs) | Having a two-layered structure comprising an acrotelm and a catotelm. | | Hagg | (Swedish) natural gully in a bog. | | Humification | Degree of decomposition of the plant material that constitutes the peat. | | Hydraulic conductivity | A measure of the ease with which soil pores permit water movement through the soil, also known as the coefficient of permeability. It is the rate of flow of water per unit area of soil when under a unit hydraulic gradient. If the soil (or peat) is saturated, the hydraulic conductivity is equivalent to permeability (Selby, 1993). | | Interventions | In the context of this Review, interventions are treatments that have been applied in any individual study, for example, the number of times a vehicle passed over an experimental area or the varying degrees of compression on a peat sample in a laboratory test. | | Landslide / slope failure / mass movement | Downhill movement of soil, rock, peat or any other geological material as a result of the downslope gravitational force exceeding the minimum available (shear) strength of the materials on the slope. | | Term | Definition | |----------------------|-----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------| | Liquid limit | The water content at which the behaviour of a material in response to stress changes from being plastic to liquid in character. This is one of the Atterberg Limits, ie index (indicator) properties of soils determined using precisely defined standard tests. | | Macropores | Pore spaces large enough that gravity drainage will dominate water movement, commonly taken as >0.06 mm diameter. See pipes. | | Meta-analysis | Methods and techniques for comparing and contrasting the results from different studies with the aim of identifying patterns of similarity or differences. | | Micropores | Pore spaces in which water will be retained by small-scale forces against the pull of gravity. | | Mire | A wetland that supports peat-forming vegetation. Some authors use this term to include wetlands on mineral soils. See also bog and fen. | | Moorland | A term use to describe unenclosed upland areas dominated by a range of semi-natural vegetation types. Not synonymous with peatlands. | | Muskeg | Canadian Indian word for organic terrain, mire and peat (Hobbs, 1986; after Gore, 1983). | | Oligotrophic | Mineral-poor. | | Ombrogenous | (peat or vegetation) formed under ombrotrophic conditions. | | Ombrophilous | (vegetation) tolerating a predominantly rainwater influence. | | Ombrotrophic | (supply of nutrients) exclusively from precipitation thereby producing oligotrophic conditions. | | Peat | Decomposing remains of dead plants and soil organisms that have accumulated in, or across, favourable parts of the landscape in terms of the availability of excess water to maintain saturation (waterlogging). | | Peat deposit | Any accumulation of peat, for example, blanket bog, raised bog, etc.; also a term used specifically by the British Geological Survey to mean a peat body at least 1 metre thick. | | Peat soil | In the UK soil classification system, a type of soil which includes all organic-rich soils. | | Permeability | See hydraulic conductivity. | | Pipes | Natural subsurface conduits analagous to cave passages in limestone. Hydrologically they behave as macropores, but a few can be large enough in places for a person to enter. | | Pores | The spaces, or voids, between solid particles within a soil (or peat) that can contain air and/or water. Definitions and effects of hydrological processes are complicated in peat because some water is held within plant cells (ie conceptually the ‘solid’ particles) in Sphagnum-dominated peat. | | Term | Definition | |-------------------------------------------|-----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------| | Porosity | The proportion of the total soil (or peat) volume that comprises pore spaces. | | Primary consolidation | Term used in peat engineering (Hobbs, 1986) to describe the initial stage of rapid drainage in response to the applied load. | | Radforth peat | A term used in North America (primarily Canada) to refer to peat of low or insignificant mineral content consisting of mostly fibrous material (stems, leaves, fibers, root threads, rhizoids, etc.). | | Runoff | The proportion of rainwater that is unable to infiltrate into the soil (or peat) and is instead transferred quickly towards drainage channels as ‘free gravity flow’ (ie over the surface or through subsurface pipes and other larger macropores). It also includes rapid downslope flow through the highly permeable uppermost layer of the soil (or peat), if there is any. | | Saturation | All of the pore spaces being full of water. A saturated soil (or peat) cannot contain any additional water. This may refer to a specific limited zone within a soil (or peat), for example, below the water table. | | Strength | Ability of a material (for example, peat) to resist deformation by compressive, shear or tensile stresses. | | Shear strength | Measure of the resistance to a shear stress, ie opposing lateral stresses such as when trying to slide a pie off a baking tray (the friction between the base of the pie and the tray provides the shear strength in this example). | | Tensile strength | Measure of the resistance to a tensile stress, ie a ‘pulling’ force such as experienced by the middle of the rope in a tug-of-war. | | Secondary consolidation | Term used in peat engineering (Hobbs, 1986) to describe the subsequent long-term slow structural rearrangement of particles with further expulsion of water from micropores and from within plant cells. | | Raised bog | Accumulation of peat on a lowland floodplain or in a shallow topographic basin that eventually grows higher than the influence of any surface runoff or groundwater so as to be entirely maintained by the excess of precipitation over evapotranspiration. This rainwater-fed upper part of the deposit comprises ombrotrophic bog peat. | | RCT (Randomised Control Trial) | From clinical studies, where the selected subjects of a study are randomly allocated one of the treatments (including a zero treatment or ‘control’ option). | | Voids | Small cavities in the soil, occupied by air or water or both. | | Waterlogging | Permanent or prolonged temporary saturation of the ground resulting from high precipitation and poor drainage, or a more or less constant supply of groundwater and/or surface runoff. | | Water table | the upper surface of a zone of saturation in the ground (for example, within a peat deposit). | Glossary references
DYKES, A.P. & WARBURTON, J. 2007. Mass movements in peat: a formal classification scheme. Geomorphology, 86, 73-93.
GORE, A.J.P. 1983. Introduction. Ecosystems of the World 4,4. Mires: Swamp, Bog, Fen and Moor. Elsevier, Oxford.
HOBBS, N.B. 1986. Mire morphology and the properties and behaviour of some British and foreign peats. Quarterly Journal of Engineering Geology, 19, 7-80.
SELBY, M.J. 1993. Hillslope Materials and Processes (2nd Edition). Oxford University Press, Oxford. 10 Additional references used
EVANS, M. G., BURT, T. P., HOLDEN, J. & ADAMSON, J. K. 1999. Runoff generation and water table fluctuations in blanket peat: evidence from UK data spanning the dry summer of 1995. J. Hydrol. 221, 141–160.
HOLDEN, J. 2011. Peatland hydrology and carbon release: why small-scale process matters. Phil. Trans. R. Soc. A 2005 363, 2891-2913. Appendix 1 Summary of studies by review question, study type, quality and location
Table A Summary of studies by review question, study type, quality and location
| Do tracks alter the structural integrity of blanket peat? | Category & quality | Location of study | |---------------------------------------------------------|---------------------|-------------------| | Publications relating to peat consolidation | | | | Alakukku (2 papers) investigated compaction by vehicle movements after 3 and 9 years respectively. | 2++ | Finland | | Alakukku, L. 1996a & b. | | | | Barden proposed a simplified model for predicting primary and secondary consolidation of clay and peat. | 2+ | Great Britain | | Barden, L. 1968. | | | | Barry et al. proposed a road construction method that was subject to specific environmental constraints. | 2+ | Sumatra | | Barry, A.J, Brady, M.A. & Younger, J. S. 1992. | | | | Berry carried out a brief review of consolidation theory on peat and developed calculations of preloading times and weights on peat to be used for housing development. | 2++ | Great Britain | | Berry, P. L. 1983. | | | | Berry & Poskitt reviewed published data and along with inclusion of their own data proposed a method of engineering assessment in the field of the consolidation of peat. | 2+ | Great Britain | | Berry, P. L. & Poskitt, T. J. 1972. | | | | Berry & Vickers reviewed and tested the theory of consolidation of fibrous peat. | 2+ | Great Britain | | Berry, P. L. & Vickers, B. 1975. | | | | Mesri & Ajlouni offered a quantification of consolidation and compression of fibrous peats. | 2+ | North America | | Mesri, G. & Ajlouni, M. 2007. | | | | Blackwood and Vulova reported on the construction of a metalled “floating” road. | 2+ | North America | | Blackwood, T. W. & Vulova, C.V. 2006. | | | | Munro reported on the current practices for construction over peatlands in Northern Europe. | 4+ | Scandinavia | | Munro, R. 2004. | | | | Fox & Edil investigated the effect of stress and temperature on secondary compression of peat. | | |
Table continued... | Do tracks alter the structural integrity of blanket peat? | Category & quality | Location of study | |--------------------------------------------------------|---------------------|-------------------| | Fox, P. J. & Edil, T. B. 1996. | 2+ | North America | | **Bradof** investigated the impacts of road building and drainage upon peat structure and vegetation. | | | | Bradof, K.L. 1992. | 2++ | North America | | **Hobbs** reviewed testing procedures for predicting settlement in peat. | | | | Hobbs, N.B. 1986. | 2++ | Great Britain | | **Lefebvre et al.** investigated settlement rates in peat under construction. | | | | Lefebvre, G., Langlois, P., Lupien, C. & Lavallee, J.-G. 1984. | 2++ | North America | | **Landva & Rochelle** studied the settlement of peat. | | | | Landva, A.O. and La Rochelle, P. 1983. | 2+ | North America | | **Casagrande** investigated construction techniques in relation to embankments on peat. | | | | Casagrande, L. 1966. | 2+ | North America | | **Rahman et al.** studied the mechanical properties of peat in relation to vehicle use. | | | | Rahman, A., Yahya, A., Zodaidie, M., Ahmad, D, Ishak, A & Kheiralla, A.F. 2004. | 2++ | Malaysia | | **Lake** investigated the problems of constructing roads on peat. | | | | Lake, J. R. 1961. | 2+ | Great Britain | | **Gunn** reported on the issues around the construction of a 3km track on blanket bog. | | | | Gunn, J. 1998. | 4+ | Ireland |
**Publications relating to peat stability**
**Dykes and Jennings** investigated causes of peat slope failures and mass movements in Ireland in August 2008. They also published a reply to a response to their paper.
Dykes, A. P. & Jennings, P. 2011. 2++ Ireland
**Dykes & Warburton** investigated causes of peat slope failures at Dooncarton.
Dykes, A. P. & Warburton, J. 2008. 2++ Ireland
**Dykes et al.** investigated causes of landslides on Cuilcagh Mountain.
Dykes, A. P., Gunn, J., Convery. 2008. 2++ Ireland
**Dykes** investigated tensile strength of peat and its relationship to specific blanket bog failures.
Dykes, A. P. 2008a. 2++ Ireland
**Dykes & Kirk** reviewed slope instability and mass movements.
Dykes, A. P. & Kirk, K.J. 2006. 2++ Ireland
**Yang & Dykes** investigated the procedure for determining the liquid limit as an index property that may explain some peat failures. | Do tracks alter the structural integrity of blanket peat? | Category & quality | Location of study | |--------------------------------------------------------|---------------------|-------------------| | Yang, J. & Dykes, A. P. 2006. | 2++ | Ireland | | **Cola & Cortellazzo** established the shear strength of two peat soils. | | | | Cola, S. & Cortellazzo, G. 2005. | 2++ | Italy | | **Warburton et al.** reviewed the evidence for a link between hillslope hydrology and mass movements in areas of blanket peat. | | | | Warburton, J., Holden, J. & Mills, A. J. 2004. | 2+ | Great Britain | | **Dykes & Kirk** examined the role of drainage and pipes in a peat slide the trigger of the slide. | | | | Warburton, J., Holden, J. & Mills, A. J. 2004. | 2++ | Ireland | | **Carling** investigated mechanisms of peat failures in the North Pennines. | | | | Tomlinson, R.W. & Gardiner, T. 1982. | 2+ | Ireland | | **Hanrahan** investigated causes of a road failure on peat. | | | | Hanrahan, E.T. 1964. | 2+ | Ireland | | **Wilson & Hegarty** investigated causes of peat slides. | | | | Wilson, P. & Hegarty, C. 1993. | 2+ | Ireland | | **Lindsay & Bragg** reviewed issues around the Derrybrien peat slide. | | | | Lindsay, R, & Bragg, O. 2005. | 4+ | Ireland | | **Dykes** reviewed the causes of peat slope failure. | | | | Dykes, A. P. 2008b. | 2++ | Ireland | | **Astron** provided guidance on peat landslide hazard and risk assessments. | | | | Astron, 2006. | 4+ | Great Britain | Do tracks alter the hydrological system of blanket peat at either surface or sub-surface level?
| Author(s) | Category & quality | Location of study | |-----------|--------------------|-------------------| | Barry et al. | 2+ | Sumatra | | Barry, A. J., Brady, M.A. & Younger, J. S. 1992. | | | | Ruseckas | 2+ | Russia | | Ruseckas, J. 1998. | | | | Charman & Pollard | 2++ | Great Britain | | Charman, D. J. & Pollard, A. J.1995. | | | | Bradof | 2++ | North America | | Bradof, K.L. 1992. | | | | Lindsay & Bragg | 4+ | Ireland | | Lindsay, R, & Bragg, O. 2005. | | | | Publications relating to drainage | | | | Lane & Milledge | 2++ | Great Britain | | Lane, S. N. & Milledge, D. G. 2012. | | | | Lindsay | 4+ | Ireland | | Lindsay, R. 2007. | | | | Dykes & Kirk | 2++ | Ireland | | Dykes, A. P. & Kirk, K.J. 2006. | | | | Dykes & Kirk | 2++ | Ireland | | Dykes, A. P. & Kirk, K. J. 2001. | | | | Publications relating to the consolidation of peat | | | | Barden | 2+ | Great Britain | | Barden, L. 1968. | | | | Berry | 2++ | Great Britain | | Berry carried out a brief review of consolidation theory on peat and developed calculations of preloading times and weights on peat to be used for housing development. | | | | Berry, P. L. 1983. | | | | Berry & Poskitt | 2+ | Great Britain | | Berry & Poskitt, T. J. 1972. | | | | Berry & Vickers | 2+ | Great Britain | | Berry, P. L. & Vickers, B. 1975. | | |
Table continued... Do tracks alter the hydrological system of blanket peat at either surface or sub-surface level?
| Category & quality | Location of study | |--------------------|-------------------| | Hobbs reviewed testing procedures for predicting settlement in peat. | 2++ | Great Britain | | Mesri & Ajlouni offered a quantification of consolidation and compression of fibrous peats. | 2+ | North America |
Hobbs, N.B. 1986.
Mesri, G. & Ajlouni, M. 2007. Do type of vehicle and usage influence the impact of the track upon either the structural integrity or hydrology of the blanket peat?
| Study | Category & quality | Location of study | |--------------------------------------------|--------------------|-------------------| | **Arp & Simmons** assessed impacts of off-road vehicles on watershed processes. | 2+ | North America | | Arp, C.D. & Simmons, T. 2012. | | | | **Robinson et al.** reported on the damage caused by motorcycles and quad-bikes. | 3+ | Great Britain | | Robinson, L. M., Corner, R. D. & Roberts, F. J. 2006. | | | | **Nugent et al.** aimed to quantify the levels of peat compaction and surface rutting due to excessive passes by typical wood harvesting and extraction machines establish threshold limits for use of machine traffic. | 2++ | Ireland | | Nugent, C., Kanali, C., Owende, M.O., Nieuwenhuis, M. & Ward, S. 2003. | | | | **Wong et al.** developed a model for characterizing muskeg properties in relation to vehicle use. | 2+ | North America | | Wong, J.Y., Garber, M., Radforth, J. R. & Dowell, J. T. 1979. | | | | **Sparrow et al.** made assessments of the impacts of off-road vehicles on soils (mineral and peat) and vegetation. | 2++ | North America | | Sparrow, S. D., Wooding, F. J. & Whiting, E. H. 1978. | | | | **Ahlstrand & Racine** investigated the response of vegetation to off-road vehicle use. | 2++ | North America | | Ahlstrand, G. M. & Racine, C. H. 1993. | | | | **Saarilahti** investigated rut formation on peat as a result of forest harvesting. | 2+ | Finland | | Saarilahti, M. 1997. | | | | Do tracks lead to enhanced erosion of blanket peat? | Category & quality | Location of study | |--------------------------------------------------|--------------------|-------------------| | **Grieve & Gilvear** investigated the impacts of disturbance due to construction a wind farm on the fluxes of dissolved organic carbon and suspended sediment in streams during the immediate post construction phase. | 2++ | Great Britain | | Grieve, I. & Gilvear, D. (2008). | | | | **Robroek et al.** investigated the impact of tracks upon blanket peat vegetation and hydrochemistry. | 2++ | Great Britain | | Robroek, B. J. M, Smart, R. P. & Holden, J. 2010. | | | Appendix 2 Full citation list for publications included within the review
Alakukku, L. 1996a. Persistence of soil compaction due to high axle load traffic. I. Short-term effects on the properties of clay and organic soils. *Soil & Tillage Research*, 37, 211-222.
Alakukku, L. 1996b. Persistence of soil compaction due to high axle load II. Long-term effects on the properties of fine-textured and organic soils. *Soil & Tillage Research*, 37, 223-238.
Ahlstrand, G. M. & Racine, C. H. 1993. Response of an Alaska, USA, Shrub-tussock community to selected all-terrain vehicle use. *Arctic and Alpine Research*, 25, 142-149.
Arp, C.D. & Simmons, T. 2012. Analyzing the Impacts of Off-Road Vehicle (ORV) Trails on Watershed Processes in Wrangell-St. Elias National Park and Preserve, Alaska. *Environmental Management*, 49, 751-766.
Astron. 2006. Peat landslide hazard and risk assessments best practice guide for proposed electricity generation developments. Edinburgh, Scottish Executive.
Barden, L. 1968. Primary and Secondary Consolidation of Clay and Peat. *Geotechnique*, 18, 1-24.
Barry, A. J., Brady, M.A. & Younger, J. S. 1992. Roads on Peat in East Sumatra. *Geotechnical Engineering*, 23, 145-160.
Berry, P. L. & Vickers, B. 1975. Consolidation of Fibrous Peat. *Journal of Geotechnical Engineering Division*, 101, 741-753.
Berry, P. L. 1983. Application of consolidation theory for peat to the design of a reclamation scheme by preloading. *Quarterly Journal of Engineering Geology*, 16, 103-112.
Berry, P. L. & Poskitt, T. J. 1972. The consolidation of peat. *Geotechnique*, 22, 27-52.
Blackwood, T. W. & Vulova, C.V. Geogrid reinforced embankment constructed over peat soils in Clark County, Washington: Design and field performance. *Proceedings of the Airfield and Highway Pavement*, 317-328.
Bradof, K.L. 1992. Impact of ditching and road construction on Red lake Peatland. In: *The Patterned peatlands of Minnesota*. Pages 173-185. Minneapolis University of Minnesota.
Carling, P.A. 1986. Peat slides in Teesdale and Weardale, Northern Pennines, July 1983: Description and Failure Mechanisms. *Earth Surface Processes and Landforms*, 11, 193-206.
Casagrande, L. 1966. Construction of embankments across peaty soils. *Proceedings Boston Society of Civil Engineers*, 73, 273-317.
Charman, D. J. & Pollard, A. J. Long-term vegetation recovery after vehicle track abandonment on Dartmoor, SW England, UK. *Journal of Environmental Management*, 45, 73-85.
Cola, S. & Cortellazzo, G. 2005. The shear strength behaviour of two peaty soils. *Geotechnical and Geological Engineering*, 23: 679-695.
Countryside Commission for Scotland. 1978. Vehicular Tracks in Upland Scotland.
Dykes, A. P. & Jennings, P. 2011. Peat slope failures and other mass movements in Western Ireland. *Quarterly Journal of Engineering Geology*, 44, 5-16.
Dykes, A. P. & Warburton, J. 2008. Failure of peat-covered hillslopes at Dooncarton Mountain, Co. Mayo, Ireland: Analysis of topographic and geotechnical factors. *Catena*, 72, 129-145.
Dykes, A. P., Gunn, J., Convery. 2008. Landslides in blanket peat on Cuilcagh Mountain, northwest Ireland. *Geomorphology*, 102, 325-340. Dykes, A. P. 2008a. Tensile strength of peat: laboratory measurement and role in Irish blanket bog failures. *Landslides*, 5, 417-429.
Dykes, A. P. 2008b. Natural and anthropogenic causes of peat instability and landslides. In: *After Wise Use - The Future of Peatlands*. Farrell, C & Feehan, J (Eds). Proceedings of the 13th International Peat Congress (Volume1). International Peat Society, Jyvaskyla, pp 39-42.
Dykes, A. P. & Kirk, K.J. 2006. Slope instability and mass movements in peat deposits. In: *Peatlands: Evolution and Records of Environmental and Climate Changes*. Martini, I P, Martinez Cortizas, A & Chesworth, W (Eds). Elsevier, Amsterdam, pp 377-406.
Dykes, A. P. & Kirk, K. J. 2001. Initiation of a multiple peat slide on Cuilcagh Mountain, Northern Ireland. *Earth Surface Processes and Landforms*, 26, 395-408.
Fox, P. J. & Edil, T. B. 1996. Effects of stress and temperature on secondary compression of peat. *Canadian Geotechnical Journal*, 33, 405-415.
Grieve, I. & Gilvear, D. Effects of wind farm construction on concentrations and fluxes of dissolved organic carbon and suspended sediment from peat catchments at Braes of Doune, central Scotland. *Mires and Peat*, 4, 1-11.
Gunn, J. 1998. EC Contract No. B4-3200/94/770. Conservation of active blanket bog in Scotland and Northern Ireland - Sub-project technical report on construction of access track.
Hanrahan, E.T. 1964. A road failure on peat. *Geotechnique*, 14, 185-202.
Hobbs, N.B. 1986. Mire morphology and the properties and behaviour of some British and foreign peats. *Quarterly Journal of Engineering Geology*, 19, 7-80.
Lake, J. R. 1961. Investigations of the problem of constructing roads on peat in Scotland. Proceedings of the 7th Muskeg Research Conference. National Research Council of Canada.
Landva, A.O. and La Rochelle, P. 1983. Compressibility and Shear Characteristics of Radforth Peats. *Testing of Peat and Organic Soils*, Special Publication No. 820. pp157-191.
Land Use Consultants. 2005. Constructed tracks in the Scottish Uplands. SNH.
Lane, S. N. & Milledge, D. G. 2012. Impacts of upland open drains upon runoff generation: a numerical assessment of catchment-scale impacts. *Hydrological Processes* DOI: 10.1002/hyp.9285.
Lefebvre, G., Langlois, P., Lupien, C. & Lavallee, J.-G. 1984. Laboratory testing and in situ behaviour of peat as embankment foundation. *Canadian Geotechnical Journal*, 21, 322-337.
Lindsay, R. 2007. Windfarms and Peat: conflicts from a confluence of conditions. *International Mire Conservation Group*. Issue 2007/4.
Lindsay, R, & Bragg, O. 2005. *Wind farms and blanket peat a report on the Derrybrien bog slide. 2nd Edition*. The Derrybrien Development Cooperative Ltd.
Long, M., Boylan, N., Dykes, A.P. & Jennings, P. 2011. Discussion of “Peat slope failures and other mass movements in western Ireland, August 2008” by A. P. Dykes & P. Jennings. *Quarterly Journal of Engineering Geology and Hydrogeology*, 44, 491-494.
Long, M., Jennings, P. & Carroll, R. 2011. Irish Peat Slides 2006 - 2010. *Landslides*, 8, 391-401.
MacCulloch, F. 2006. *Guidelines for the risk management of peat slips on the construction of low volume/low cost roads over peat*. Forestry Commission Scotland.
Munro, R. 2004. *Dealing with bearing capacity problems on low volume roads constructed on peat*. Roadex II, Northern Periphery, The Highland Council.
Nugent, C., Kanali, C., Owende, M.O., Nieuwenhuis, M. & Ward, S. 2003. Characteristic site disturbance due to harvesting and extraction machinery traffic on sensitive forest sites with peat soils. *Forest Ecology and Management*, 180, 85-98.
Peart, A.E. Emailed evidence to NE Uplands Evidence Review. Rahman, A., Yahya, A., Zodaidie, M., Ahmad, D, Ishak, A & Kheiralla, A.F. 2004. Mechanical properties in relation to vehicle mobility of Sepang peat terrain in Malaysia. *Journal of Terramechanics*, 41, 25-40.
Robinson, L. M., Corner, R. D. & Roberts, F. J. 2006. Damage to the Northern Pennines by use of Motorcycles and Quad-bikes. *BSBI News*, 103, 5-9.
Robroek, B. J. M, Smart, R. P. & Holden, J. 2010. Sensitivity of blanket peat vegetation and hydrochemistry to local disturbances. *Science of the Total Environment*, 408, 5028-5034.
Ruseckas, J. 1998. Change of the water-physical properties of soil of peatland forests under the influence of drainage. *Miskininkyste*, 1, 72-80.
Saarilahti, M. 1997. Rut formation on peatland. *Suoseura*, 48, 51-54.
Sparrow, S. D., Wooding, F. J. & Whiting, E. H. 1978. Effect of off-road vehicle traffic on soils and vegetation in the Denali Highway region of Alaska. *Journal of Soil and Water Conservation*, Jan.-Feb., 20-27.
Stoneman, R. & Brooks, S (Eds). 1997. Methods and techniques for Management Section 5.6 Access Provision. In: *Conserving Bogs The Management Handbook*. Edinburgh: The Stationery Office.
Tomlinson, R.W. & Gardiner, T. 1982. Seven bog slides in the Slieve-an-orra hills, County Antrim. *J. Earth Sci. R. Dubl. Soc.*, 5, 1-9.
United Utilities, submission to Natural England Upland Evidence Review.
Warburton, J., Holden, J. & Mills, A. J. 2004. Hydrological controls of surficial mass movements in peat. *Earth Science Reviews*, 67, 139-156.
Wilson, P. & Hegarty, C. 1993. Morphology and causes of recent peat slides on Skerry Hill, Co. Antrim, Northern Ireland. *Earth Surface Processes and Landforms*, 18, 593-601.
Wong, J.Y., Garber, M., Radforth, J. R. & Dowell, J. T. 1979. Characterization of the mechanical properties of muskeg with special reference to vehicle mobility. *Journal of Terramechanics*, 16, 163-180.
Yang, J. & Dykes, A. P. 2006. The liquid limit of peat and its application to the understanding of Irish blanket bog failure. *Landslides*, 3, 205-216. Appendix 3 Additional photographs
Plate A Mountain bike and foot path damage in the West Pennines. Photo: United Utilities.
Plate B Vehicle damage in the West Pennines. Photo: United Utilities. Plate C An example of track damage submitted to the Uplands Evidence Review. Photo: A. Peart, 2008.
Plate D An example of track damage submitted to the Uplands Evidence Review. Photo: A. Peart, 2007. Natural England is here to secure a healthy natural environment for people to enjoy, where wildlife is protected and England’s traditional landscapes are safeguarded for future generations.
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70acda44404e3b6214dac8e3c07edfd5cb236411 | Blanket Bog Track Trial Moor House NNR
in Partnership Fig 1. Braiding and rutting damage to peatland with no protective surface. Context
Blanket bog is a wetland habitat that requires specific conditions to develop: more than 160 “rain” days per year, low evapotranspiration, relatively low fluctuations between annual summer maximum and winter minimum temperatures and underlying geology that allow the peat to spread and “blanket” the landscape.
Not surprisingly, these conditions are not common on a global scale which is why this habitat is globally rare. The UK holds roughly 15% of the world’s blanket bog and the importance of this habitat for plants and animals has been known for a long time. More recent research has shown that this habitat can influence raw drinking-water quality, freshwater invertebrate communities and the setting down/release of carbon into the atmosphere. We are unsure how a warming climate will impact upon the carbon stored within blanket bog. However we know from studies of the peat cores that blanket bog has the ability to withstand some changes in climate as a result of individual plant and moss species different responses to water saturation, with for example, species that prefer drier conditions dominating in periods of reduced rainfall. The less damage that occurs to blanket bog hydrology on any given site through anthropogenic effects, the greater the likelihood that the area in question will be in a condition to respond naturally to changes in temperature and patterns of rain-fall that are expected under a warming climate.
The importance of deep peat as a carbon store and potential to sequester further carbon if in good health has become a major agenda item in the English uplands. The Moorland Association (MA), Natural England (NE) and peatland partnerships like North Pennines AONB Partnership have been working to improve peatland functionality by repairing oxidising and eroding bare peat, blocking gullies and grips to raise the water table and reduce erosion as well as filter the water for free and slow the flow off moorland to attenuate peak flows and mitigate flooding. This work across blanket bog habitat improves eco-hydrology, but also makes the moorland wetter and more fragile and prone to damage with use.
The uplands have multiple uses and are managed for sheep grazing, grouse shooting, and other leisure and visitor activities such as fell running, walking, mountain-biking and orienteering. Vehicle access is often required for day to day shepherding and grouse moor management activities like predator control, vegetation management, putting out grit for grouse to aid digestion and getting shooting visitors and their equipment to areas of the moor on shoot days. Access is also required to work on peatland restoration areas.
Routes and tracks created and maintained for land use are often subsequently also used by leisure visitors as they provide an easier aid to navigate otherwise difficult Open Access terrain. They can also facilitate emergency services to reach casualties in inhospitable places as well as to get wildfire fighting personnel and equipment out to hard to reach places. Vehicle access across blanket bog is therefore essential for land use. However, stone constructed tracks on deep peat have been found to result in compression and compaction of the peat impeding natural hydrological flow.
It is in no ones’ interests to damage peat bog surfaces or their properties and a pragmatic solution to help balance the conservation, economic and social land use needs of these areas is required. With increased knowledge of the hydrological function of deep peat and factors that affect its health, a partnership of MA, NE and North Pennines AONB Partnership investigated novel track technology including wooden and mesh surfaces to help prevent damage. The Mesh and Wooden Track Trial
The MA, NE and North Pennines AONB sponsored a research project carried out by a PhD student from the University of Leeds on the Moor House - Upper Teesdale National Nature Reserve.
The site is deep peat with healthy functioning blanket bog in favourable condition. Its Water Table Depth (WTD) is typically at or within 10cm of the surface for more than nine months of the year which supports a representative assemblage and abundance of blanket bog plant species.
Given the sensitivity of the site it is perfect for testing new approaches to and measuring the impact of vehicle track design on blanket bog.
The experimental design included:
- Plastic mesh track laid and driven on by an argocat (but also suitable for quad bikes)
- A heavier duty wooden construction suitable for heavier vehicles such as 4x4s
This track was constructed from hardwood planks spaced to leave a gap the same width as the plank connected together with folded steel links which also act as the main running surface. A plastic grid was spread on the cut vegetation to spread the load of the plank construction laid on top. John Carrick designed, supplied and laid the track free of charge for which the project partners are very grateful.
- A section that remained unsurfaced which was also driven on (albeit light use) by the argocat.
The tracks were laid in Summer 2013 and allowed to settle in, on the advice of the track manufacturers, before driving started in Spring 2014.
Vehicle use of the tracks followed a variable driving schedule until Autumn 2015, incorporating five different sections, each representing a different intensity of track use. These were designed to mimic use for moorland management on a working driven grouse moor. This included sections of 10 passes per week, both loaded and unloaded from July to October. A range of peat physical and hydrological properties, and vegetation characteristics were measured before and after the tracks were laid and then during the driving.
Fig 2 (opposite top) shows the layout of the tracks, level of use and topographical positions over the contours.
Table 1 (opposite bottom) shows the mesh track divided into five sections and the different rates of driving. Table 1 Information on treatments included in the intensive study at Moor House. Topographic position coding; S1 – Top-slope, S2 – Mid-slope, S3 – Bottom-slope.
| Treatment | Weekly Usage (passes over track per week) | Total No. Passes | Topographic Positions | Track Type | Vehicle Type | Additional Information | |-----------|------------------------------------------|------------------|-----------------------|------------|--------------|------------------------| | PWEEK.AL | 2 (April - End July, October - April) 10 (End July - October) | 412 | S1,S2,S3 | Plastic Mesh | Agrocat | | | PWEEK.AH | 2 (April - End July, October - April) 10 (End July - October) | 412 | S1,S2,S3 | Plastic Mesh | Agrocat | Vehicle Weighted (End July to October) | | PWEEK | 2 | 156 | S1,S2,S3 | Plastic Mesh | Agrocat | | | PMONTH | 0.5 | 38 | S1,S2,S3 | Plastic Mesh | Agrocat | | | PDELAYED | 2 (from February 2015) | 76 | S1,S2,S3 | Plastic Mesh | Agrocat | | | U | 0.5 (stopped April 2015) | 24 | S1,S2,S3 | Unsurfaced | Agrocat | Driving over vegetation, no surface track | | W | 10 | 780 | S3 | Wooden Beams | 4x4 Vehicle | 30m length of track | | C | 0 | 0 | S1,S2,S3 | Unsurfaced | None | No driving or track, Undisturbed hillslope control |
Fig 2 shows the layout of the tracks, level of use and topographical positions over the contours. Site Preparation for laying of track surfaces
Fig 3. Route of mesh track was cut.
Fig 4. Brash was collected and blown to the side.
Fig 5. Mesh was rolled out.
Fig 6. Mesh was pinned in place with 300mm steel U shaped pins.
Photos courtesy of A. Lockett and K. McKendrick-Smith (2013). Fig 7. Wooden track being laid after vegetation was cut and removed and plastic grid rolled out.
Table 2. Track surfaces
| Characteristics | Plastic Mesh Track | Articulated Wooden Track | |---------------------|-------------------------------------|----------------------------------------------------------------| | Total Length | ~1.5 km | ~0.3 km | | Manufacturer | Terram | John Carrick | | Material | UV Stabilised HDPE | Oak Planks (n = 94), Steel Links (n = 186), HDPE Underlay | | Dimensions | 2.5 m x 15 m (section size) | 3.2 x 0.15 x 0.1 m (single plank) | | | 0.0145 m (thickness) | 0.45 x 0.28 x 0.1 m/thickness - 0.05 m (single steel link) | | Weight | 2 kg m⁻² | 184 kg m⁻² | Table 3. A range of peat physical and hydrological properties, and vegetation characteristics were measured before and after the tracks were laid and then during the driving.
| Properties Measured | Importance to blanket bog functions | |--------------------------------------|------------------------------------------------------------------------------------------------------| | Water Table Depth / surface moisture | WTD within 10cm of surface supports bog pant species and maintains anaerobic conditions in peat allowing peat formation. | | Bulk density of peat/permeability | Compression has the potential to reduce or restrict flow of water through peat interrupting functionality leading to probable drying and peat structural change | | Vegetation/bare peat % | Blanket bog plant assemblage perpetuates blanket bog function ensuring moisture is retained and no oxidation at the surface occurs. Bare peat should be avoided. | | Overland flow | Roughness of the surface created by healthy vegetation, especially mosses, slows flow so erosional force of water and mobilisation of carbon is minimised. Drowning of plants should not occur. Moorhouse has natural overland flow which increases with rainfall. |
Fig 8. May 2014 10 months after track installation (K. McKendrick-Smith, 2014) Results
WTD – little effect
Hydrology is central to the functioning of peatlands. The water table up to a distance of 10m from either side of the track edge shows little change after mesh and wooden track installation and use. Therefore carbon storage is unlikely to be affected in the short term. The trial covered a year with wetter conditions and a year with drier conditions. Peat soil moisture content varied only slightly.
Driving Frequency
The mesh track at heaviest use tolerated 10 passes per week for three and a half months (End July – Oct) loaded with 225kg to mimic carrying guns and equipment to butts compared to the unsurfaced track which was subject to two passes per month protected only by its dwarf shrub layer. Even at this rate of use, driving had to be stopped on the unsurfaced section due to damage to the turning area – a key consideration for vehicle use.
Vegetation
Vegetation re-growth will depend to a degree on the original vegetation composition and abundance and site preparation technique used prior to laying. However, the recovery rate of bryophyte (mosses) compared with vascular plants was found to be faster. Driving frequency did not affect re-growth or abundance of key species on the mesh track but vegetation height decreased on the unsurfaced section probably due to flattening by vehicle use.
Compression
There was natural variability in peat bulk density across the site but compression of the peat following track installation and use was not evident with bulk density actually decreasing overall after driving. There was a small compression impact of the 4x4 track but this may be a result of it being laid at the outset with a normal tractor not low pressure equipment which was used for the mesh site preparation.
The peat surface did not remain even after track laying and was sometimes lower where the wheels of the vehicle passed. Increased driving frequency did not influence the extent of peat surface lowering. (Max. average drop measured was 6cm) This may have led to small scale changes in peat structure and the formation of channels for overland flow of water which could be problematical in some situations.
Surface peat demonstrates natural variability of permeability with horizontal flow typically known to be faster than vertical flow. The effect of the mesh track on permeability showed variability but generally vertical flow slowed and horizontal flow speeded up. However, neither trend was related to driving frequency and they were generally insignificant from a statistical point of view. Fig 9. October 2015 2 years 3 months after track installation (K. McKendrick-Smith, 2014)
Fig 10. April 2017 3 years 9 months after track installation (K. McKendrick-Smith, 2014) Rutting
Both track surfaces offered protection from damage to the peat surface. Rutting did occur on the lower section and turning area of the no-surface route section after 24 passes. This had very light use during the trial (twice per month) and was stopped early (12 months not 18) due to the damage being caused. It is precisely this damage that practitioners and conservationists seek to avoid by finding a pragmatic solution.
Bare Peat
No vegetation survey was carried out immediately after the tracks were laid and compared to the survey of vegetation before preparation started. It is therefore not clear what caused bare peat but it could be:
a) the natural result of removing the canopy revealing patches with no moss layer. However, only 1-2% cover (after driving) of bare peat was evident in the unsurfaced treatment where no vegetation removal took place and there was no evidence of bare peat recorded in the vegetation survey before site preparation on the track routes.
b) mechanical scalping during site preparation and/or
c) the effect of driving coupled with overland flow.
The lowest percentage of bare peat was in the most frequently used section. This suggests that the track prevented rutting and braiding that occurs on non-surfaced tracks.
Overland flow
There was less overland flow in the control area where vegetation was disturbed least i.e. no site preparation or driving. Frequency of use or track type did not affect overland flow but naturally occurring overland flow was seen to channelize, especially where the track was at the bottom of the slope and at times of higher rainfall. Diverting overland flow down the mesh surface is not desirable and a balance between preparing track route before laying and leaving enough vegetation roughness is important.
N.B. For more detail, please see the inside back cover for the full scientific report reference. Fig 11. April 2017 3 years 9 months after track installation (K. McKendrick-Smith, 2014) Conclusion
Both the wooden structure for 4x4 use and the plastic mesh had little effect in the physical and hydrological properties of the peatland within the timescale of the trial. Hydrological properties remained intact even with increased driving frequency and loading of vehicles.
Driving seemed to have little negative impact on blanket bog vegetation community on both types of track surface which showed signs of recovery since site preparation even with frequent use. The unsurfaced route had a very high density of possibly cushioning vegetation coverage, yet showed evidence that vegetation height was lowered with a suggestion of a wheel rut profile forming across the track cross-section even with light use.
Consent
From the results, Natural England (NE) is content to continue to give and renew time-limited consents (typically five years) for mesh tracks on designated blanket bog sites as a pragmatic solution to the balance between required access and conservation objectives.
NE consent does not give planning permission and each local planning authority may interpret mesh surfacing differently. Each local planning authority should be contacted in advance of any track installation.
The 4X4 track also proved successful for not interrupting hydrological function to any great extent within the timescale of this trial but there is some vegetation loss beneath the structure.
However, the trial was only short term and therefore long term effects are still unknown and may be the subject of future research.
A review of the hydrological impact of existing stone tracks on deep peat in The North Pennines and Cheviots was also undertaken as part of this collaborative work. Although caution is needed in interpreting the results, moisture content around older stone tracks (15 years or more) was lower implying that there could be an increasing impact on the hydrological function (connectivity) over time/age of the track. When the track runs parallel to the contours – cutting across flow pathways – the effect is seen to be greatest on the downhill side of the track. The Project Partnership would like to thank the following:
The research student, Kathryn McKendrick-Smith for her hard work and commitment and Leeds University for supervising and supporting her.
To John Carrick of Carrick Contractors Ltd for supplying and installing the 4X4 track and for his continued interest throughout the time of the project.
To Martin Furness for facilitating access to Moor House NNR.
To Bev Ridley for her driving of the Argocat.
We would also like to thank the MA members who allowed Kathryn to access and study some of the existing tracks on sites around the North Pennines.
For further reading on this study see:
McKendrick-Smith, K., Holden, J., and Parry, L. (2017) The Impact of Tracks on Blanket Peat Ecohydrology – Summary Report, University of Leeds. Blanket Bog Track Trial Moor House NNR
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840741bb1becbda3748cc97f09b5c8465c8b9a41 | This document is meant purely as a documentation tool and the institutions do not assume any liability for its contents
►B ►C1 REGULATION (EC) No 853/2004 OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL
of 29 April 2004
laying down specific hygiene rules for food of animal origin ►
(OJ L 139, 30.4.2004, p. 55)
Amended by:
| No | page | date | |----|------|------------| | M1 | | | | M2 | | | | M3 | | | | M4 | | | | M5 | | | | M6 | | | | M7 | | | | M8 | | | | M9 | | | | M10| | | | M11| | | | M12| | | | M13| | | | M14| | | | M15| | | | M16| | | | M17| | | | M18| | |
Corrected by:
►C1 Corrigendum, OJ L 226, 25.6.2004, p. 22 (853/2004) REGULATION (EC) No 853/2004 OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 29 April 2004 laying down specific hygiene rules for food of animal origin
THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION,
Having regard to the Treaty establishing the European Community, and in particular Article 152(4)(b) thereof,
Having regard to the proposal from the Commission (1),
Having regard to the opinion of the European Economic and Social Committee (2),
Having consulted the Committee of the Regions,
Acting in accordance with the procedure laid down in Article 251 of the Treaty (3),
Whereas:
(1) Pursuant to Regulation (EC) No 852/2004 (4), the European Parliament and the Council laid down general rules for food business operators on the hygiene of foodstuffs.
(2) Certain foodstuffs may present specific hazards to human health, requiring the setting of specific hygiene rules. This is particularly the case for food of animal origin, in which microbiological and chemical hazards have frequently been reported.
(3) In the context of the common agricultural policy, many Directives have been adopted to establish specific health rules for the production and placing on the market of the products listed in Annex I to the Treaty. These health rules have reduced trade barriers for the products concerned, contributing to the creation of the internal market while ensuring a high level of protection of public health.
(4) With regard to public health, these rules contain common principles, in particular in relation to the manufacturers ‘and competent authorities’ responsibilities, structural, operational and hygiene requirements for establishments, procedures for the approval of establishments, requirements for storage and transport and health marks.
(5) These principles constitute a common basis for the hygienic production of food of animal origin, permitting the simplification of the existing directives.
(6) It is desirable to achieve further simplification by applying the same rules wherever appropriate to all products of animal origin.
(1) OJ C 365 E, 19.12.2000, p. 58. (2) OJ C 155, 29.5.2001, p. 39. (3) Opinion of the European Parliament of 15 May 2002 (OJ C 180 E, 31.7.2003, p. 288), Council Common Position of 27 October 2003 (OJ C 48 E, 24.2.2004, p. 23), Position of the European Parliament of 30 March 2004 (not yet published in the Official Journal) and Council Decision of 16 April 2004. (4) See page 3 of this Official Journal. The requirement in Regulation (EC) No 852/2004 whereby food business operators carrying out any stage of production, processing and distribution of food after primary production and associated operations must put in place, implement and maintain procedures based on hazard analysis and critical control point (HACCP) principles also permits simplification.
Taken together, these elements justify a recasting of the specific hygiene rules contained in existing directives.
The principal objectives of the recasting are to secure a high level of consumer protection with regard to food safety, in particular by making food business operators throughout the Community subject to the same rules, and to ensure the proper functioning of the internal market in products of animal origin, thus contributing to the achievement of the objectives of the common agricultural policy.
It is necessary to maintain and, where required to ensure consumer protection, to tighten detailed hygiene rules for products of animal origin.
Community rules should not apply either to primary production for private domestic use or to the domestic preparation, handling or storage of food for private domestic consumption. Moreover, where small quantities of primary products or of certain types of meat are supplied directly by the food business operator producing them to the final consumer or to a local retail establishment, it is appropriate to protect public health through national law, in particular because of the close relationship between the producer and the consumer.
The requirements of Regulation (EC) No 852/2004 are generally sufficient to ensure food safety in establishments carrying out retail activities involving the direct sale or supply of food of animal origin to the final consumer. This Regulation should generally apply to wholesale activities (that is, when a retail establishment carries out operations with a view to supplying food of animal origin to another establishment). Nevertheless, with the exception of the specific temperature requirements laid down in this Regulation, the requirements of Regulation (EC) No 852/2004 should suffice for wholesale activities consisting only of storage or transport.
Member States should have some discretion to extend or to limit the application of the requirements of this Regulation to retail under national law. However, they may limit their application only if they consider that the requirements of Regulation (EC) No 852/2004 are sufficient to achieve food hygiene objectives and when the supply of food of animal origin from a retail establishment to another establishment is a marginal, localised and restricted activity. Such supply should therefore be only a small part of the establishment’s business; the establishments supplied should be situated in its immediate vicinity; and the supply should concern only certain types of products or establishments. In accordance with Article 10 of the Treaty, Member States are to take all appropriate measures to ensure that food business operators comply with the obligations laid down in this Regulation.
The traceability of food is an essential element in ensuring food safety. In addition to complying with the general rules of Regulation (EC) No 178/2002 (1), food business operators responsible for establishments that are subject to approval in accordance with this Regulation should ensure that all products of animal origin that they place on the market bear either a health mark or an identification mark.
Food imported into the Community is to comply with the general requirements laid down in Regulation (EC) No 178/2002 or to satisfy rules that are equivalent to Community rules. This Regulation defines specific hygiene requirements for food of animal origin imported into the Community.
The adoption of this Regulation should not reduce the level of protection provided by the additional guarantees agreed for Finland and Sweden on their accession to the Community and confirmed by Commission Decisions 94/968/EC (2), 95/50/EC (3), 95/160/EC (4), 95/161/E (5) and 95/168/EC (6), and Council Decisions 95/409/EC (7), 95/410/EC (8) and 95/411/EC (9). It should establish a procedure for the granting, for a transitional period, of guarantees to any Member State that has an approved national control programme which, for the food of animal origin concerned, is equivalent to those approved for Finland and Sweden. Regulation (EC) No 2160/2003 of the European Parliament and of the Council of 17 November 2003 on the control of salmonella and other specified food-borne zoonotic agents (10) provides for a similar procedure in respect of live animals and hatching eggs.
It is appropriate for the structural and hygiene requirements laid down in this Regulation to apply to all types of establishments, including small businesses and mobile slaughterhouses.
(1) Regulation (EC) No 178/2002 of the European Parliament and of the Council of 28 January 2002 laying down the general principles and requirements of food law, establishing the European Food Safety Authority and laying down procedures in matters of food safety (OJ L 31, 1.2.2002, p. 1). Regulation as amended by Regulation (EC) No 1642/2003 (OJ L 245, 29.9.2003, p. 4). (2) OJ L 371, 31.12.1994, p. 36. (3) OJ L 53, 9.3.1995, p. 31. (4) OJ L 105 9.5.1995, p. 40. (5) OJ L 105, 9.5.1995, p. 44. (6) OJ L 109, 16.5.1995, p. 44. (7) OJ L 243, 11.10.1995, p. 21. (8) OJ L 243, 11.10.1995, p. 25. (9) OJ L 243, 11.10.1995, p. 29. (10) OJ L 325, 12.12.2003, p. 1. (19) Flexibility is appropriate to enable the continued use of traditional methods at any of the stages of production, processing or distribution of food and in relation to structural requirements for establishments. Flexibility is particularly important for regions that are subject to special geographical constraints, including the outermost regions referred to in Article 299(2) of the Treaty. However, flexibility should not compromise food hygiene objectives. Moreover, since all food produced in accordance with the hygiene rules will normally be in free circulation throughout the Community, the procedure allowing Member States to exercise flexibility should be fully transparent. It should provide, where necessary to resolve disagreements, for discussion within the Standing Committee on the Food Chain and Animal Health established by Regulation (EC) No 178/2002 and for the Commission to coordinate the process and take appropriate measures.
(20) The definition of mechanically separated meat (MSM) should be a generic one covering all methods of mechanical separation. Rapid technological developments in this area mean that a flexible definition is appropriate. The technical requirements for MSM should differ, however, depending on a risk assessment of the product resulting from different methods.
(21) There are interactions between food business operators, including the animal feed sector, and connections between animal health, animal welfare and public health considerations at all stages of production, processing and distribution. This requires adequate communication between the different stakeholders along the food chain from primary production to retail.
(22) In order to ensure proper inspection of hunted wild game placed on the Community market, bodies of hunted animals and their viscera should be presented for official post-mortem inspection at a game-handling establishment. However, to preserve certain hunting traditions without prejudicing food safety, it is appropriate to provide for training for hunters who place wild game on the market for human consumption. This should enable hunters to undertake an initial examination of wild game on the spot. In these circumstances, it is not necessary to require trained hunters to deliver all viscera to the game-handling establishment for post-mortem examination, if they carry out this initial examination and identify no anomalies or hazards. However, Member States should be allowed to establish stricter rules within their territories to take account of specific risks.
(23) This Regulation should establish criteria for raw milk pending the adoption of new requirements for its placing on the market. These criteria should be trigger values, implying that, in the event of any overshooting, food business operators are to take corrective action and to notify the competent authority. The criteria should not be maximum figures beyond which raw milk cannot be placed on the market. This implies that, in certain circumstances, raw milk not fully meeting the criteria can safely be used for human consumption, if appropriate measures are taken. As regards raw milk and raw cream intended for direct human consumption, it is appropriate to enable each Member State to maintain or establish appropriate health measures to ensure the achievement of the objectives of this Regulation on its territory.
(24) It is appropriate for the criterion for raw milk used to manufacture dairy products to be three times as high as the criterion for raw milk collected from the farm. The criterion for milk used to manufacture processed dairy products is an absolute value, whereas for raw milk collected from the farm it is an average. Compliance with the temperature requirements laid down in this Regulation will not halt all bacterial growth during transport and storage.
(25) The present recasting means that the existing hygiene rules can be repealed. Directive 2004/41/EC of the European Parliament and of the Council of 21 April 2004 repealing certain directives on food hygiene and health conditions for the production and placing on the market of certain products of animal origin intended for human consumption (1) achieves this.
(26) In addition, the rules of this Regulation on eggs replace those of Council Decision 94/371/EC of 20 June 1994 laying down specific public health conditions for the putting on the market of certain types of eggs (2), which the repeal of Annex II to Council Directive 92/118/EEC (3) renders void.
(27) Scientific advice should underpin Community legislation on food hygiene. To this end, the European Food Safety Authority should be consulted whenever necessary.
(28) To take account of technical and scientific progress, close and effective cooperation should be ensured between the Commission and the Member States within the Standing Committee on the Food Chain and Animal Health.
(29) The requirements of this Regulation should not apply until all parts of the new legislation on food hygiene have entered into force. It is also appropriate to provide for at least 18 months to elapse between entry into force and the application of the new rules, to allow the industries affected time to adapt.
(1) OJ L 157, 30.4.2004, p. 33. (2) OJ L 168, 2.7.1994, p. 34. (3) Council Directive 92/118/EEC of 17 December 1992 laying down animal health and public health requirements governing trade in and imports into the Community of products not subject to the said requirements laid down in specific Community rules referred to in Annex A (I) to Directive 89/662/EEC and, as regards pathogens, to Directive 90/425/EEC (OJ L 62, 15.3.1993, p. 49). Directive as last amended by Commission Regulation (EC) No 445/2004 (OJ L 72, 11.3.2004, p. 60). The measures necessary for the implementation of this Regulation should be adopted in accordance with Council Decision 1999/468/EC of 28 June 1999 laying down the procedures for the exercise of implementing powers conferred on the Commission (1),
HAVE ADOPTED THIS REGULATION:
CHAPTER I GENERAL PROVISIONS
Article 1 Scope
1. This Regulation lays down specific rules on the hygiene of food of animal origin for food business operators. These rules supplement those laid down by Regulation (EC) No 852/2004. They shall apply to unprocessed and processed products of animal origin.
2. Unless expressly indicated to the contrary, this Regulation shall not apply to food containing both products of plant origin and processed products of animal origin. However, processed products of animal origin used to prepare such food shall be obtained and handled in accordance with the requirements of this Regulation.
3. This Regulation shall not apply in relation to:
(a) primary production for private domestic use;
(b) the domestic preparation, handling or storage of food for private domestic consumption;
(c) the direct supply, by the producer, of small quantities of primary products to the final consumer or to local retail establishments directly supplying the final consumer;
(d) the direct supply, by the producer, of small quantities of meat from poultry and lagomorphs slaughtered on the farm to the final consumer or to local retail establishments directly supplying such meat to the final consumer as fresh meat;
(e) hunters who supply small quantities of wild game or wild game meat directly to the final consumer or to local retail establishments directly supplying the final consumer.
4. Member States shall establish, according to national law, rules governing the activities and persons referred to in paragraph 3(c), (d) and (e). Such national rules shall ensure the achievement of the objectives of this Regulation.
5. (a) Unless expressly indicated to the contrary, this Regulation shall not apply to retail.
(1) OJ L 184, 17.7.1999, p. 23. (b) However, this Regulation shall apply to retail when operations are carried out with a view to the supply of food of animal origin to another establishment, unless:
(i) the operations consist only of storage or transport, in which case the specific temperature requirements laid down in Annex III shall nevertheless apply;
or
(ii) the supply of food of animal origin from the retail establishment is to other retail establishments only and, in accordance with national law, is a marginal, localised and restricted activity.
(c) Member States may adopt national measures to apply the requirements of this Regulation to retail establishments situated on their territory to which it would not apply pursuant to subparagraphs (a) or (b).
6. This Regulation shall apply without prejudice to:
(a) relevant animal and public health rules, including more stringent rules laid down for the prevention, control and eradication of certain transmissible spongiform encephalopathies;
(b) animal welfare requirements;
and
(c) requirements concerning the identification of animals and the traceability of products of animal origin.
Article 2
Definitions
The following definitions shall apply for the purposes of this Regulation:
1. the definitions laid down in Regulation (EC) No 178/2002;
2. the definitions laid down in Regulation (EC) No 852/2004;
3. the definitions laid down in Annex I;
and
4. any technical definitions contained in Annexes II and III.
CHAPTER II
FOOD BUSINESS OPERATORS' OBLIGATIONS
Article 3
General obligations
1. Food business operators shall comply with the relevant provisions of Annexes II and III.
2. Food business operators shall not use any substance other than potable water — or, when Regulation (EC) No 852/2004 or this Regulation permits its use, clean water — to remove surface contamination from products of animal origin, unless use of the substance has been approved by the Commission. Those measures, designed to amend non-essential elements of this Regulation by supplementing it, shall be adopted in accordance with the regulatory procedure with scrutiny referred to in Article 12(3). Food business operators shall also comply with any conditions for use that may be adopted under the same procedure. The use of an approved substance shall not affect the food business operator's duty to comply with the requirements of this Regulation.
Article 4
Registration and approval of establishments
1. Food business operators shall place products of animal origin manufactured in the Community on the market only if they have been prepared and handled exclusively in establishments:
(a) that meet the relevant requirements of Regulation (EC) No 852/2004, those of Annexes II and III of this Regulation and other relevant requirements of food law;
and
(b) that the competent authority has registered or, where required in accordance with paragraph 2, approved.
2. Without prejudice to Article 6(3) of Regulation (EC) No 852/2004, establishments handling those products of animal origin for which Annex III to this Regulation lays down requirements shall not operate unless the competent authority has approved them in accordance with paragraph 3 of this Article, with the exception of establishments carrying out only:
(a) primary production;
(b) transport operations;
(c) the storage of products not requiring temperature-controlled storage conditions;
or
(d) retail operations other than those to which this Regulation applies pursuant to Article 1(5)(b).
3. An establishment subject to approval in accordance with paragraph 2 shall not operate unless the competent authority has, in accordance with Regulation (EC) No 854/2004 of the European Parliament and of the Council of 29 April 2004 laying down specific rules for the organisation of official controls on products of animal origin intended for human consumption (1):
(a) granted the establishment approval to operate following an on-site visit;
or
(b) provided the establishment with conditional approval.
(1) See page 83 of this Official Journal. 4. Food business operators shall cooperate with the competent authorities in accordance with Regulation (EC) No 854/2004. In particular, food business operators shall ensure that an establishment ceases to operate if the competent authority withdraws its approval or, in the case of conditional approval, fails to prolong it or to grant full approval.
5. This Article shall not prevent an establishment from placing food on the market between the date of application of this Regulation and the first subsequent inspection by the competent authority, if the establishment:
(a) is subject to approval in accordance with paragraph 2 and placed products of animal origin on the market in accordance with Community legislation immediately prior to the application of this Regulation;
or
(b) is of a type in respect of which there was no requirement for approval before the application of this Regulation.
Article 5
Health and identification marking
1. Food business operators shall not place on the market a product of animal origin handled in an establishment subject to approval in accordance with Article 4(2) unless it has either:
(a) a health mark applied in accordance with Regulation (EC) No 854/2004;
or
(b) when that Regulation does not provide for the application of a health mark, an identification mark applied in accordance with Annex II, Section I, of this Regulation.
2. Food business operators may apply an identification mark to a product of animal origin only if the product has been manufactured in accordance with this Regulation in establishments meeting the requirements of Article 4.
3. Food business operators may not remove a health mark applied in accordance with Regulation (EC) No 854/2004 from meat unless they cut or process it or work upon it in another manner.
Article 6
Products of animal origin from outside the Community
1. Food business operators importing products of animal origin from third countries shall ensure that importation takes place only if:
(a) the third country of dispatch appears on a list, drawn up in accordance with Article 11 of Regulation (EC) No 854/2004, of third countries from which imports of that product are permitted; (b) (i) the establishment from which that product was dispatched, and in which it was obtained or prepared, appears on a list, drawn up in accordance with Article 12 of Regulation (EC) No 854/2004, of establishments from which imports of that product are permitted, when applicable,
(ii) in the case of fresh meat, minced meat, meat preparations, meat products and MSM, the product was manufactured from meat obtained in slaughterhouses and cutting plants appearing on lists drawn up and updated in accordance with Article 12 of Regulation (EC) No 854/2004 or in approved Community establishments,
and
(iii) in the case of live bivalve molluscs, echinoderms, tunicates and marine gastropods, the production area appears on a list drawn up in accordance with Article 13 of that Regulation, when applicable;
(c) the product satisfies:
(i) the requirements of this Regulation, including the requirements of Article 5 on health and identification marking;
(ii) the requirements of Regulation (EC) No 852/2004;
and
(iii) any import conditions laid down in accordance with Community legislation governing import controls for products of animal origin;
and
(d) the requirements of Article 14 of Regulation (EC) No 854/2004 concerning certificates and documents are satisfied, when applicable.
2. By way of derogation from paragraph 1, the importation of fishery products may also take place in accordance with the special provisions laid down in Article 15 of Regulation (EC) No 854/2004.
3. Food business operators importing products of animal origin shall ensure that:
(a) products are made available for control upon importation in accordance with Directive 97/78/EC (1);
(b) importation complies with the requirements of Directive 2002/99/EC (2);
and
(c) operations under their control that take place after importation are carried out in accordance with the requirements of Annex III.
(1) Council Directive 97/78/EC of 18 December 1997 laying down the principles governing the organisation of veterinary checks on products entering the Community from third countries (OJ L 24, 30.1.1998, p. 9). Directive amended by the 2003 Act of Accession.
(2) Council Directive 2002/99/EC of 16 December 2002 laying down the animal health rules governing the production, processing, distribution and introduction of products of animal origin for human consumption (OJ L 18, 23.1.2003, p. 11). 4. Food business operators importing food containing both products of plant origin and processed products of animal origin shall ensure that the processed products of animal origin contained in such food satisfy the requirements of paragraphs 1 to 3. They must be able to demonstrate that they have done so (for example, through appropriate documentation or certification, which need not be in the format specified in paragraph 1(d)).
CHAPTER III
TRADE
Article 7
Documents
1. When required in accordance with Annex II or III, food business operators shall ensure that certificates or other documents accompany consignments of products of animal origin.
2. In accordance with the procedure referred to in Article 12(2):
(a) model documents may be established;
and
(b) provision may be made for the use of electronic documents.
Article 8
Special guarantees
1. Food business operators intending to place the following food of animal origin on the market in Sweden or Finland shall comply with the rules set out in paragraph 2 in respect of salmonella:
(a) meat from bovine and porcine animals, including minced meat but excluding meat preparations and MSM;
(b) meat from poultry of the following species: domestic fowl, turkeys, guinea-fowl, ducks and geese, including minced meat but excluding meat preparations and MSM;
and
(c) eggs.
2. (a) In the case of meat from bovine and porcine animals and meat from poultry, samples of consignments shall have been taken in the dispatching establishment and been subjected to a microbiological test with negative results in accordance with Community legislation.
(b) In the case of eggs, packing centres shall provide a guarantee that consignments originate from flocks that have been subjected to a microbiological test with negative results in accordance with Community legislation. (c) In the case of meat from bovine and porcine animals, the test provided for in subparagraph (a) need not be carried out for consignments intended for an establishment for the purposes of pasteurisation, sterilisation or treatment having a similar effect. In the case of eggs, the test provided for in subparagraph (b) need not be carried out for consignments intended for the manufacture of processed products by a process that guarantees the elimination of salmonella.
(d) The tests provided for in subparagraphs (a) and (b) need not be carried out for foodstuffs originating in an establishment that is subject to a control programme recognised, in respect of the food of animal origin concerned and in accordance with the procedure referred to in Article 12(2), as equivalent to that approved for Sweden and Finland.
(e) In the case of meat from bovine and porcine animals and meat from poultry, a trade document or certificate conforming to a model laid down by Community legislation shall accompany the food and state that:
(i) the checks referred to in subparagraph (a) have been carried out with negative results;
or
(ii) the meat is intended for one of the purposes referred to in subparagraph (c);
or
(iii) the meat comes from an establishment covered by subparagraph (d).
(f) In the case of eggs, a certificate stating that the tests referred to in subparagraph (b) have been carried out with negative results, or that the eggs are destined to be used in the manner referred to in subparagraph (c), must accompany consignments.
3. (a) The requirements of paragraphs 1 and 2 may be updated by the Commission, in particular to take account of changes in Member States’ control programmes or of the adoption of microbiological criteria in accordance with Regulation (EC) No 852/2004. Those measures, designed to amend non-essential elements of this Regulation, inter alia, by supplementing it, shall be adopted in accordance with the regulatory procedure with scrutiny referred to in Article 12(3).
(b) In accordance with the regulatory procedure referred to in Article 12(2), the rules laid down in paragraph 2 of this Article in respect of any of the foodstuffs referred to in paragraph 1 of this Article may be extended, in whole or in part, to any Member State, or any region of a Member State, that has a control programme recognised as equivalent to that approved for Sweden and Finland in respect of the food of animal origin concerned. 4. For the purposes of this Article, ‘control programme’ means a control programme approved in accordance with Regulation (EC) No 2160/2003.
CHAPTER IV
FINAL PROVISIONS
Article 9
Transitional measures of general scope designed to amend non-essential elements of this Regulation, *inter alia*, by supplementing it with new non-essential elements, in particular further specifications of the requirements laid down in this Regulation, shall be adopted in accordance with the regulatory procedure with scrutiny referred to in Article 12(3).
Other implementing or transitional measures may be adopted in accordance with the regulatory procedure referred to in Article 12(2).
Article 10
Amendment and adaptation of Annexes II and III
1. Annexes II and III may be adapted or updated by the Commission taking into account:
(a) the development of guides to good practice;
(b) the experience gained from the implementation of HACCP-based systems pursuant to Article 5 of Regulation (EC) No 852/2004;
(c) the technological developments and their practical consequences and consumer expectations with regard to food composition;
(d) scientific advice, particularly new risk assessments;
(e) microbiological and temperature criteria for foodstuffs;
(f) changes in patterns of consumption.
2. Exemptions from Annex II and III may be granted by the Commission, provided that they do not affect the achievement of the objectives of this Regulation. Those measures, designed to amend non-essential elements of this Regulation, shall be adopted in accordance with the regulatory procedure with scrutiny referred to in Article 12(3).
3. Member States may, without compromising achievement of the objectives of this Regulation, adopt, in accordance with paragraphs 4 to 8, national measures adapting the requirements laid down in Annex III.
4. (a) The national measures referred to in paragraph 3 shall have the aim of:
(i) enabling the continued use of traditional methods at any of the stages of production, processing or distribution of food;
or
(ii) accommodating the needs of food businesses situated in regions that are subject to special geographic constraints.
(b) In other cases, they shall apply only to the construction, layout and equipment of establishments.
5. Any Member State wishing to adopt national measures as referred to in paragraph 3 shall notify the Commission and other Member States. Each notification shall:
(a) provide a detailed description of the requirements that that Member State considers need to be adapted and the nature of the adaptation sought;
(b) describe the foodstuffs and establishments concerned;
(c) explain the reasons for the adaptation, including, where relevant, by providing a summary of the hazard analysis carried out and any measures to be taken to ensure that the adaptation will not compromise the objectives of this Regulation;
and
(d) give any other relevant information.
6. The other Member States shall have three months from the receipt of a notification referred to in paragraph 5 to send written comments to the Commission. In the case of adaptations arising from paragraph 4(b), this period shall, at the request of any Member State, be extended to four months. The Commission may, and when it receives written comments from one or more Member States shall, consult Member States within the committee referred to in Article 12(1). The Commission may decide, in accordance with the procedure referred to in Article 12(2), whether the envisaged measures may be implemented, subject, if necessary, to appropriate amendments. Where appropriate, the Commission may propose general measures in accordance with paragraph 1 or 2 of this Article.
7. A Member State may adopt national measures adapting the requirements of Annex III only:
(a) in compliance with a decision adopted in accordance with paragraph 6;
(b) if, one month after the expiry of the period referred to in paragraph 6, the Commission has not informed Member States that it has received written comments or that it intends to propose the adoption of a decision in accordance with paragraph 6;
or
(c) in accordance with paragraph 8. 8. A Member State may, of its own initiative and subject to the general provisions of the Treaty, maintain or establish national rules:
(a) prohibiting or restricting the placing on the market within its territory of raw milk or raw cream intended for direct human consumption;
or
(b) permitting the use, with the authorisation of the competent authority, of raw milk not meeting the criteria laid down in Annex III, Section IX, as regards plate count and somatic cell count of the manufacture of cheeses with an ageing or ripening period of at least 60 days, and dairy products obtained in connection with the manufacture of such cheeses, provided that this does not prejudice the achievement of the objectives of this Regulation.
Article 11
Specific decisions
Without prejudice to the general application of Article 9 and Article 10(1), implementing measures may be laid down in accordance with the regulatory procedure referred to in Article 12(2), and amendments to Annex II or III, as measures designed to amend non-essential elements of this Regulation, may be adopted in accordance with the regulatory procedure with scrutiny referred to in Article 12(3):
01. to lay down rules for the transport of meat while it is warm;
02. to specify, in respect of MSM, which calcium content is not significantly higher than that of minced meat;
03. to lay down other treatments that may be applied in a processing establishment to live bivalve molluscs from class B or C production areas that have not been submitted to purification or relaying;
04. to specify recognised testing methods for marine biotoxins;
05. to lay down additional health standards for live bivalve molluscs in cooperation with the relevant Community Reference Laboratory, including:
(a) limit values and analysis methods for other marine biotoxins;
(b) virus testing procedures and virological standards;
and
(c) sampling plans and the methods and analytical tolerances to be applied to check compliance with the health standards;
06. to lay down health standards or checks, where there is scientific evidence indicating that they are necessary to protect public health;
07. to extend Annex III, Section VII, Chapter IX, to live bivalve molluscs other than pectinidae;
08. to specify criteria for determining when epidemiological data indicate that a fishing ground does not present a health hazard with regard to the presence of parasites and, consequently, for determining when the competent authority may authorise food business operators not to freeze fishery products in accordance with Annex III, Section VIII, Chapter III, Part D;
09. to lay down freshness criteria and limits with regard to histamine and total volatile nitrogen for fisheries products;
10. to permit the use for the manufacture of certain dairy products of raw milk not meeting the criteria laid down in Annex III, Section IX, as regards its plate count and somatic cell count;
11. without prejudice to Directive 96/23/EC (1), to fix a maximum permitted value for the combined total of residues of antibiotic substances in raw milk;
and
12. to approve equivalent processes for the production of gelatine or collagen.
Article 12
Committee procedure
1. The Commission shall be assisted by the Standing Committee on the Food Chain and Animal Health.
2. Where reference is made to this paragraph, Articles 5 and 7 of Decision 1999/468/EC shall apply, having regard to the provisions of Article 8 thereof.
The period provided for in Article 5(6) of Decision 1999/468/EC shall be set at three months.
Article 13
Consultation of the European Food Safety Authority
The Commission shall consult the European Food Safety Authority on any matter falling within the scope of this Regulation that could have a significant impact on public health and, in particular, before proposing to extend Annex III, Section III, to other animal species.
(1) Council Directive 96/23/EC of 29 April 1996 on measures to monitor certain substances and residues thereof in live animals and animal products (OJ L 125, 23.5.1996, p. 10). Directive as amended by Regulation (EC) No 806/2003 (OJ L 122, 16.5.2003, p. 1). Article 14
Report to the European Parliament and to the Council
1. The Commission shall, not later than 20 May 2009, submit a report to the European Parliament and the Council reviewing the experience gained from the implementation of this Regulation.
2. The Commission shall, if appropriate, accompany the report with relevant proposals.
Article 15
This Regulation shall enter into force on the 20th day after that of its publication in the Official Journal of the European Union.
It shall apply 18 months after the date on which all of the following acts have entered into force:
(a) Regulation (EC) No 852/2004; (b) Regulation (EC) No 854/2004; and (c) Directive 2004/41/EC.
However, it shall apply no earlier than 1 January 2006.
This Regulation shall be binding in its entirety and directly applicable in all Member States. ANNEX I
DEFINITIONS
For the purpose of this Regulation:
1. MEAT
1.1. ‘Meat’ means edible parts of the animals referred to in points 1.2 to 1.8, including blood.
1.2. ‘Domestic ungulates’ means domestic bovine (including Bubalus and Bison species), porcine, ovine and caprine animals, and domestic solipeds.
1.3. ‘Poultry’ means farmed birds, including birds that are not considered as domestic but which are farmed as domestic animals, with the exception of ratites.
1.4. ‘Lagomorphs’ means rabbits, hares and rodents.
1.5. ‘Wild game’ means:
— wild ungulates and lagomorphs, as well as other land mammals that are hunted for human consumption and are considered to be wild game under the applicable law in the Member State concerned, including mammals living in enclosed territory under conditions of freedom similar to those of wild game;
and
— wild birds that are hunted for human consumption.
1.6. ‘Farmed game’ means farmed ratites and farmed land mammals other than those referred to in point 1.2.
1.7. ‘Small wild game’ means wild game birds and lagomorphs living freely in the wild.
1.8. ‘Large wild game’ means wild land mammals living freely in the wild that do not fall within the definition of small wild game.
1.9. ‘Carcase’ means the body of an animal after slaughter and dressing.
1.10. ‘Fresh meat’ means meat that has not undergone any preserving process other than chilling, freezing or quick-freezing, including meat that is vacuum-wrapped or wrapped in a controlled atmosphere.
1.11. ‘Offal’ means fresh meat other than that of the carcase, including viscera and blood.
1.12. ‘Viscera’ means the organs of the thoracic, abdominal and pelvic cavities, as well as the trachea and oesophagus and, in birds, the crop.
1.13. ‘Minced meat’ means boned meat that has been minced into fragments and contains less than 1 % salt.
1.14. ‘Mechanically separated meat’ or ‘MSM’ means the product obtained by removing meat from flesh-bearing bones after boning or from poultry carcases, using mechanical means resulting in the loss or modification of the muscle fibre structure.
1.15. ‘Meat preparations’ means fresh meat, including meat that has been reduced to fragments, which has had foodstuffs, seasonings or additives added to it or which has undergone processes insufficient to modify the internal muscle fibre structure of the meat and thus to eliminate the characteristics of fresh meat.
1.16. ‘Slaughterhouse’ means an establishment used for slaughtering and dressing animals, the meat of which is intended for human consumption. 1.17. ‘Cutting plant’ means an establishment used for boning and/or cutting up meat.
1.18. ‘Game-handling establishment’ means any establishment in which game and game meat obtained after hunting are prepared for placing on the market.
2. LIVE BIVALVE MOLLUSCS
2.1. ‘Bivalve molluscs’ means filter-feeding lamellibranch molluscs.
2.2. ‘Marine biotoxins’ means poisonous substances accumulated by bivalve molluscs, in particular as a result of feeding on plankton containing toxins.
2.3. ‘Conditioning’ means the storage of live bivalve molluscs coming from class A production areas, purification centres or dispatch centres in tanks or any other installation containing clean seawater, or in natural sites, to remove sand, mud or slime, to preserve or to improve organoleptic qualities and to ensure that they are in a good state of vitality before wrapping or packaging.
2.4. ‘Gatherer’ means any natural or legal person who collects live bivalve molluscs by any means from a harvesting area for the purpose of handling and placing on the market.
2.5. ‘Production area’ means any sea, estuarine or lagoon area, containing either natural beds of bivalve molluscs or sites used for the cultivation of bivalve molluscs, and from which live bivalve molluscs are taken.
2.6. ‘Relaying area’ means any sea, estuarine or lagoon area with boundaries clearly marked and indicated by buoys, posts or any other fixed means, and used exclusively for the natural purification of live bivalve molluscs.
2.7. ‘Dispatch centre’ means any on-shore or off-shore establishment for the reception, conditioning, washing, cleaning, grading, wrapping and packaging of live bivalve molluscs fit for human consumption.
2.8. ‘Purification centre’ means an establishment with tanks fed by clean seawater in which live bivalve molluscs are placed for the time necessary to reduce contamination to make them fit for human consumption.
2.9. ‘Relaying’ means the transfer of live bivalve molluscs to sea, lagoon or estuarine areas for the time necessary to reduce contamination to make them fit for human consumption. This does not include the specific operation of transferring bivalve molluscs to areas more suitable for further growth or fattening.
3. FISHERY PRODUCTS
3.1. ‘Fishery products’ means all seawater or freshwater animals (except for live bivalve molluscs, live echinoderms, live tunicates and live marine gastropods, and all mammals, reptiles and frogs) whether wild or farmed and including all edible forms, parts and products of such animals.
3.2. ‘Factory vessel’ means any vessel on board which fishery products undergo one or more of the following operations followed by wrapping or packaging and, if necessary, chilling or freezing: filleting, slicing, skinning, shelling, shucking, mincing or processing.
3.3. ‘Freezer vessel’ means any vessel on board which freezing of fishery products is carried out, where appropriate after preparatory work such as bleeding, heading, gutting and removal of fins and, where necessary, followed by wrapping or packaging. 3.4. ‘Mechanically separated fishery product’ means any product obtained by removing flesh from fishery products using mechanical means resulting in the loss or modification of the flesh structure.
3.5. ‘Fresh fishery products’ means unprocessed fishery products, whether whole or prepared, including products packaged under vacuum or in a modified atmosphere, that have not undergone any treatment to ensure preservation other than chilling.
3.6. ‘Prepared fishery products’ means unprocessed fishery products that have undergone an operation affecting their anatomical wholeness, such as gutting, heading, slicing, filleting, and chopping.
4. MILK
4.1. ‘Raw milk’ means milk produced by the secretion of the mammary gland of farmed animals that has not been heated to more than 40 °C or undergone any treatment that has an equivalent effect.
4.2. ‘Milk production holding’ means an establishment where one or more farmed animals are kept to produce milk with a view to placing it on the market as food.
5. EGGS
5.1. ‘Eggs’ means eggs in shell — other than broken, incubated or cooked eggs — that are produced by farmed birds and are fit for direct human consumption or for the preparation of egg products.
5.2. ‘Liquid egg’ means unprocessed egg contents after removal of the shell.
5.3. ‘Cracked eggs’ means eggs with damaged shell and intact membranes.
5.4. ‘Packing centre’ means an establishment where eggs are graded by quality and weight.
6. FROGS’ LEGS AND SNAILS
6.1. ‘Frogs’ legs’ means the posterior part of the body divided by a transverse cut behind the front limbs, eviscerated and skinned, of the species RNA (family Ranidae).
6.2. ‘Snails’ means terrestrial gastropods of the species Helix pomatia Linné, Helix aspersa Muller, Helix lucorum and species of the family Achatinidae.
7. PROCESSED PRODUCTS
7.1. ‘Meat products’ means processed products resulting from the processing of meat or from the further processing of such processed products, so that the cut surface shows that the product no longer has the characteristics of fresh meat.
7.2. ‘Dairy products’ means processed products resulting from the processing of raw milk or from the further processing of such processed products.
7.3. ‘Egg products’ means processed products resulting from the processing of eggs, or of various components or mixtures of eggs, or from the further processing of such processed products.
7.4. ‘Processed fishery products’ means processed products resulting from the processing of fishery products or from the further processing of such processed products. 7.5. ‘Rendered animal fat’ means fat derived from rendering meat, including bones, and intended for human consumption.
7.6. ‘Greaves’ means the protein-containing residue of rendering, after partial separation of fat and water.
7.7. ‘Gelatine’ means natural, soluble protein, gelling or non-gelling, obtained by the partial hydrolysis of collagen produced from bones, hides and skins, tendons and sinews of animals.
7.8. ‘Collagen’ means the protein-based product derived from animal bones, hides, skins and tendons manufactured in accordance with the relevant requirements of this Regulation.
7.9. ‘Treated stomachs, bladders and intestines’ means stomachs, bladders and intestines that have been submitted to a treatment such as salting, heating or drying after they have been obtained and after cleaning.
8. OTHER DEFINITIONS
8.1. ‘Products of animal origin’ means: — food of animal origin, including honey and blood; — live bivalve molluscs, live echinoderms, live tunicates and live marine gastropods intended for human consumption; and — other animals destined to be prepared with a view to being supplied live to the final consumer.
8.2. ‘Wholesale market’ means a food business that includes several separate units which share common installations and sections where foodstuffs are sold to food business operators. ANNEX II
REQUIREMENTS CONCERNING SEVERAL PRODUCTS OF ANIMAL ORIGIN
SECTION I: IDENTIFICATION MARKING
When required in accordance with Article 5 or 6, and subject to the provisions of Annex III, food business operators must ensure that products of animal origin have an identification mark applied in compliance with the following provisions.
A. APPLICATION OF THE IDENTIFICATION MARK
1. The identification mark must be applied before the product leaves the establishment of production.
2. However, when a product's packaging and/or wrapping is removed or it is further processed in another establishment, a new mark must be applied to the product. In such cases, the new mark must indicate the approval number of the establishment where these operations take place.
3. An identification mark is not necessary on packs of eggs when a packing centre code is applied in accordance with Part A of Annex XIV to Council Regulation (EC) No 1234/2007 (1).
4. Food business operators must, in accordance with Article 18 of Regulation (EC) No 178/2002, have in place systems and procedures to identify food business operators from whom they have received and to whom they have delivered products of animal origin.
B. FORM OF THE IDENTIFICATION MARK
5. The mark must be legible and indelible, and the characters easily decipherable. It must be clearly displayed for the competent authorities.
6. The mark must indicate the name of the country in which the establishment is located, which may be written out in full or shown as a two-letter code in accordance with the relevant ISO standard.
In the case of Member States, however, these codes are BE, BG, CZ, DK, DE, EE, GR, ES, FR, HR, IE, IT, CY, LV, LT, LU, HU, MT, NL, AT, PL, PT, SI, SK, FI, RO, SE and UK.
7. The mark must indicate the approval number of the establishment. If an establishment manufactures both food to which this Regulation applies and food to which it does not, the food business operator may apply the same identification mark to both types of food.
8. When applied in an establishment located within the Community, the mark must be oval in shape and include the abbreviation CE, EC, EF, EG, EK, EO, EY, ES, EÜ, EB, EZ or WE. Those abbreviations must not be included in marks applied on products imported into the Community from establishments located outside the Community.
(1) OJ L 299, 16.11.2007, p. 1. C. METHOD OF MARKING
09. The mark may, depending on the presentation of different products of animal origin, be applied directly to the product, the wrapping or the packaging, or be printed on a label affixed to the product, the wrapping or the packaging. The mark may also be an irremovable tag made of a resistant material.
10. In the case of packaging containing cut meat or offal, the mark must be applied to a label fixed to the packaging, or printed on the packaging, in such a way that it is destroyed when the packaging is opened. This is not necessary, however, if the process of opening destroys the packaging. When wrapping provides the same protection as packaging, the label may be affixed to the wrapping.
11. For products of animal origin that are placed in transport containers or large packages and are intended for further handling, processing, wrapping or packaging in another establishment, the mark may be applied to the external surface of the container or packaging.
12. In the case of liquid, granulate and powdered products of animal origin carried in bulk, and fishery products carried in bulk, an identification mark is not necessary if accompanying documentation contains the information specified in points 6, 7 and, where appropriate, 8.
13. When products of animal origin are placed in a package destined for direct supply to the final consumer, it is sufficient to apply the mark to the exterior of that package only.
14. When the mark is applied directly to products of animal origin, the colours used must be authorised in accordance with Community rules on the use of colouring substances in foodstuffs.
SECTION II: OBJECTIVES OF HACCP-BASED PROCEDURES
1. Food business operators operating slaughterhouses must ensure that the procedures that they have put in place in accordance with the general requirements of Article 5 of Regulation (EC) No 852/2004 meet the requirements that the hazard analysis shows to be necessary and the specific requirements listed in point 2.
2. The procedures must guarantee that each animal or, where appropriate, each lot of animals accepted onto the slaughterhouse premises:
(a) is properly identified;
(b) is accompanied by the relevant information from the holding of provenance referred to in Section III;
(c) does not come from a holding or an area subject to a movement prohibition or other restriction for reasons of animal or public health, except when the competent authority so permits;
(d) is clean;
(e) is healthy, as far as the food business operator can judge;
and
(f) is in a satisfactory state as regards welfare on arrival at the slaughterhouse.
3. In the event of failure to comply with any of the requirements listed under point 2, the food business operator must notify the official veterinarian and take appropriate measures. SECTION III: FOOD CHAIN INFORMATION
Food business operators operating slaughterhouses must, as appropriate, request, receive, check and act upon food chain information as set out in this Section in respect of all animals, other than wild game, sent or intended to be sent to the slaughterhouse.
1. Slaughterhouse operators must not accept animals onto the slaughterhouse premises unless they have requested, and been provided with, relevant food chain information contained in the records kept at the holding of provenance in accordance with Regulation (EC) No 852/2004.
2. Slaughterhouse operators must be provided with the information no less than 24 hours before the arrival of animals at the slaughterhouse, except in the circumstances mentioned in point 7.
3. The relevant food chain information referred to in point 1 is to cover, in particular:
(a) the status of the holding of provenance or the regional animal health status, and whether the holding is officially recognised to apply controlled housing conditions in relation to Trichinella in accordance with Point A of Chapter I of Annex IV to Commission Regulation (EC) No 2075/2005 (1);
(b) the animals’ health status;
(c) veterinary medicinal products or other treatments administered to the animals within a relevant period and with a withdrawal period greater than zero, together with their dates of administration and withdrawal periods;
(d) the occurrence of diseases that may affect the safety of meat;
(e) the results, if they are relevant to the protection of public health, of any analysis carried out on samples taken from the animals or other samples taken to diagnose diseases that may affect the safety of meat, including samples taken in the framework of the monitoring and control of zoonoses and residues;
(f) relevant reports about previous ante- and post-mortem inspections of animals from the same holding of provenance including, in particular, reports from the official veterinarian;
(g) production data, when this might indicate the presence of disease;
and
(h) the name and address of the private veterinarian normally attending the holding of provenance.
4. (a) However, it is not necessary for the slaughterhouse operator to be provided with:
(i) the information referred to in point 3(a), (b), (f) and (h), if the operator is already aware of this information (for example, through a standing arrangement or a quality assurance scheme);
or
(ii) the information referred to in point 3(a), (b), (f) and (g), if the producer declares that there is no relevant information to report.
(1) OJ L 338, 22.12.2005, p. 60. (b) The information need not be provided as a verbatim extract from the records of the holding of provenance. It may be provided through electronic data exchange or in the form of a standardised declaration signed by the producer.
5. Food business operators deciding to accept animals onto the slaughterhouse premises after evaluating the relevant food chain information must make it available to the official veterinarian without delay and, except in the circumstances mentioned in point 7, no less than 24 hours before the arrival of the animal or lot. The food business operator must notify the official veterinarian of any information that gives rise to health concerns before ante-mortem inspection of the animal concerned.
6. If any animal arrives at the slaughterhouse without food chain information, the operator must immediately notify the official veterinarian. Slaughter of the animal may not take place until the official veterinarian so permits.
7. If the competent authority so permits and provided it does not jeopardise the objectives of this Regulation, food chain information may arrive less than 24 hours before the arrival of the animals of all species to which it relates at the slaughterhouse or accompany these animals to the slaughterhouse.
However, any item of food chain information, knowledge of which may result in serious disruption of the slaughterhouse activity, is to be made available to the food business operator operating the slaughterhouse in sufficient time before the animals arrive at the slaughterhouse, in order for that food business operator to plan the slaughterhouse activity accordingly.
The food business operator operating the slaughterhouse must evaluate the relevant information and must submit the food chain information received to the official veterinarian. The slaughter or dressing of the animals may not take place until the official veterinarian so permits.
8. Food business operators must check passports accompanying domestic solipeds to ensure that the animal is intended for slaughter for human consumption. If they accept the animal for slaughter, they must give the passport to the official veterinarian.
SECTION IV: REQUIREMENTS APPLICABLE TO FROZEN FOOD OF ANIMAL ORIGIN
1. For the purposes of this Section, ‘date of production’ means:
(a) the date of slaughter in the case of carcasses, half carcasses or quarter carcasses;
(b) the date of killing in the case of bodies of wild game;
(c) the date of harvesting or catching, in the case of fishery products;
(d) the date of processing, cutting, mincing or preparation, as appropriate, for any other food of animal origin.
2. Until the stage at which a food is labelled in accordance with Directive 2000/13/EC or used for further processing, food business operators must ensure that in the case of frozen food of animal origin intended for human consumption, the following information is made available to the food business operator to whom the food is supplied and, upon request, to the competent authority:
(a) the date of production; and (b) the date of freezing, if different from the date of production.
Where a food is made from a batch of raw materials with different dates of production and of freezing, the oldest dates of production and/or of freezing, as appropriate, must be made available.
3. The appropriate form in which the information must be made available is up to the choice of the supplier of the frozen food, as long as the information requested in paragraph 2 will be clearly and unequivocally available to and retrievable by the business operator to whom the food is supplied. ANNEX III
SPECIFIC REQUIREMENTS
SECTION I: MEAT OF DOMESTIC UNGULATES
CHAPTER I: TRANSPORT OF LIVE ANIMALS TO THE SLAUGHTERHOUSE
Food business operators transporting live animals to slaughterhouses must ensure compliance with the following requirements.
1. During collection and transport, animals must be handled carefully without causing unnecessary distress.
2. Animals showing symptoms of disease or originating in herds known to be contaminated with agents of public health importance may only be transported to the slaughterhouse when the competent authority so permits.
CHAPTER II: REQUIREMENTS FOR SLAUGHTERHOUSES
Food business operators must ensure that the construction, layout and equipment of slaughterhouses in which domestic ungulates are slaughtered meet the following requirements.
1. (a) Slaughterhouses must have adequate and hygienic lairage facilities or, climate permitting, waiting pens that are easy to clean and disinfect. These facilities must be equipped for watering the animals and, if necessary, feeding them. The drainage of the wastewater must not compromise food safety.
(b) They must also have separate lockable facilities or, climate permitting, pens for sick or suspect animals with separate draining and sited in such a way as to avoid contamination of other animals, unless the competent authority considers that such facilities are unnecessary.
(c) The size of the lairage facilities must ensure that the welfare of the animals is respected. Their layout must facilitate ante-mortem inspections, including the identification of the animals or groups of animals.
2. To avoid contaminating meat, they must:
(a) have a sufficient number of rooms, appropriate to the operations being carried out;
(b) have a separate room for the emptying and cleaning of stomachs and intestines, unless the competent authority authorises the separation in time of these operations within a specific slaughterhouse on a case-by-case basis;
(c) ensure separation in space or time of the following operations:
(i) stunning and bleeding;
(ii) in the case of porcine animals, scalding, depilation, scraping and singeing;
(iii) evisceration and further dressing;
(iv) handling clean guts and tripe;
(v) preparation and cleaning of other offal, particularly the handling of skinned heads if it does not take place at the slaughter line;
(vi) packaging offal;
and
(vii) dispatching meat; (d) have installations that prevent contact between the meat and the floors, walls and fixtures;
and
(e) have slaughter lines (where operated) that are designed to allow constant progress of the slaughter process and to avoid cross-contamination between the different parts of the slaughter line. Where more than one slaughter line is operated in the same premises, there must be adequate separation of the lines to prevent cross-contamination.
3. They must have facilities for disinfecting tools with hot water supplied at not less than 82 °C, or an alternative system having an equivalent effect.
4. The equipment for washing hands used by the staff engaged in handling exposed meat must have taps designed to prevent the spread of contamination.
5. There must be lockable facilities for the refrigerated storage of detained meat and separate lockable facilities for the storage of meat declared unfit for human consumption.
6. There must be a separate place with appropriate facilities for the cleaning, washing and disinfection of means of transport for livestock. However, slaughterhouses need not have these places and facilities if the competent authority so permits and official authorised places and facilities exist nearby.
7. They must have lockable facilities reserved for the slaughter of sick and suspect animals. This is not essential if this slaughter takes place in other establishments authorised by the competent authority for this purpose, or at the end of the normal slaughter period.
8. If manure or digestive tract content is stored in the slaughterhouse, there must be a special area or place for that purpose.
9. They must have an adequately equipped lockable facility or, where needed, room for the exclusive use of the veterinary service.
CHAPTER III: REQUIREMENTS FOR CUTTING PLANTS
Food business operators must ensure that cutting plants handling meat of domestic ungulates:
1. are constructed so as to avoid contamination of meat, in particular by:
(a) allowing constant progress of the operations;
or
(b) ensuring separation between the different production batches;
2. have rooms for the separate storage of packaged and exposed meat, unless stored at different times or in such a way that the packaging material and the manner of storage cannot be a source of contamination for the meat;
3. have cutting rooms equipped to ensure compliance with the requirements laid down in Chapter V;
4. have equipment for washing hands with taps designed to prevent the spread of contamination, for use by staff engaged in handling exposed meat; and
5. have facilities for disinfecting tools with hot water supplied at not less than 82 °C, or an alternative system having an equivalent effect. CHAPTER IV: SLAUGHTER HYGIENE
Food business operators operating slaughterhouses in which domestic ungulates are slaughtered must ensure compliance with the following requirements.
1. After arrival in the slaughterhouse, the slaughter of the animals must not be unduly delayed. However, where required for welfare reasons, animals must be given a resting period before slaughter.
2. (a) Meat from animals other than those referred to in subparagraphs (b) and (c) must not be used for human consumption if they die otherwise than by being slaughtered in the slaughterhouse.
(b) Only live animals intended for slaughter may be brought into the slaughter premises, with the exception of:
(i) animals that have undergone emergency slaughter outside the slaughterhouse in accordance with Chapter VI;
(ii) animals slaughtered at the place of production in accordance with Section III;
and
(iii) wild game, in compliance with Section IV, Chapter II.
(c) Meat from animals that undergo slaughter following an accident in a slaughterhouse may be used for human consumption if, on inspection, no serious lesions other than those due to the accident are found.
3. The animals or, where appropriate, each batch of animals sent for slaughter must be identified so that their origin can be traced.
4. Animals must be clean.
5. Slaughterhouse operators must follow the instructions of the veterinarian appointed by the competent authority in accordance with Regulation (EC) No 854/2004 to ensure that ante-mortem inspection of every animal to be slaughtered is carried out under suitable conditions.
6. Animals brought into the slaughter hall must be slaughtered without undue delay.
7. Stunning, bleeding, skinning, evisceration and other dressing must be carried out without undue delay and in a manner that avoids contaminating the meat. In particular:
(a) the trachea and oesophagus must remain intact during bleeding, except in the case of slaughter according to a religious custom;
(b) during the removal of hides and fleece:
(i) contact between the outside of the skin and the carcase must be prevented;
and
(ii) operators and equipment coming into contact with the outer surface of hides and fleece must not touch the meat;
(c) measures must be taken to prevent the spillage of digestive tract content during and after evisceration and to ensure that evisceration is completed as soon as possible after stunning;
and
(d) removal of the udder must not result in contamination of the carcase with milk or colostrum. 8. Carcases and other parts of the body intended for human consumption must be completely skinned, except in the case of porcine animals, the heads of ovine and caprine animals and calves, the muzzle and lips of bovine animals and the feet of bovine, ovine and caprine animals. Heads, including muzzle and lips, and feet must be handled in such a way as to avoid contamination.
09. When not skinned, porcine animals must have their bristles removed immediately. The risk of contamination of the meat with scalding water must be minimised. Only approved additives may be used for this operation. Porcine animals must be thoroughly rinsed afterwards with potable water.
10. The carcases must not contain visible faecal contamination. Any visible contamination must be removed without delay by trimming or alternative means having an equivalent effect.
11. Carcases and offal must not come into contact with floors, walls or work stands.
12. Slaughterhouse operators must follow the instructions of the competent authority to ensure that post-mortem inspection of all slaughtered animals is carried out under suitable conditions in accordance with Regulation (EC) No 854/2004.
13. Until post-mortem inspection is completed, parts of a slaughtered animal subject to such inspection must:
(a) remain identifiable as belonging to a given carcase;
and
(b) come into contact with no other carcase, offal or viscera, including those that have already undergone post-mortem inspection.
However, provided that it shows no pathological lesion, the penis may be discarded immediately.
14. Both kidneys must be removed from their fatty covering. In the case of bovine and porcine animals, and solipeds, the peri-renal capsule must also be removed.
15. If the blood or other offal of several animals is collected in the same container before completion of post-mortem inspection, the entire contents must be declared unfit for human consumption if the carcase of one or more of the animals concerned has been declared unfit for human consumption.
16. After post-mortem inspection:
(a) the tonsils of bovine animals, porcine animals and solipeds must be removed hygienically;
(b) parts unfit for human consumption must be removed as soon as possible from the clean sector of the establishment;
(c) meat detained or declared unfit for human consumption and inedible by-products must not come into contact with meat declared fit for human consumption;
and
(d) viscera or parts of viscera remaining in the carcase, except for the kidneys, must be removed entirely and as soon as possible, unless the competent authority authorises otherwise.
17. After completion of slaughter and post-mortem inspection, the meat must be stored in accordance with the requirements laid down in Chapter VII.
18. When destined for further handling:
(a) stomachs must be scalded or cleaned; however, in the case of stomachs of young ruminants intended for rennet production, the stomachs need only be emptied;
(b) intestines must be emptied and cleaned;
(c) heads and feet must be skinned or scalded and depilated; however, when authorised by the competent authority, visibly clean feet may be transported to and skinned or scalded and depilated in an approved establishment further handling the feet for processing into food.
19. Where establishments are approved for the slaughter of different animal species or for the handling of carcases of farmed game and wild game, precautions must be taken to prevent cross-contamination by separation either in time or in space of operations carried out on the different species. Separate facilities for the reception and storage of unskinned carcases of farmed game slaughtered at the farm and for wild game must be available.
20. If the slaughterhouse does not have lockable facilities reserved for the slaughter of sick or suspect animals, the facilities used to slaughter such animals must be cleaned, washed and disinfected under official supervision before the slaughter of other animals is resumed.
CHAPTER V: HYGIENE DURING CUTTING AND BONING
Food business operators must ensure that cutting and boning of meat of domestic ungulates takes place in accordance with the following requirements.
1. Carcases of domestic ungulates may be cut into half-carcases or quarters, and half carcases into no more than three wholesale cuts, in slaughterhouses. Further cutting and boning must be carried out in a cutting plant.
2. The work on meat must be organised in such a way as to prevent or minimise contamination. To this end, food business operators must ensure in particular that:
(a) meat intended for cutting is brought into the workrooms progressively as needed;
(b) during cutting, boning, trimming, slicing, dicing, wrapping and packaging, the meat is maintained at not more than 3 °C for offal and 7 °C for other meat, by means of an ambient temperature of not more than 12 °C or an alternative system having an equivalent effect;
and
(c) where the premises are approved for the cutting of meat of different animal species, precautions are taken to avoid cross-contamination, where necessary by separation of the operations on the different species in either space or time.
3. However, meat may be boned and cut before it reaches the temperature referred to in point 2(b) in accordance with Chapter VII, point 3.
4. Meat may also be boned and cut prior to reaching the temperature referred to in point 2(b) when the cutting room is on the same site as the slaughter premises. In this case, the meat must be transferred to the cutting room either directly from the slaughter premises or after a waiting period in a chilling or refrigerating room. As soon as it is cut and, where appropriate, packaged, the meat must be chilled to the temperature referred to in point 2(b). CHAPTER VI: EMERGENCY SLAUGHTER OUTSIDE THE SLAUGHTERHOUSE
Food business operators must ensure that meat from domestic ungulates that have undergone emergency slaughter outside the slaughterhouse may be used for human consumption only if it complies with all the following requirements.
1. An otherwise healthy animal must have suffered an accident that prevented its transport to the slaughterhouse for welfare reasons.
2. A veterinarian must carry out an ante-mortem inspection of the animal.
3. The slaughtered and bled animal must be transported to the slaughterhouse hygienically and without undue delay. Removal of the stomach and intestines, but no other dressing, may take place on the spot, under the supervision of the veterinarian. Any viscera removed must accompany the slaughtered animal to the slaughterhouse and be identified as belonging to that animal.
4. If more than two hours elapse between slaughter and arrival at the slaughterhouse, the animal must be refrigerated. Where climatic conditions so permit, active chilling is not necessary.
5. A declaration by the food business operator who reared the animal, stating the identity of the animal and indicating any veterinary products or other treatments administered to the animal, dates of administration and withdrawal periods, must accompany the slaughtered animal to the slaughterhouse.
6. A declaration issued by the veterinarian recording the favourable outcome of the ante-mortem inspection, the date and time of, and reason for, emergency slaughter, and the nature of any treatment administered by the veterinarian to the animal, must accompany the slaughtered animal to the slaughterhouse.
7. The slaughtered animal must be fit for human consumption following post-mortem inspection carried out in the slaughterhouse in accordance with Regulation (EC) No 854/2004, including any additional tests required in the case of emergency slaughter.
8. Food business operators must follow any instructions that the official veterinarian may give after post-mortem inspection concerning the use of the meat.
CHAPTER VII: STORAGE AND TRANSPORT
Food business operators must ensure that the storage and transport of meat of domestic ungulates takes place in accordance with the following requirements.
1. (a) Unless other specific provisions provide otherwise, post-mortem inspection must be followed immediately by chilling in the slaughterhouse to ensure a temperature throughout the meat of not more than 3 °C for offal and 7 °C for other meat along a chilling curve that ensures a continuous decrease of the temperature. However, meat may be cut and boned during chilling in accordance with Chapter V, point 4.
(b) During the chilling operations, there must be adequate ventilation to prevent condensation on the surface of the meat. 2. Meat must attain the temperature specified in point 1 and remain at that temperature during storage.
3. Meat must attain the temperature specified in point 1 before transport, and remain at that temperature during transport. However, transport may also take place if the competent authority so authorises to enable the production of specific products, provided that:
(a) such transport takes place in accordance with the requirements that the competent authority specifies in respect of transport from one given establishment to another;
and
(b) the meat leaves the slaughterhouse, or a cutting room on the same site as the slaughter premises, immediately and transport takes no more than two hours.
4. Meat intended for freezing must be frozen without undue delay, taking into account where necessary a stabilisation period before freezing.
5. Exposed meat must be stored and transported separately from packaged meat, unless stored or transported at different times or in such a way that the packaging material and the manner of storage or transport cannot be a source of contamination for the meat.
SECTION II: MEAT FROM POULTRY AND LAGOMORPHS
CHAPTER I: TRANSPORT OF LIVE ANIMALS TO THE SLAUGHTERHOUSE
Food business operators transporting live animals to slaughterhouses must ensure compliance with the following requirements.
1. During collection and transport, animals must be handled carefully without causing unnecessary distress.
2. Animals showing symptoms of disease or originating in flocks known to be contaminated with agents of public-health importance may only be transported to the slaughterhouse when permitted by the competent authority.
3. Crates for delivering animals to the slaughterhouse and modules, where used, must be made of non-corrodible material and be easy to clean and disinfect. Immediately after emptying and, if necessary, before re-use, all equipment used for collecting and delivering live animals must be cleaned, washed and disinfected.
CHAPTER II: REQUIREMENTS FOR SLAUGHTERHOUSES
Food business operators must ensure that the construction, layout and equipment of slaughterhouses in which poultry or lagomorphs are slaughtered meet the following requirements.
1. They must have a room or covered space for the reception of the animals and for their inspection before slaughter.
2. To avoid contaminating meat, they must:
(a) have a sufficient number of rooms, appropriate to the operations being carried out;
(b) have a separate room for evisceration and further dressing, including the addition of seasonings to whole poultry carcases, unless the competent authority authorises separation in time of these operations within a specific slaughterhouse on a case-by-case basis; (c) ensure separation in space or time of the following operations:
(i) stunning and bleeding;
(ii) plucking or skinning, and any scalding;
and
(iii) dispatching meat;
(d) have installations that prevent contact between the meat and the floors, walls and fixtures;
and
(e) have slaughter lines (where operated) that are designed to allow a constant progress of the slaughter process and to avoid cross-contamination between the different parts of the slaughter line. Where more than one slaughter line is operated in the same premises, there must be adequate separation of the lines to prevent cross-contamination.
3. They must have facilities for disinfecting tools with hot water supplied at not less than 82 °C, or an alternative system having an equivalent effect.
4. The equipment for washing hands used by the staff engaged in handling exposed meat must have taps designed to prevent the spread of contamination.
5. There must be lockable facilities for the refrigerated storage of detained meat and separate lockable facilities for the storage of meat declared unfit for human consumption.
6. There must be a separate place with appropriate facilities for the cleaning, washing and disinfection of:
(a) transport equipment such as crates;
and
(b) means of transport.
These places and facilities are not compulsory for (b) if officially authorised places and facilities exist nearby.
7. They must have an adequately equipped lockable facility or, where needed, room for the exclusive use of the veterinary service.
CHAPTER III: REQUIREMENTS FOR CUTTING PLANTS
1. Food business operators must ensure that cutting plants handling meat from poultry or lagomorphs:
(a) are constructed so as to avoid contamination of meat, in particular by:
(i) allowing constant progress of the operations;
or
(ii) ensuring separation between the different production batches;
(b) have rooms for the separate storage of packaged and exposed meat, unless stored at different times or in such a way that the packaging material and the manner of storage cannot be a source of contamination for the meat;
(c) have cutting rooms equipped to ensure compliance with the requirements laid down in Chapter V; (d) have equipment for washing hands used by staff handling exposed meat with taps designed to prevent the spread of contamination;
and
(e) have facilities for disinfecting tools with hot water supplied at not less than 82 °C, or an alternative system having an equivalent effect.
2. If the following operations are undertaken in a cutting plant:
(a) the evisceration of geese and ducks reared for the production of ‘foie gras’, which have been stunned, bled and plucked on the fattening farm;
or
(b) the evisceration of delayed eviscerated poultry,
food business operators must ensure that separate rooms are available for that purpose.
CHAPTER IV: SLAUGHTER HYGIENE
Food business operators operating slaughterhouses in which poultry or lago-morphs are slaughtered must ensure compliance with the following requirements.
1. (a) Meat from animals other than those referred to in (b) must not be used for human consumption if they die otherwise than by being slaughtered in the slaughterhouse.
(b) Only live animals intended for slaughter may be brought into the slaughter premises, with the exception of:
(i) delayed eviscerated poultry, geese and ducks reared for the production of ‘foie gras’ and birds that are not considered as domestic but which are farmed as domestic animals, if slaughtered at the farm in accordance with Chapter VI;
(ii) farmed game slaughtered at the place of production in accordance with Section III;
and
(iii) small wild game in accordance with Section IV, Chapter III.
2. Slaughterhouse operators must follow the instructions of the competent authority to ensure that ante-mortem inspection is carried out under suitable conditions.
3. Where establishments are approved for the slaughter of different animal species or for the handling of farmed ratites and small wild game, precautions must be taken to prevent cross contamination by separation either in time or in space of the operations carried out on the different species. Separate facilities for the reception and storage of carcases of farmed ratites slaughtered at the farm and for small wild game must be available.
4. Animals brought into the slaughter room must be slaughtered without undue delay.
5. Stunning, bleeding, skinning or plucking, evisceration and other dressing must be carried out without undue delay in such a way that contamination of the meat is avoided. In particular, measures must be taken to prevent the spillage of digestive tract contents during evisceration.
6. Slaughterhouse operators must follow the instructions of the competent authority to ensure that the post-mortem inspection is carried out under suitable conditions, and in particular that slaughtered animals can be inspected properly.
7. After post-mortem inspection:
(a) parts unfit for human consumption must be removed as soon as possible from the clean sector of the establishment;
(b) meat detained or declared unfit for human consumption and inedible by-products must not come into contact with meat declared fit for human consumption;
and
(c) viscera or parts of viscera remaining in the carcase, except for the kidneys, must be removed entirely, if possible, and as soon as possible, unless otherwise authorised by the competent authority.
8. After inspection and evisceration, slaughtered animals must be cleaned and chilled to not more than 4 °C as soon as possible, unless the meat is cut while warm.
9. When carcases are subjected to an immersion chilling process, account must be taken of the following.
(a) Every precaution must be taken to avoid contamination of carcases, taking into account parameters such as carcase weight, water temperature, volume and direction of water flow and chilling time.
(b) Equipment must be entirely emptied, cleaned and disinfected whenever this is necessary and at least once a day.
10. Sick or suspect animals, and animals slaughtered in application of disease eradication or control programmes, must not be slaughtered in the establishment except when permitted by the competent authority. In that event, slaughter must be performed under official supervision and steps taken to prevent contamination; the premises must be cleaned and disinfected before being used again.
CHAPTER V: HYGIENE DURING AND AFTER CUTTING AND BONING
Food business operators must ensure that cutting and boning of meat of poultry and lagomorphs takes place in accordance with the following requirements.
1. The work on meat must be organised in such a way as to prevent or minimise contamination. To this end, food business operators must ensure in particular that:
(a) meat intended for cutting is brought into the workrooms progressively as needed;
(b) during cutting, boning, trimming, slicing, dicing, wrapping and packaging, the temperature of the meat is maintained at not more than 4 °C by means of an ambient temperature of 12 °C or an alternative system having an equivalent effect;
and
(c) where the premises are approved for the cutting of meat of different animal species, precautions are taken to avoid cross-contamination, where necessary by separation of the operations on the different species in either space or time.
2. However, meat may be boned and cut prior to reaching the temperature referred to in point 1(b) when the cutting room is on the same site as the slaughter premises, provided that it is transferred to the cutting room either:
(a) directly from the slaughter premises;
or
(b) after a waiting period in a chilling or refrigerating room. 3. As soon as the meat is cut and, where appropriate, packaged, it must be chilled to a temperature of not more than 4 °C.
4. Meat must attain a temperature of not more than 4 °C before transport, and be maintained at that temperature during transport. However, if the competent authority so authorises, livers for the production of foie gras may be transported at a temperature of more than 4 °C, provided that:
(a) such transport takes place in accordance with the requirements that the competent authority specifies in respect of transport from one given establishment to another; and
(b) the meat leaves the slaughterhouse, or a cutting room immediately and transport takes no more than two hours.
5. Meat derived from poultry and lagomorphs intended for freezing must be frozen without undue delay.
6. Exposed meat must be stored and transported separately from packaged meat, unless stored or transported at different times or in such a way that the packaging material and the manner of storage or transport cannot be a source of contamination for the meat.
CHAPTER VI: SLAUGHTER ON THE FARM
Food business operators may slaughter poultry referred to in Chapter IV, point 1(b)(i), on the farm only with the authorisation of the competent authority and in compliance with the following requirements.
1. The farm must undergo regular veterinary inspection.
2. The food business operator must inform the competent authority in advance of the date and time of slaughter.
3. The holding must have facilities for concentrating the birds to allow an ante-mortem inspection of the group to be made.
4. The holding must have premises suitable for the hygienic slaughter and further handling of the birds.
5. Animal welfare requirements must be complied with.
6. The slaughtered birds must be accompanied to the slaughterhouse by a declaration by the food business operator who reared the animal indicating any veterinary products or other treatments administered to the animal, dates of administration and withdrawal periods, and the date and time of slaughter.
7. The slaughtered animal must be accompanied to the slaughterhouse by a certificate issued by the official veterinarian or approved veterinarian in accordance with Regulation (EC) No 854/2004.
8. In the case of poultry reared for the production of ‘foie gras’, the uneviscerated birds must be transported immediately and, if necessary, refrigerated to a slaughterhouse or cutting plant. They must be eviscerated within 24 hours of slaughter under the supervision of the competent authority.
9. Delayed eviscerated poultry obtained at the farm of production may be kept for up to 15 days at a temperature of not more than 4 °C. It must then be eviscerated in a slaughterhouse or in a cutting plant located in the same Member State as the farm of production. CHAPTER VII: WATER RETENTION AGENTS
Food business operators shall ensure that poultrymeat that has been treated specifically to promote water retention is not placed on the market as fresh meat but as meat preparations or used for the production of processed products.
SECTION III: MEAT OF FARMED GAME
1. The provisions of Section I apply to the production and placing on the market of meat from even-toed farmed game mammals (Cervidae and Suidae), unless the competent authority considers them inappropriate.
2. The provisions of Section II apply to the production and placing on the market of meat from ratites. However, those of Section I apply where the competent authority considers them appropriate. Appropriate facilities must be provided, adapted to the size of the animals.
3. Notwithstanding points 1 and 2, food business operators may slaughter farmed ratites and farmed ungulates referred to in point 1 at the place of origin with the authorisation of the competent authority if:
(a) the animals cannot be transported, to avoid any risk for the handler or to protect the welfare of the animals;
(b) the herd undergoes regular veterinary inspection;
(c) the owner of the animals submits a request;
(d) the competent authority is informed in advance of the date and time of slaughter of the animals;
(e) the holding has procedures for concentrating the animals to allow an ante-mortem inspection of the group to be made;
(f) the holding has facilities suitable for the slaughter, bleeding and, where ratites are to be plucked, plucking of the animals;
(g) animal welfare requirements are complied with;
(h) slaughtered and bled animals are transported to the slaughterhouse hygienically and without undue delay. If transport takes more than two hours, the animals are, if necessary, refrigerated. Evisceration may take place on the spot, under the supervision of the veterinarian;
(i) a declaration by the food business operator who reared the animals, stating their identity and indicating any veterinary products or other treatments administered, dates of administration and withdrawal periods, accompanies the slaughtered animals to the slaughterhouse;
and
(j) during transport to the approved establishment, a certificate issued and signed by the official veterinarian or approved veterinarian, attesting to a favourable result of the ante-mortem inspection, correct slaughter and bleeding and the date and time of slaughter, accompanies the slaughtered animals.
3a. By way of derogation from point 3(j), the competent authority may authorise that the attestation of the correct slaughter and bleeding and of the date and time of slaughter be included only in the declaration by the food business operator referred to in point 3(i), provided that:
(a) the holding is situated in a Member State or region, as defined in Article 2(2)(p) of Directive 64/432/EEC which is not under health restrictions in accordance with Union law or national legislation; (b) the food business operator has demonstrated the appropriate level of competence to slaughter animals without causing the animals any avoidable pain, distress or suffering in accordance with Article 7(2) of Regulation (EC) No 1099/2009 and without prejudice to Article 12 of that Regulation.
4. Food business operators may also slaughter bison on the farm in accordance with point 3 in exceptional circumstances.
SECTION IV: WILD GAME MEAT
CHAPTER I: TRAINING OF HUNTERS IN HEALTH AND HYGIENE
1. Persons who hunt wild game with a view to placing it on the market for human consumption must have sufficient knowledge of the pathology of wild game, and of the production and handling of wild game and wild game meat after hunting, to undertake an initial examination of wild game on the spot.
2. It is however enough if at least one person of a hunting team has the knowledge referred to in point 1. References in this Section to a ‘trained person’ are references to that person.
3. The trained person could also be the gamekeeper or the game manager if he or she is part of the hunting team or located in the immediate vicinity of where hunting is taking place. In the latter case, the hunter must present the wild game to the gamekeeper or game manager and inform them of any abnormal behaviour observed before killing.
4. Training must be provided to the satisfaction of the competent authority to enable hunters to become trained persons. It should cover at least the following subjects:
(a) the normal anatomy, physiology and behaviour of wild game;
(b) abnormal behaviour and pathological changes in wild game due to diseases, environmental contamination or other factors which may affect human health after consumption;
(c) the hygiene rules and proper techniques for the handling, transportation, evisceration, etc. of wild game animals after killing;
and
(d) legislation and administrative provisions on the animal and public health and hygiene conditions governing the placing on the market of wild game.
5. The competent authority should encourage hunters’ organisations to provide such training.
CHAPTER II: HANDLING OF LARGE WILD GAME
1. After killing, large wild game must have their stomachs and intestines removed as soon as possible and, if necessary, be bled.
2. The trained person must carry out an examination of the body, and of any viscera removed, to identify any characteristics that may indicate that the meat presents a health risk. The examination must take place as soon as possible after killing.
3. Meat of large wild game may be placed on the market only if the body is transported to a game-handling establishment as soon as possible after the examination referred to in point 2. The viscera must accompany the body as specified in point 4. The viscera must be identifiable as belonging to a given animal.
4. (a) If no abnormal characteristics are found during the examination referred to in point 2, no abnormal behaviour was observed before killing, and there is no suspicion of environmental contamination, the trained person must attach to the animal body a numbered declaration stating this. This declaration must also indicate the date, time and place of killing.
The declaration need not be attached to the animal body and may cover more than one animal body, provided that each animal body is appropriately identified and the declaration bears an indication of the identification number of each animal body covered by it, with the corresponding date, time and place of killing. All animal bodies covered by a single declaration may only be sent to a single game-handling establishment.
The head and the viscera need not accompany the body to the game-handling establishment, except in the case of species susceptible to trichinosis (porcine animals, solipeds and others), whose heads (except for tusks) and diaphragm must accompany the body.
However, the competent authority may authorise that heads of animals susceptible to Trichinella infestation be sent to a technical plant for the production of game trophies, which has been approved in accordance with Article 18 of Regulation (EC) No 1774/2002. The technical plant shall be indicated in the declaration of the trained person. A copy of that declaration shall be sent to the technical plant. Where the results of the Trichinella examination of the carcase are positive, the competent authority shall carry out an official check to verify the proper handling of the head in the technical plant.
However, hunters must comply with any additional requirements imposed in the Member State where hunting takes place, in particular to permit the monitoring of certain residues and substances in accordance with Directive 96/23/EC.
(b) In other circumstances, the head (except for tusks, antlers and horns) and all the viscera except for the stomach and intestines must accompany the body. The trained person who carried out the examination must inform the competent authority of the abnormal characteristics, abnormal behaviour or suspicion of environmental contamination that prevented him or her from making a declaration in accordance with (a);
(c) If no trained person is available to carry out the examination referred to in point 2 in a particular case, the head (except for tusks, antlers and horns) and all the viscera except for the stomach and the intestines must accompany the body.
5. Chilling must begin within a reasonable period of time after killing and achieve a temperature throughout the meat of not more than 7 °C. Where climatic conditions so permit, active chilling is not necessary.
6. During transport to the game-handling establishment, heaping must be avoided.
7. Large wild game delivered to a game-handling establishment must be presented to the competent authority for inspection.
8. In addition, unskinned large wild game:
(a) may be skinned and placed on the market only if:
(i) before skinning, it is stored and handled separately from other food and it is not frozen;
(ii) after skinning, it undergoes a final inspection in a game-handling establishment in accordance with Regulation (EC) No 854/2004, (b) may be sent to a game handling establishment in another Member State only if, during transport to that game-handling establishment, it is accompanied by a certificate conforming to the specimen set out in the Annex to Commission Implementing Regulation (EU) No 636/2014 (1) issued and signed by an official veterinarian, attesting that the requirements set out in point 4 as regards the availability of a declaration, when relevant, and the accompaniment of relevant parts of the body, have been complied with.
In case the game handling establishment, close to the hunting area, is in another Member State, transport to this game handling establishment need not be accompanied by the certificate but by the declaration of the trained person referred to in point 2 to comply with Article 3(1) of Directive 89/662/EEC, taking into account the animal health status of the Member State of origin.
9. The rules laid down in Section I, Chapter V, apply to the cutting and boning of large wild game.
CHAPTER III: HANDLING OF SMALL WILD GAME
1. The trained person must carry out an examination to identify any characteristics that may indicate that the meat presents a health risk. The examination must take place as soon as possible after killing.
2. If abnormal characteristics are found during the examination, abnormal behaviour was observed before killing, or environmental contamination is suspected, the trained person must inform the competent authority.
3. Meat of small wild game may be placed on the market only if the body is transported to a game-handling establishment as soon as possible after the examination referred to in point 1.
4. Chilling must begin within a reasonable period of time of killing and achieve a temperature throughout the meat of not more than 4 °C. Where climatic conditions so permit, active chilling is not necessary.
5. Evisceration must be carried out, or completed, without undue delay upon arrival at the game-handling establishment, unless the competent authority permits otherwise.
6. Small wild game delivered to a game-handling establishment must be presented to the competent authority for inspection.
7. The rules laid down in Section II, Chapter V, apply to the cutting and boning of small wild game.
SECTION V: MINCED MEAT, MEAT PREPARATIONS AND MECHANICALLY SEPARATED MEAT (MSM)
CHAPTER I: REQUIREMENTS FOR PRODUCTION ESTABLISHMENTS
Food business operators operating establishments producing minced meat, meat preparations or MSM must ensure that they:
1. are constructed so as to avoid contamination of meat and products, in particular by:
(a) allowing constant progress of the operations;
or
(b) ensuring separation between the different production batches;
2. have rooms for the separate storage of packaged and exposed meat and products, unless stored at different times or in such a way that the packaging material and the manner of storage cannot be a source of contamination for the meat or products;
3. have rooms equipped to ensure compliance with the temperature requirements laid down in Chapter III;
(1) OJ L 175, 14.6.2014, p. 16. 4. have equipment for washing hands used by staff handling exposed meat and products with taps designed to prevent the spread of contamination;
and
5. have facilities for disinfecting tools with hot water supplied at not less than 82 °C, or an alternative system having an equivalent effect.
CHAPTER II: REQUIREMENTS FOR RAW MATERIAL
Food business operators producing minced meat, meat preparations or MSM must ensure that the raw materials used satisfy the following requirements.
1. The raw material used to prepare minced meat must meet the following requirements.
(a) It must comply with the requirements for fresh meat;
(b) It must derive from skeletal muscle, including adherent fatty tissues;
(c) It must not derive from:
(i) scrap cuttings and scrap trimmings (other than whole muscle cuttings);
(ii) MSM;
(iii) meat containing bone fragments or skin;
or
(iv) meat of the head with the exception of the masseters, the non-muscular part of the linea alba, the region of the carpus and the tarsus, bone scrapings and the muscles of the diaphragm (unless the serosa has been removed).
2. The following raw material may be used to prepare meat preparations:
(a) fresh meat;
(b) meat meeting the requirements of point 1;
and
(c) if the meat preparation is clearly not intended to be consumed without first undergoing heat treatment:
(i) meat derived from the mincing or fragmentation of meat meeting the requirements of point 1 other than point 1(c)(i);
and
(ii) MSM meeting the requirements of Chapter III, point 3(d).
3. The raw material used to produce MSM must meet the following requirements.
(a) It must comply with the requirements for fresh meat;
(b) The following material must not be used to produce MSM:
(i) for poultry, the feet, neckskin and head;
and
(ii) for other animals, the bones of the head, feet, tails, femur, tibia, fibula, humerus, radius and ulna.
CHAPTER III: HYGIENE DURING AND AFTER PRODUCTION
Food business operators producing minced meat, meat preparations or MSM must ensure compliance with the following requirements.
1. The work on meat must be organised in such a way as to prevent or minimise contamination. To this end, food business operators must ensure in particular that the meat used is:
(a) at a temperature of not more than 4 °C for poultry, 3 °C for offal and 7 °C for other meat;
and
(b) brought into the preparation room progressively as needed.
2. The following requirements apply to the production of minced meat and meat preparations.
(a) Unless the competent authority authorises boning immediately before mincing, frozen or deep-frozen meat used for the preparation of minced meat or meat preparations must be boned before freezing. It may be stored only for a limited period.
(b) When prepared from chilled meat, minced meat must be prepared:
(i) in the case of poultry, within no more than three days of their slaughter;
(ii) in the case of animal other than poultry, within no more than six days of their slaughter;
or
(iii) within no more than 15 days from the slaughter of the animals in the case of boned, vacuum-packed beef and veal.
(c) Immediately after production, minced meat and meat preparations must be wrapped or packaged and be:
(i) chilled to an internal temperature of not more than 2 °C for minced meat and 4 °C for meat preparations;
or
(ii) frozen to an internal temperature of not more than -18 °C.
These temperature conditions must be maintained during storage and transport.
3. The following requirements apply to the production and use of MSM produced using techniques that do not alter the structure of the bones used in the production of MSM and the calcium content of which is not significantly higher than that of minced meat.
(a) Raw material for deboning from an on-site slaughterhouse must be no more than seven days old; otherwise, raw material for deboning must be no more than five days old. However, poultry carcases must be no more than three days old.
(b) Mechanical separation must take place immediately after deboning.
(c) If not used immediately after being obtained, MSM must be wrapped or packaged and then chilled to a temperature of not more than 2 °C or frozen to an internal temperature of not more than –18 °C. These temperature requirements must be maintained during storage and transport.
(d) If the food business operator has carried out analyses demonstrating that MSM complies with the microbiological criteria for minced meat adopted in accordance with Regulation (EC) No 852/2004 it may be used in meat preparations that are clearly not intended to be consumed without first undergoing heat treatment and in meat products.
(e) MSM not shown to comply with the criteria referred to in (d) may be used only to manufacture heat-treated meat products in establishments approved in accordance with this Regulation. 4. The following requirements apply to the production and use of MSM produced using techniques other than those mentioned in point 3.
(a) Raw material for deboning from an on-site slaughterhouse must be no more than seven days old; otherwise, raw material for deboning must be no more than five days old. However, poultry carcases must be no more than three days old.
(b) If mechanical separation does not take place immediately after deboning the flesh-bearing bones must be stored and transported at a temperature of not more than 2 °C or, if frozen, at a temperature of not more than -18 °C.
(c) Flesh-bearing bones obtained from frozen carcases must not be refrozen.
(d) If not used within one hour of being obtained, MSM must be chilled immediately to a temperature of not more than 2 °C.
(e) If, after chilling, MSM is not processed within 24 hours, it must be frozen within 12 hours of production and reach an internal temperature of not more than –18 °C within six hours.
(f) Frozen MSM must be wrapped or packaged before storage or transport, must not be stored for more than three months and must be maintained at a temperature of not more than –18 °C during storage and transport.
(g) MSM may be used only to manufacture heat-treated meat products in establishments approved in accordance with this Regulation.
5. Minced meat, meat preparations and MSM must not be re-frozen after thawing.
CHAPTER IV: LABELLING
1. In addition to the requirements of Directive 2000/13/EC (1), food business operators must ensure compliance with the requirement of point 2 if, and to the extent that, national rules in the Member State in the territory of which the product is placed on the market so require.
2. Packages intended for supply to the final consumer containing minced meat from poultry or solipeds or meat preparations containing MSM must bear a notice indicating that such products should be cooked before consumption.
SECTION VI: MEAT PRODUCTS
1. Food business operators must ensure that the following items are not used in the preparation of meat products:
(a) genital organs of either female or male animals, except testicles;
(b) urinary organs, except the kidneys and the bladder;
(c) the cartilage of the larynx, the trachea and the extra-lobular bronchi;
(d) eyes and eyelids;
(e) the external auditory meatus;
(f) horn tissue;
and
(g) in poultry, the head — except the comb and the ears, the wattles and caruncles — the oesophagus, the crop, the intestines and the genital organs.
(1) Directive 2000/13/EC of the European Parliament and of the Council of 20 March 2000 on the approximation of the laws of the Member States relating to the labelling, presentation and advertising of foodstuffs (OJ L 109, 6.5.2000, p. 29). Directive as last amended by Directive 2003/89/EC (OJ L 308, 25.11.2003, p. 15). 2. All meat, including minced meat and meat preparations, used to produce meat product must meet the requirements for fresh meat. However, minced meat and meat preparations used to produce meat products need not satisfy other specific requirements of Section V.
SECTION VII: LIVE BIVALVE MOLLUSCS
1. This Section applies to live bivalve molluscs. With the exception of the provisions on purification, it also applies to live echinoderms, live tunicates and live marine gastropods. Provisions on classification of production areas set out in Chapter II part A of that Section do not apply to marine gastropods which are not filter feeders.
2. Chapters I to VIII apply to animals harvested from production areas that the competent authority has classified in accordance with Regulation (EC) No 854/2004. Chapter IX applies to pectinidae harvested outside those areas.
3. Chapters V, VI, VIII and IX, and point 3 of Chapter VII, apply to retail.
4. The requirements of this Section supplement those laid down in Regulation (EC) No 852/2004:
(a) In the case of operations that take place before live bivalve molluscs arrive at a dispatch or purification centre, they supplement the requirements of Annex I to that Regulation.
(b) In the case of other operations, they supplement the requirements of Annex II to that Regulation.
CHAPTER I: GENERAL REQUIREMENTS FOR THE PLACING ON THE MARKET OF LIVE BIVALVE MOLLUSCS
1. Live bivalve molluscs may not be placed on the market for retail sale otherwise than via a dispatch centre, where an identification mark must be applied in accordance with Chapter VII.
2. Food business operators may accept batches of live bivalve molluscs only if the documentary requirements set out in points 3 to 7 have been complied with.
3. Whenever a food business operator moves a batch of live bivalve molluscs between establishments, up to and including the arrival of the batch at a dispatch centre or processing establishment, a registration document must accompany the batch.
4. The registration document must be in at least one official language of the Member State in which the receiving establishment is located and contain at least the information specified below.
(a) In the case of a batch of live bivalve molluscs sent from a production area, the registration document must contain at least the following information:
(i) the gatherer's identity and address;
(ii) the date of harvesting;
(iii) the location of the production area described in as precise detail as is practicable or by a code number;
(iv) the health status of the production area;
(v) the shellfish species and quantity;
and
(vi) the destination of the batch. (b) In the case of a batch of live bivalve molluscs sent from a relaying area, the registration document must contain at least the information referred to in (a) and the following information:
(i) the location of the relaying area;
and
(ii) the duration of relaying.
(c) In the case of a batch of live bivalve molluscs sent from a purification centre, the registration document must contain at least the information referred to in (a) and the following information:
(i) the address of the purification centre;
(ii) the duration of purification;
and
(iii) the dates on which the batch entered and left the purification centre.
5. Food business operators sending batches of live bivalve molluscs must complete the relevant sections of the registration document so that they are easy to read and cannot be altered. Food business operators receiving batches must date-stamp the document on receipt of the batch or record the date of receipt in another manner.
6. Food business operators must keep a copy of the registration document relating to each batch sent and received for at least twelve months after its dispatch or receipt (or such longer period as the competent authority may specify).
7. However, if:
(a) the staff gathering live bivalve molluscs also operate the dispatch centre, purification centre, relaying area or processing establishment receiving the live bivalve molluscs;
and
(b) a single competent authority supervises all the establishments concerned,
registration documents are not necessary if that competent authority so permits.
CHAPTER II: HYGIENE REQUIREMENTS FOR THE PRODUCTION AND HARVESTING OF LIVE BIVALVE MOLLUSCS
A. REQUIREMENTS FOR PRODUCTION AREAS
1. Gatherers may only harvest live bivalve molluscs from production areas with fixed locations and boundaries that the competent authority has classified — where appropriate, in cooperation with food business operators — as being of class A, B or C in accordance with Regulation (EC) No 854/2004.
2. Food business operators may place live bivalve molluscs collected from class A production areas on the market for direct human consumption only if they meet the requirements of Chapter V.
3. Food business operators may place live bivalve molluscs collected from class B production areas on the market for human consumption only after treatment in a purification centre or after relaying.
4. Food business operators may place live bivalve molluscs collected from class C production areas on the market for human consumption only after relaying over a long period in accordance with Part C of this Chapter.
5. After purification or relaying, live bivalve molluscs from class B or C production areas must meet all of the requirements of Chapter V. However, live bivalve molluscs from such areas that have not been submitted for purification or relaying may be sent to a processing establishment, where they must undergo treatment to eliminate pathogenic micro-organisms (where appropriate, after removal of sand, mud or slime in the same or another establishment). The permitted treatment methods are:
(a) sterilisation in hermetically sealed containers;
and
(b) heat treatments involving:
(i) immersion in boiling water for the period required to raise the internal temperature of the mollusc flesh to not less than 90 °C and maintenance of this minimum temperature for a period of not less than 90 seconds;
(ii) cooking for three to five minutes in an enclosed space where the temperature is between 120 and 160 °C and the pressure is between 2 and 5 kg/cm², followed by shelling and freezing of the flesh to a core temperature of –20 °C;
and
(iii) steaming under pressure in an enclosed space satisfying the requirements relating to cooking time and the internal temperature of the mollusc flesh mentioned under (i). A validated methodology must be used. Procedures based on the HACCP principles must be in place to verify the uniform distribution of heat.
6. Food business operators must not produce live bivalve molluscs in, or harvest them from, areas that the competent authority has not classified, or which are unsuitable for health reasons. Food business operators must take account of any relevant information concerning areas' suitability for production and harvesting, including information obtained from own-checks and the competent authority. They must use this information, particularly information on environmental and weather conditions, to determine the appropriate treatment to apply to harvested batches.
B. REQUIREMENTS FOR HARVESTING AND HANDLING FOLLOWING HARVESTING
Food business operators harvesting live bivalve molluscs, or handling them immediately after harvesting, must ensure compliance with the following requirements.
1. Harvesting techniques and further handling must not cause additional contamination or excessive damage to the shells or tissues of the live bivalve molluscs or result in changes significantly affecting their suitability for treatment by purification, processing or relaying. Food business operators must in particular:
(a) adequately protect live bivalve molluscs from crushing, abrasion or vibration;
(b) not expose live bivalve molluscs to extreme temperatures; (c) not re-immersing live bivalve molluscs in water that could cause additional contamination;
and
(d) if carrying out conditioning in natural sites, use only areas that the competent authority has classified as being of class A.
2. Means of transport must permit adequate drainage, be equipped to ensure the best survival conditions possible and provide efficient protection against contamination.
C. REQUIREMENTS FOR RELAYING LIVE BIVALVE MOLLUSCS
Food business operators relaying live bivalve molluscs must ensure compliance with the following requirements.
1. Food business operators may use only those areas that the competent authority has approved for relaying live bivalve molluscs. Buoys, poles or other fixed means must clearly identify the boundaries of the sites. There must be a minimum distance between relaying areas, and also between relaying areas and production areas, so as to minimise any risk of the spread of contamination.
2. Conditions for relaying must ensure optimal conditions for purification. In particular, food business operators must:
(a) use techniques for handling live bivalve molluscs intended for relaying that permit the resumption of filter-feeding activity after immersion in natural waters;
(b) not relay live bivalve molluscs at a density that prevents purification;
(c) immerse live bivalve molluscs in seawater at the relaying area for an appropriate period, fixed depending on the water temperature, which period must be of at least two months’ duration unless the competent authority agrees to a shorter period on the basis of the food business operator’s risk analysis;
and
(d) ensure sufficient separation of sites within a relaying area to prevent mixing of batches; the ‘all in, all out’ system must be used, so that a new batch cannot be brought in before the whole of the previous batch has been removed.
3. Food business operators managing relaying areas must keep permanent records of the source of live bivalve molluscs, relaying periods, relaying areas used and the subsequent destination of the batch after relaying, for inspection by the competent authority.
CHAPTER III: STRUCTURAL REQUIREMENTS FOR DISPATCH AND PURIFICATION CENTRES
1. The location of premises on land must not be subject to flooding by ordinary high tides or run-off from surrounding areas.
2. Tanks and water storage containers must meet the following requirements:
(a) Internal surfaces must be smooth, durable, impermeable and easy to clean. (b) They must be constructed so as to allow complete draining of water.
(c) Any water intake must be situated in a position that avoids contamination of the water supply.
3. In addition, in purification centres, purification tanks must be suitable for the volume and type of products to be purified.
CHAPTER IV: HYGIENE REQUIREMENTS FOR PURIFICATION AND DISPATCH CENTRES
A. REQUIREMENTS FOR PURIFICATION CENTRES
Food business operators purifying live bivalve molluscs must ensure compliance with the following requirements.
1. Before purification commences, live bivalve molluscs must be washed free of mud and accumulated debris using clean water.
2. Operation of the purification system must allow live bivalve molluscs rapidly to resume and to maintain filter-feeding activity, to eliminate sewage contamination, not to become re-contaminated and to be able to remain alive in a suitable condition after purification for wrapping, storage and transport before being placed on the market.
3. The quantity of live bivalve molluscs to be purified must not exceed the capacity of the purification centre. The live bivalve molluscs must be continuously purified for a period sufficient to achieve compliance with the health standards of Chapter V and microbiological criteria adopted in accordance with Regulation (EC) No 852/2004.
4. Should a purification tank contain several batches of live bivalve molluscs, they must be of the same species and the length of the treatment must be based on the time required by the batch needing the longest period of purification.
5. Containers used to hold live bivalve molluscs in purification systems must have a construction that allows clean seawater to flow through. The depth of layers of live bivalve molluscs must not impede the opening of shells during purification.
6. No crustaceans, fish or other marine species may be kept in a purification tank in which live bivalve molluscs are undergoing purification.
7. Every package containing purified live bivalve molluscs sent to a dispatch centre must be provided with a label certifying that all molluscs have been purified.
B. REQUIREMENTS FOR DISPATCH CENTRES
Food business operators operating dispatch centres must ensure compliance with the following requirements.
1. Handling of live bivalve molluscs, particularly conditioning, calibration, wrapping and packing, must not cause contamination of the product or affect the viability of the molluscs.
2. Before dispatch, the shells of live bivalve molluscs must be washed thoroughly with clean water.
3. Live bivalve molluscs must come from:
(a) a class A production area;
(b) a relaying area;
(c) a purification centre;
or
(d) another dispatch centre.
4. The requirements laid down in points 1 and 2 also apply to dispatch centres situated on board vessels. Molluscs handled in such centres must come from a class A production area or a relaying area.
CHAPTER V: HEALTH STANDARDS FOR LIVE BIVALVE MOLLUSCS
In addition to ensuring compliance with microbiological criteria adopted in accordance with Regulation (EC) No 852/2004, food business operators must ensure that live bivalve molluscs placed on the market for human consumption meet the standards laid down in this Chapter.
1. They must have organoleptic characteristics associated with freshness and viability, including shells free of dirt, an adequate response to percussion and normal amounts of intravalvular liquid.
2. They must not contain marine biotoxins in total quantities (measured in the whole body or any part edible separately) that exceed the following limits:
(a) for paralytic shellfish poison (PSP), 800 micrograms per kilogram;
(b) for amnesic shellfish poison (ASP), 20 milligrams of domoic acid per kilogram;
(c) for okadaic acid, dinophysistoxins and pectenotoxins together, 160 micrograms of okadaic acid equivalents per kilogram;
(d) for yessotoxins, 3,75 milligrams of yessotoxin equivalent per kilogram;
(e) for azaspiracids, 160 micrograms of azaspiracid equivalents per kilogram.
CHAPTER VI: WRAPPING AND PACKAGING OF LIVE BIVALVE MOLLUSCS
1. Oysters must be wrapped or packaged with the concave shell downwards.
2. All packages of live bivalve molluscs leaving dispatch centres or destined for another dispatch centre, must be closed. Packages of live bivalve molluscs, intended for direct retail sale, must remain closed until they are presented for sale to the final consumer.
CHAPTER VII: IDENTIFICATION MARKING AND LABELLING
1. The label, including the identification mark, must be waterproof.
2. In addition to the general requirements for identification marks contained in Annex II, Section I, the following information must be present on the label:
(a) the species of bivalve mollusc (common name and scientific name);
and
(b) the date of packaging, comprising at least the day and the month.
By way of derogation from Directive 2000/13/EC, the date of minimum durability may be replaced by the entry ‘these animals must be alive when sold’.
3. The retailer must keep the label attached to the packaging of live bivalve molluscs that are not in individual consumer-size packages for at least 60 days after splitting up the contents.
CHAPTER VIII: OTHER REQUIREMENTS
1. Food business operators storing and transporting live bivalve molluscs must ensure that they are kept at a temperature that does not adversely affect food safety or their viability.
2. Live bivalve molluscs must not be re-immersed in, or sprayed with, water after they have been packaged for retail sale and left the dispatch centre.
CHAPTER IX: SPECIFIC REQUIREMENTS FOR PECTINIDAE AND MARINE GASTROPODS WHICH ARE NOT FILTER FEEDERS HARVESTED OUTSIDE CLASSIFIED PRODUCTION AREAS
Food business operators harvesting pectinidae and marine gastropods, which are not filter feeders, outside classified production areas or handling such pectinidae and/or such marine gastropods must comply with the following requirements:
1. Pectinidae and marine gastropods, which are not filter feeders, may not be placed on the market unless they are harvested and handled in accordance with Chapter II, Part B, and meet the standards laid down in Chapter V, as proved by a system of own-checks.
2. In addition, where data from official monitoring programmes enable the competent authority to classify fishing grounds — where appropriate, in cooperation with food business operators — the provisions of Chapter II, Part A, apply by analogy to pectinidae.
3. Pectinidae and marine gastropods, which are not filter feeders, may not be placed on the market for human consumption otherwise than via a fish auction, a dispatch centre or a processing establishment. When they handle pectinidae and/or such marine gastropods, food business operators operating such establishments must inform the competent authority and, as regards dispatch centres, comply with the relevant requirements of Chapters III and IV.
4. Food business operators handling pectinidae and live marine gastropods, which are not filter feeders, must comply:
(a) with the documentary requirements of Chapter I, points 3 to 7, where applicable. In this case, the registration document must clearly indicate the location of the area where the pectinidae and/or live marine gastropods were harvested; or
(b) with the requirements of Chapter VI, point 2 concerning the closing of all packages of live pectinidae and live marine gastropods dispatched for retail sale and Chapter VII concerning identification marking and labelling. SECTION VIII: FISHERY PRODUCTS
1. This Section does not apply to bivalve molluscs, echinoderms, tunicates and marine gastropods if they are still alive when placed on the market. With the exception of Chapters I and II, it applies to such animals when not placed on the market live, in which case they must have been obtained in accordance with Section VII.
It applies to thawed unprocessed fishery products and fresh fishery products to which food additives have been added in accordance with the appropriate Union legislation.
2. Chapter III, Parts A, C and D, Chapter IV, Part A and Chapter V apply to retail.
3. The requirements of this Section supplement those laid down in Regulation (EC) No 852/2004:
(a) In the case of establishments, including vessels, engaged in primary production and associated operations they supplement the requirements of Annex I to that Regulation.
(b) In the case of other establishments, including vessels, they supplement the requirements of Annex II to that Regulation.
(c) In the case of water supply, they supplement the requirements of Annex II, Chapter VII to that Regulation; clean seawater may be used for the handling and washing of fishery products, the production of ice used to chill fishery products and the rapid cooling of crustaceans and molluscs after their cooking.
By way of derogation from point (a), point 7 of Part A of Annex I to Regulation (EC) No 852/2004 may not apply to operators engaged in small-scale coastal fishing within the meaning of Article 26(1) of Council Regulation (EC) No 1198/2006 (1), and carrying out their activities only for short periods of less than 24 hours.
4. In relation to fishery products:
(a) primary production covers the farming, fishing and collection of live fishery products with a view to their being placed on the market;
and
(b) associated operations cover any of the following operations, if carried out on board fishing vessels: slaughter, bleeding, heading, gutting, removing fins, refrigeration and wrapping; they also include:
1. the transport and storage of fishery products the nature of which has not been substantially altered, including live fishery products, within fish farms on land;
and
2. the transport of fishery products the nature of which has not been substantially altered, including live fishery products, from the place of production to the first establishment of destination.
(1) OJ L 223, 15.8.2006, p. 1. CHAPTER I: REQUIREMENTS FOR VESSELS
Food business operators must ensure that:
1. vessels used to harvest fishery products from their natural environment, or to handle or process them after harvesting, comply with the structural and equipment requirements laid down in Part I;
and
2. operations carried out on board vessels take place in accordance with the rules laid down in Part II.
I. STRUCTURAL AND EQUIPMENT REQUIREMENTS
A. Requirements for all vessels
1. Vessels must be designed and constructed so as not to cause contamination of the products with bilge-water, sewage, smoke, fuel, oil, grease or other objectionable substances.
2. Surfaces with which fishery products come into contact must be of suitable corrosion-resistant material that is smooth and easy to clean. Surface coatings must be durable and non-toxic.
3. Equipment and material used for working on fishery products must be made of corrosion-resistant material that is easy to clean and disinfect.
4. When vessels have a water intake for water used with fishery products, it must be situated in a position that avoids contamination of the water supply.
B. Requirements for vessels designed and equipped to preserve fresh fishery products for more than 24 hours
1. Vessels designed and equipped to preserve fishery products for more than 24 hours must be equipped with holds, tanks or containers for the storage of fishery products at the temperatures laid down in Chapter VII.
2. Holds must be separated from the engine compartments and from the crew quarters by partitions which are sufficient to prevent any contamination of the stored fishery products. Holds and containers used for the storage of fishery products must ensure their preservation under satisfactory conditions of hygiene and, where necessary, ensure that melt water does not remain in contact with the products.
3. In vessels equipped for chilling fishery products in cooled clean seawater, tanks must incorporate devices for achieving a uniform temperature throughout the tanks. Such devices must achieve a chilling rate that ensures that the mix of fish and clean seawater reaches not more than 3 °C six hours after loading and not more than 0 °C after 16 hours and allow the monitoring and, where necessary, recording of temperatures.
C. Requirements for freezer vessels
Freezer vessels must:
1. have freezing equipment with sufficient capacity to lower the temperature rapidly so as to achieve a core temperature of not more than -18 °C;
2. have refrigeration equipment with sufficient capacity to maintain fishery products in the storage holds at not more than -18 °C. Storage holds must be equipped with a temperature-recording device in a place where it can be easily read. The temperature sensor of the reader must be situated in the area where the temperature in the hold is the highest;
and
3. meet the requirements for vessels designed and equipped to preserve fishery products for more than 24 hours laid down in Part B, point 2.
D. Requirements for factory vessels
1. Factory vessels must have at least:
(a) a receiving area reserved for taking fishery products on board, designed to allow each successive catch to be separated. This area must be easy to clean and designed so as to protect the products from the sun or the elements and from any source of contamination;
(b) a hygienic system for conveying fishery products from the receiving area to the work area;
(c) work areas that are large enough for the hygienic preparation and processing of fishery products, easy to clean and disinfect and designed and arranged in such a way as to prevent any contamination of the products;
(d) storage areas for the finished products that are large enough and designed so that they are easy to clean. If a waste-processing unit operates on board, a separate hold must be designated for the storage of such waste;
(e) a place for storing packaging materials that is separate from the product preparation and processing areas;
(f) special equipment for disposing waste or fishery products that are unfit for human consumption directly into the sea or, where circumstances so require, into a watertight tank reserved for that purpose. If waste is stored and processed on board with a view to its sanitation, separate areas must be allocated for that purpose;
(g) a water intake situated in a position that avoids contamination of the water supply;
and
(h) hand-washing equipment for use by the staff engaged in handling exposed fishery products with taps designed to prevent the spread of contamination.
2. However, factory vessels on board which crustaceans and molluscs are cooked, chilled and wrapped, need not meet the requirements of point 1 if no other form of handling or processing takes place on board such vessels.
3. Factory vessels that freeze fishery products must have equipment meeting the requirements for freezer vessels laid down in Part C, points 1 and 2.
II. HYGIENE REQUIREMENTS
1. When in use, the parts of vessels or containers set aside for the storage of fishery products must be kept clean and maintained in good repair and condition. In particular, they must not be contaminated by fuel or bilge water.
2. As soon as possible after they are taken on board, fishery products must be protected from contamination and from the effects of the sun or any other source of heat.
3. Fishery products must be handled and stored so as to prevent bruising. Handlers may use spiked instruments to move large fish or fish which might injure them, provided that the flesh of the products suffers no damage.
4. Fishery products other than those kept alive must undergo chilling as soon as possible after loading. However, when chilling is not possible, fishery products must be landed as soon as possible.
5. Where fish are headed and/or gutted on board, such operations must be carried out hygienically as soon as possible after capture, and the products must be washed immediately and thoroughly. In that event, the viscera and parts that may constitute a danger to public health must be removed as soon as possible and kept apart from products intended for human consumption. Livers and roes intended for human consumption must be preserved under ice, at a temperature approaching that of melting ice, or be frozen.
6. Where freezing in brine of whole fish intended for canning is practised, a temperature of not more than –9 °C must be achieved for the product. The brine must not be a source of contamination for the fish.
CHAPTER II: REQUIREMENTS DURING AND AFTER LANDING
1. Food business operators responsible for the unloading and landing of fishery products must:
(a) ensure that unloading and landing equipment that comes into contact with fishery products is constructed of material that is easy to clean and disinfect and maintained in a good state of repair and cleanliness;
and
(b) avoid contamination of fishery products during unloading and landing, in particular by:
(i) carrying out unloading and landing operations rapidly;
(ii) placing fishery products without delay in a protected environment at the temperature specified in Chapter VII;
and
(iii) not using equipment and practices that cause unnecessary damage to the edible parts of the fishery products.
2. Food business operators responsible for auction and wholesale markets or parts thereof where fishery products are displayed for sale must ensure compliance with the following requirements.
(a) (i) There must be lockable facilities for the refrigerated storage of detained fishery products and separate lockable facilities for the storage of fishery products declared unfit for human consumption.
(ii) If the competent authority so requires, there must be an adequately equipped lockable facility or, where needed, room for the exclusive use of the competent authority. (b) At the time of display or storage of fishery products:
(i) the premises must not be used for other purposes;
(ii) vehicles emitting exhaust fumes likely to impair the quality of fishery products must not have access to the premises;
(iii) persons having access to the premises must not introduce other animals;
and
(iv) the premises must be well lit to facilitate official controls.
3. When chilling was not possible on board the vessel, fresh fishery products, other than those kept alive, must undergo chilling as soon as possible after landing and be stored at a temperature approaching that of melting ice.
4. Food business operators must cooperate with relevant competent authorities so as to permit them to carry out official controls in accordance with Regulation (EC) No 854/2004, in particular as regards any notification procedures for the landing of fishery products that the competent authority of the Member State the flag of which the vessel is flying or the competent authority of the Member State where the fishery products are landed might consider necessary.
CHAPTER III: REQUIREMENTS FOR ESTABLISHMENTS, INCLUDING VESSELS, HANDLING FISHERY PRODUCTS
Food business operators must ensure compliance with the following requirements, where relevant, in establishments handling fishery products.
A. REQUIREMENTS FOR FRESH FISHERY PRODUCTS
1. Where chilled, unpackaged products are not distributed, dispatched, prepared or processed immediately after reaching an establishment on land, they must be stored under ice in appropriate facilities. Re-icing must be carried out as often as necessary. Packaged fresh fishery products must be chilled to a temperature approaching that of melting ice.
2. Operations such as heading and gutting must be carried out hygienically. Where gutting is possible from a technical and commercial viewpoint, it must be carried out as quickly as possible after the products have been caught or landed. The products must be washed thoroughly immediately after these operations.
3. Operations such as filleting and cutting must be carried out so as to avoid contamination or spoilage of fillets and slices. Fillets and slices must not remain on the worktables beyond the time necessary for their preparation. Fillets and slices must be wrapped and, where necessary, packaged and must be chilled as quickly as possible after their preparation.
4. Containers used for the dispatch or storage of unpackaged prepared fresh fishery products stored under ice must ensure that melt water does not remain in contact with the products.
5. Whole and gutted fresh fishery products may be transported and stored in cooled water on board vessels. They may also continue to be transported in cooled water after landing, and be transported from aquaculture establishments, until they arrive at the first establishment on land carrying out any activity other than transport or sorting. B. REQUIREMENTS FOR FROZEN PRODUCTS
Establishments on land that freeze fishery products must have equipment that satisfies the requirements laid down for freezer vessels in Section VIII, Chapter I, part I. C, points 1 and 2.
C. REQUIREMENTS FOR MECHANICALLY SEPARATED FISHERY PRODUCTS
Food business operators manufacturing mechanically separated fishery products must ensure compliance with the following requirements.
1. The raw materials used must satisfy the following requirements. (a) Only whole fish and bones after filleting may be used to produce mechanically separated fishery products; (b) All raw materials must be free from guts.
2. The manufacturing process must satisfy the following requirements: (a) Mechanical separation must take place without undue delay after filleting. (b) If whole fish are used, they must be gutted and washed beforehand. (c) After production, mechanically separated fishery products must be frozen as quickly as possible or incorporated in a product intended for freezing or a stabilising treatment.
D. REQUIREMENTS CONCERNING PARASITES
1. Food business operators placing on the market the following fishery products derived from finfish or cephalopod molluscs: (a) fishery products intended to be consumed raw; or (b) marinated, salted and any other treated fishery products, if the treatment is insufficient to kill the viable parasite;
must ensure that the raw material or finished product undergo a freezing treatment in order to kill viable parasites that may be a risk to the health of the consumer.
2. For parasites other than trematodes the freezing treatment must consist of lowering the temperature in all parts of the product to at least: (a) – 20 °C for not less than 24 hours; or (b) – 35 °C for not less than 15 hours.
3. Food business operators need not carry out the freezing treatment set out in point 1 for fishery products: (a) that have undergone, or are intended to undergo before consumption a heat treatment that kills the viable parasite. In the case of parasites other than trematodes the product is heated to a core temperature of 60 °C or more for at least one minute; (b) that have been preserved as frozen fishery products for a sufficiently long period to kill the viable parasites; (c) from wild catches, provided that:
(i) there are epidemiological data available indicating that the fishing grounds of origin do not present a health hazard with regard to the presence of parasites; and
(ii) the competent authority so authorises;
(d) derived from fish farming, cultured from embryos and have been fed exclusively on a diet that cannot contain viable parasites that present a health hazard, and one of the following requirements is complied with:
(i) have been exclusively reared in an environment that is free from viable parasites; or
(ii) the food business operator verifies through procedures, approved by the competent authority, that the fishery products do not represent a health hazard with regard to the presence of viable parasites.
4. (a) When placing on the market, except when supplied to the final consumer, fishery products referred to in point 1 must be accompanied by a document issued by the food business operator performing the freezing treatment, stating the type of freezing treatment that the products have undergone.
(b) Before placing on the market fishery products referred to in points 3(c) and (d) which have not undergone the freezing treatment or which are not intended to undergo before consumption a treatment that kills viable parasites that present a health hazard, a food business operator must ensure that the fishery products originate from a fishing ground or fish farming which complies with the specific conditions referred to in one of those points. This provision may be met by information in the commercial document or by any other information accompanying the fishery products.
CHAPTER IV: REQUIREMENTS FOR CERTAIN PROCESSED FISHERY PRODUCTS
Food business operators must ensure compliance with the following requirements in establishments handling certain processed fishery products.
A. REQUIREMENTS FOR COOKING OF CRUSTACEANS AND MOLLUSCS
1. Rapid cooling must follow cooking. If no other method of preservation is used, cooling must continue until a temperature approaching that of melting ice is reached.
2. Shelling or shucking must be carried out hygienically, avoiding contamination of the product. Where such operations are done by hand, workers must pay particular attention to washing their hands.
3. After shelling or shucking, cooked products must be frozen immediately, or be chilled as soon as possible to the temperature set out in Chapter VII.
B. REQUIREMENTS FOR FISH OIL INTENDED FOR HUMAN CONSUMPTION
1. Raw materials used in the preparation of fish oil for human consumption must:
(a) come from establishments, including vessels, registered or approved pursuant to Regulation (EC) No 852/2004 or in accordance with this Regulation; (b) derive from fishery products which are fit for human consumption and which comply with the provisions set out in this Section;
(c) be transported and stored in hygienic conditions;
(d) be chilled as soon as possible and remain at the temperatures set out in Chapter VII.
By way of derogation from point 1(d), the food business operator may refrain from chilling the fishery products when whole fishery products are used directly in the preparation of fish oil for human consumption, and the raw material is processed within 36 hours after loading, provided that the freshness criteria are met and the total volatile basic nitrogen (TVB-N) value of the unprocessed fishery products do not exceed the limits set out in point 1 of Chapter I of Section II of Annex II to Commission Regulation (EC) No 2074/2005 (1).
2. The production process for fish oil must ensure that all raw material intended for the production of crude fish oil is subject to a treatment including, where relevant, heating, pressing, separation, centrifugation, processing, refining and purification steps before being placed on the market for the final consumer.
3. Provided that the raw materials and the production process comply with the requirements applying to fish oil intended for human consumption a food business operator may produce and store both fish oil for human consumption and fish meal not intended for human consumption in the same establishment.
4. Pending the establishment of specific Community legislation food business operators must ensure compliance with national rules for fish oil being placed on the market for the final consumer.
CHAPTER V: HEALTH STANDARDS FOR FISHERY PRODUCTS
In addition to ensuring compliance with microbiological criteria adopted in accordance with Regulation (EC) No 852/2004, food business operators must ensure, depending on the nature of the product or the species, that fishery products placed on the market for human consumption meet the standards laid down in this Chapter. The requirements of Parts B and D shall not apply to whole fishery products that are used directly for the preparation of fish oil intended for human consumption.
A. ORGANOLEPTIC PROPERTIES OF FISHERY PRODUCTS
Food business operators must carry out an organoleptic examination of fishery products. In particular, this examination must ensure that fishery products comply with any freshness criteria.
B. HISTAMINE
Food business operators must ensure that the limits with regard to histamine are not exceeded.
C. TOTAL VOLATILE NITROGEN
Unprocessed fishery products must not be placed on the market if chemical tests reveal that the limits with regard to TVB-N or TMA-N have been exceeded.
D. PARASITES
Food business operators must ensure that fishery products have been subjected to a visual examination for the purpose of detecting visible parasites before being placed on the market. They must not place fishery products that are obviously contaminated with parasites on the market for human consumption.
(1) OJ L 338, 22.12.2005, p. 27. E. TOXINS HARMFUL TO HUMAN HEALTH
1. Fishery products derived from poisonous fish of the following families must not be placed on the market: Tetraodontidae, Molidae, Diodontidae and Canthigasteridae.
Fresh, prepared, frozen and processed fishery products belonging to the family Gempylidae, in particular Ruvettus pretiosus and Lepidocybium flavobrunneum, may only be placed on the market in wrapped/packaged form and must be appropriately labelled to provide information to the consumer on preparation/cooking methods and on the risk related to the presence of substances with adverse gastrointestinal effects.
The scientific name of the fishery products must accompany the common name on the label.
2. Fishery products containing biotoxins such as ciguatoxin or muscle-paralysing toxins must not be placed on the market. However, fishery products derived from bivalve molluscs, echinoderms, tunicates and marine gastropods may be placed on the market if they have been produced in accordance with Section VII and comply with the standards laid down in Chapter V, point 2, of that section.
CHAPTER VI: WRAPPING AND PACKAGING OF FISHERY PRODUCTS
1. Receptacles in which fresh fishery products are kept under ice must be water-resistant and ensure that melt-water does not remain in contact with the products.
2. Frozen blocks prepared on board vessels must be adequately wrapped before landing.
3. When fishery products are wrapped on board fishing vessels, food business operators must ensure that wrapping material: (a) is not a source of contamination; (b) is stored in such a manner that it is not exposed to a risk of contamination; (c) intended for re-use is easy to clean and, where necessary, to disinfect.
CHAPTER VII: STORAGE OF FISHERY PRODUCTS
Food business operators storing fishery products must ensure compliance with the following requirements.
1. Fresh fishery products, thawed unprocessed fishery products, and cooked and chilled products from crustaceans and molluscs, must be maintained at a temperature approaching that of melting ice.
2. Frozen fishery products must be kept at a temperature of not more than – 18 °C in all parts of the product; however, whole fish initially frozen in brine intended for the manufacture of canned food may be kept at a temperature of not more than – 9 °C.
3. Fishery products kept alive must be kept at a temperature and in a manner that does not adversely affect food safety or their viability.
CHAPTER VIII: TRANSPORT OF FISHERY PRODUCTS
Food business operators transporting fishery products must ensure compliance with the following requirements.
1. During transport, fishery products must be maintained at the required temperature. In particular: (a) fresh fishery products, thawed unprocessed fishery products, and cooked and chilled products from crustaceans and molluscs, must be maintained at a temperature approaching that of melting ice; (b) frozen fishery products, with the exception of whole fish initially frozen in brine intended for the manufacture of canned food, must be maintained during transport at an even temperature of not more than –18 °C in all parts of the product, possibly with short upward fluctuations of not more than 3 °C.
2. Food business operators need not comply with point 1(b) when frozen fishery products are transported from a cold store to an approved establishment to be thawed on arrival for the purposes of preparation and/or processing, if the journey is short and the competent authority so permits.
3. If fishery products are kept under ice, melt water must not remain in contact with the products.
4. Fishery products to be placed on the market live must be transported in such a way as not adversely to affect food safety or their viability.
SECTION IX: RAW MILK, COLOSTRUM, DAIRY PRODUCTS AND COLOSTRUM-BASED PRODUCTS
For the purpose of this Section,
1. ‘Colostrum’ means the fluid secreted by the mammary glands of milk-producing animals up to three to five days post parturition that is rich in antibodies and minerals, and precedes the production of raw milk.
2. ‘Colostrum-based products’ means processed products resulting from the processing of colostrum or from the further processing of such processed products.
CHAPTER I: RAW MILK AND COLOSTRUM — PRIMARY PRODUCTION
Food business operators producing or, as appropriate, collecting raw milk and colostrum must ensure compliance with the requirements laid down in this Chapter.
1. HEALTH REQUIREMENTS FOR RAW MILK AND COLOSTRUM PRODUCTION
1. Raw milk and colostrum must come from animals:
(a) that do not show any symptoms of infectious diseases communicable to humans through milk and colostrum;
(b) that are in a good general state of health, present no sign of disease that might result in the contamination of milk and colostrum and, in particular, are not suffering from any infection of the genital tract with discharge, enteritis with diarrhoea and fever, or a recognisable inflammation of the udder;
(c) that do not have any udder wound likely to affect the milk and colostrum;
(d) to which no unauthorised substances or products have been administered and that have not undergone illegal treatment within the meaning of Directive 96/23/EC; (e) in respect of which, where authorised products or substances have been administered, the withdrawal periods prescribed for these products or substances have been observed.
2. (a) In particular, as regards brucellosis, raw milk and colostrum must come from:
(i) cows or buffaloes belonging to a herd which, within the meaning of Directive 64/432/EEC (1), is free or officially free of brucellosis;
(ii) sheep or goats belonging to a holding officially free or free of brucellosis within the meaning of Directive 91/68/EEC (2); or
(iii) females of other species belonging, for species susceptible to brucellosis, to herds regularly checked for that disease under a control plan that the competent authority has approved.
(b) As regards tuberculosis, raw milk and colostrum must come from:
(i) cows or buffaloes belonging to a herd which, within the meaning of Directive 64/432/EEC, is officially free of tuberculosis; or
(ii) females of other species belonging, for species susceptible to tuberculosis, to herds regularly checked for this disease under a control plan that the competent authority has approved.
(c) If goats are kept together with cows, such goats must be inspected and tested for tuberculosis.
3. However, raw milk from animals that does not meet the requirements of point 2 may be used with the authorisation of the competent authority:
(a) in the case of cows or buffaloes that do not show a positive reaction to tests for tuberculosis or brucellosis, nor any symptoms of these diseases, after having undergone a heat treatment such as to show a negative reaction to the alkaline phosphatase test;
(b) in the case of sheep or goats that do not show a positive reaction to tests for brucellosis, or which have been vaccinated against brucellosis as part of an approved eradication programme, and which do not show any symptom of that disease, either:
(i) for the manufacture of cheese with a maturation period of at least two months; or
(ii) after having undergone heat treatment such as to show a negative reaction to the alkaline phosphatase test; and
(c) in the case of females of other species that do not show a positive reaction to tests for tuberculosis or brucellosis, nor any symptoms of these diseases, but belong to a herd where brucellosis or tuberculosis has been detected after the checks referred to in point 2(a)(iii) or 2(b)(ii), if treated to ensure its safety.
(1) Council Directive 64/432/EEC of 26 June 1964 on animal health problems affecting intra-Community trade in bovine animals and swine (OJ L 121, 29.7.1964, p. 1977/64). Directive as last amended by Regulation (EC) No 21/2004 (OJ L 5, 9.1.2004, p. 8).
(2) Council Directive 91/68/EEC of 28 January 1991 on animal health conditions governing intra-Community trade in ovine and caprine animals (OJ L 46, 19.2.1991, p. 19). Directive as last amended by Commission Decision 2005/932/EC. 4. Raw milk and colostrum from any animal not complying with the appropriate requirements of points 1 to 3, and in particular, any animal showing individually a positive reaction to the prophylactic tests vis-à-vis tuberculosis or brucellosis as laid down in Directive 64/432/EEC and Directive 91/68/EEC, must not be used for human consumption.
5. The isolation of animals that are infected, or suspected of being infected, with any of the diseases referred to in point 1 or 2 must be effective to avoid any adverse effect on other animals’ milk and colostrum.
II. HYGIENE ON MILK AND COLOSTRUM PRODUCTION HOLDINGS
A. Requirements for premises and equipment
1. Milking equipment and premises where milk and colostrum are stored, handled or cooled must be located and constructed so as to limit the risk of contamination of milk and colostrum.
2. Premises for the storage of milk and colostrum must be protected against vermin, have adequate separation from premises where animals are housed and, where necessary to meet the requirements laid down in Part B, have suitable refrigeration equipment.
3. Surfaces of equipment that are intended to come into contact with milk and colostrum (utensils, containers, tanks, etc. intended for milking, collection or transport) must be easy to clean and, where necessary, disinfect and must be maintained in a sound condition. This requires the use of smooth, washable and non-toxic materials.
4. After use, such surfaces must be cleaned and, where necessary, disinfected. After each journey, or after each series of journeys when the period of time between unloading and the following loading is very short, but in all cases at least once a day, containers and tanks used for the transport of milk and colostrum must be cleaned and disinfected in an appropriate manner before re-use.
B. Hygiene during milking, collection and transport
1. Milking must be carried out hygienically, ensuring in particular:
(a) that, before milking starts, the teats, udder and adjacent parts are clean;
(b) that milk and colostrum from each animal is checked for organoleptic or physico-chemical abnormalities by the milker or a method achieving similar results and that milk and colostrum presenting such abnormalities is not used for human consumption;
(c) that milk and colostrum from animals showing clinical signs of udder disease are not used for human consumption otherwise than in accordance with the instructions of a veterinarian;
(d) the identification of animals undergoing medical treatment likely to transfer residues to the milk and colostrum, and that milk and colostrum obtained from such animals before the end of the prescribed withdrawal period are not used for human consumption; and (e) that teat dips or sprays are used only after authorisation or registration in accordance with the procedures laid down in Directive 98/8/EC of the European Parliament and of the Council of 16 February 1998 concerning the placing of biocidal products on the market (1):
(f) that colostrum is milked separately and not mixed together with raw milk.
2. Immediately after milking, milk and colostrum must be held in a clean place designed and equipped to avoid contamination.
(a) Milk must be cooled immediately to not more than 8 °C in the case of daily collection, or not more than 6 °C if collection is not daily;
(b) Colostrum must be stored separately and immediately cooled to not more than 8 °C in the case of daily collection, or not more than 6 °C if collection is not daily, or frozen.
3. During transport the cold chain must be maintained and, on arrival at the establishment of destination, the temperature of the milk and the colostrum must not be more than 10 °C.
4. Food business operators need not comply with the temperature requirements laid down in points 2 and 3 if the milk meets the criteria provided for in Part III and either:
(a) the milk is processed within two hours of milking; or
(b) a higher temperature is necessary for technological reasons related to the manufacture of certain dairy products and the competent authority so authorises.
C. Staff hygiene
1. Persons performing milking and/or handling raw milk and colostrum must wear suitable clean clothes.
2. Persons performing milking must maintain a high degree of personal cleanliness. Suitable facilities must be available near the place of milking to enable persons performing milking and handling raw milk and colostrum to wash their hands and arms.
III. CRITERIA FOR RAW MILK AND COLOSTRUM
1. (a) The following criteria for raw milk apply pending the establishment of standards in the context of more specific legislation on the quality of milk and dairy products.
(b) National criteria for colostrum, as regards plate count, somatic cell count or antibiotic residues, apply pending the establishment of specific Community legislation.
2. A representative number of samples of raw milk and colostrum collected from milk production holdings taken by random sampling must be checked for compliance with points 3 and 4 in case of raw milk and with the existing national criteria referred to in point 1(b) in case of colostrum. The checks may be carried out by, or on behalf of:
(a) the food business operator producing the milk;
(1) OJ L 123, 24.4.1998, p. 1. Directive as last amended by Commission Directive 2006/50/EC (OJ L 142, 30.5.2006, p. 6). (b) the food business operator collecting or processing the milk;
(c) a group of food business operators; or
(d) in the context of a national or regional control scheme.
3. (a) Food business operators must initiate procedures to ensure that raw milk meets the following criteria:
(i) for raw cows' milk:
| Parameter | Criteria | |-----------------------------------------------|-------------------| | Plate count at 30 °C (per ml) | ≤ 100 000 (\*) | | Somatic cell count (per ml) | ≤ 400 000 (\*\*) |
(\*) Rolling geometric average over a two-month period, with at least two samples per month.
(\*\*) Rolling geometric average over a three-month period, with at least one sample per month, unless the competent authority specifies another methodology to take account of seasonal variations in production levels.
(ii) for raw milk from other species:
| Parameter | Criteria | |-----------------------------------------------|-------------------| | Plate count at 30 °C (per ml) | ≤ 1 500 000 (\*) |
(\*) Rolling geometric average over a two-month period, with at least two samples per month.
(b) However, if raw milk from species other than cows is intended for the manufacture of products made with raw milk by a process that does not involve any heat treatment, food business operators must take steps to ensure that the raw milk used meets the following criterion:
| Parameter | Criteria | |-----------------------------------------------|-------------------| | Plate count at 30 °C (per ml) | ≤ 500 000 (\*) |
(\*) Rolling geometric average over a two-month period, with at least two samples per month.
4. Without prejudice to Directive 96/23/EC, food business operators must initiate procedures to ensure that raw milk is not placed on the market if either:
(a) it contains antibiotic residues in a quantity that, in respect of any one of the substances referred to in Annexes I and III to Regulation (EEC) No 2377/90 (1), exceeds the levels authorised under that Regulation; or
(b) the combined total of residues of antibiotic substances exceeds any maximum permitted value.
5. When raw milk fails to comply with point 3 or 4, the food business operator must inform the competent authority and take measures to correct the situation.
(1) Council Regulation (EEC) No 2377/90 of 26 June 1990 laying down a Community procedure for the establishment of maximum residue limits of veterinary medicinal products in foodstuffs of animal origin (OJ L 224, 18.8.1990, p. 1). Regulation as last amended by Commission Regulation (EC) No 1231/2006 (OJ L 225, 17.8.2006, p. 3). CHAPTER II: REQUIREMENTS CONCERNING DAIRY AND COLOSTRUM-BASED PRODUCTS
I. TEMPERATURE REQUIREMENTS
1. Food business operators must ensure that, upon acceptance at a processing establishment,
(a) milk is quickly cooled to not more than 6 °C;
(b) colostrum is quickly cooled to not more than 6 °C or maintained frozen,
and kept at that temperature until processed.
2. However, food business operators may keep milk and colostrum at a higher temperature if:
(a) processing begins immediately after milking, or within four hours of acceptance at the processing establishment; or
(b) the competent authority authorises a higher temperature for technological reasons concerning the manufacture of certain dairy or colostrum-based products.
II. REQUIREMENTS FOR HEAT TREATMENT
1. When raw milk, colostrum, dairy or colostrum-based products undergo heat treatment, food business operators must ensure that this satisfies the requirements laid down in Chapter XI of Annex II to Regulation (EC) No 852/2004. In particular, they shall ensure, when using the following processes, that they comply with the specifications mentioned:
(a) Pasteurisation is achieved by a treatment involving:
(i) a high temperature for a short time (at least 72 °C for 15 seconds);
(ii) a low temperature for a long time (at least 63 °C for 30 minutes); or
(iii) any other combination of time-temperature conditions to obtain an equivalent effect,
such that the products show, where applicable, a negative reaction to an alkaline phosphatase test immediately after such treatment.
(b) Ultra high temperature (UHT) treatment is achieved by a treatment:
(i) involving a continuous flow of heat at a high temperature for a short time (not less than 135 °C in combination with a suitable holding time) such that there are no viable microorganisms or spores capable of growing in the treated product when kept in an aseptic closed container at ambient temperature, and
(ii) sufficient to ensure that the products remain microbiologically stable after incubating for 15 days at 30 °C in closed containers or for seven days at 55 °C in closed containers or after any other method demonstrating that the appropriate heat treatment has been applied.
2. When considering whether to subject raw milk and colostrum to heat treatment, food business operators must:
(a) have regard to the procedures developed in accordance with the HACCP principles pursuant to Regulation (EC) No 852/2004; and
(b) comply with any requirements that the competent authority may impose in this regard when approving establishments or carrying out checks in accordance with Regulation (EC) No 854/2004.
III. CRITERIA FOR RAW COWS’ MILK
1. Food business operators manufacturing dairy products must initiate procedures to ensure that, immediately before being heat treated and if its period of acceptance specified in the HACCP-based procedures is exceeded:
(a) raw cows’ milk used to prepare dairy products has a plate count at 30 °C of less than 300 000 per ml; and
(b) heat treated cows’ milk used to prepare dairy products has a plate count at 30 °C of less than 100 000 per ml.
2. When milk fails to meet the criteria laid down in paragraph 1, the food business operator must inform the competent authority and take measures to correct the situation.
CHAPTER III: WRAPPING AND PACKAGING
Sealing of consumer packages must be carried out immediately after filling in the establishment where the last heat treatment of liquid dairy products and colostrum-based products, takes place by means of sealing devices that prevent contamination. The sealing system must be designed in such a way that, after opening, the evidence of its opening remains clear and easy to check.
CHAPTER IV: LABELLING
1. In addition to the requirements of Directive 2000/13/EC, except in the cases envisaged in Article 13(4) and (5) of that Directive, labelling must clearly show:
(a) in the case of raw milk intended for direct human consumption, the words ‘raw milk’;
(b) in the case of products made with raw milk, the manufacturing process for which does not include any heat treatment or any physical or chemical treatment, the words ‘made with raw milk’;
(c) in case of colostrum, the word ‘colostrum’;
(d) in case of products made with colostrum, the words ‘made with colostrum’.
2. The requirements of paragraph 1 apply to products destined for retail trade. The term ‘labelling’ includes any packaging, document, notice, label, ring or collar accompanying or referring to such products. CHAPTER V: IDENTIFICATION MARKING
By way of derogation from the requirements of Annex II, Section I:
1. rather than indicating the approval number of the establishment, the identification mark may include a reference to where on the wrapping or packaging the approval number of the establishment is indicated;
2. in the case of the reusable bottles, the identification mark may indicate only the initials of the consigning country and the approval number of the establishment.
SECTION X: EGGS AND EGG PRODUCTS
CHAPTER I: EGGS
1. At the producer's premises, and until sale to the consumer, eggs must be kept clean, dry, free of extraneous odour, effectively protected from shocks and out of direct sunshine.
2. Eggs must be stored and transported until sale to the final consumer at a temperature, preferably constant, that is best suited to assure optimal conservation of their hygiene properties, unless the competent authority imposes national temperature requirements for egg storage facilities and for vehicles transporting eggs between such storage facilities.
3. Eggs must be delivered to the consumer within a maximum time limit of 21 days of laying.
CHAPTER II: EGG PRODUCTS
I. REQUIREMENTS FOR ESTABLISHMENTS
Food business operators must ensure that establishments for the manufacture of egg products are constructed, laid out and equipped so as to ensure separation of the following operations:
1. washing, drying and disinfecting dirty eggs, where carried out;
2. breaking eggs, collecting their contents and removing parts of shells and membranes;
and
3. operations other than those referred to in points 1 and 2.
II. RAW MATERIALS FOR THE MANUFACTURE OF EGG PRODUCTS
Food business operators must ensure that raw materials used to manufacture egg products comply with the following requirements.
1. The shells of eggs used in the manufacture of egg products must be fully developed and contain no breaks. However, cracked eggs may be used for the manufacture of liquid egg or egg products if the establishment of production or a packing centre delivers them directly to an establishment approved for the manufacture of liquid egg or a processing establishment, where they must be broken as soon as possible.
2. Liquid egg obtained in an establishment approved for that purpose may be used as raw material. Liquid egg must be obtained in accordance with the requirements of points 1, 2, 3, 4 and 7 of Part III. III. SPECIAL HYGIENE REQUIREMENTS FOR THE MANUFACTURE OF EGG PRODUCTS
Food business operators must ensure that all operations are carried out in such a way as to avoid any contamination during production, handling and storage of egg products, in particular by ensuring compliance with the following requirements.
1. Eggs must not be broken unless they are clean and dry.
2. Eggs must be broken in a manner that minimises contamination, in particular by ensuring adequate separation from other operations. Cracked eggs must be processed as soon as possible.
3. Eggs other than those of hens, turkeys or guinea fowl must be handled and processed separately. All equipment must be cleaned and disinfected before processing of hens', turkeys' and guinea fowls' eggs is resumed.
4. Egg contents may not be obtained by the centrifuging or crushing of eggs, nor may centrifuging be used to obtain the remains of egg whites from empty shells for human consumption.
5. After breaking, each particle of the liquid egg must undergo processing as quickly as possible to eliminate microbiological hazards or to reduce them to an acceptable level. A batch that has been insufficiently processed may immediately undergo processing again in the same establishment if this processing renders it fit for human consumption. Where a batch is found to be unfit for human consumption, it must be denatured to ensure that it is not used for human consumption.
6. Processing is not required for egg white intended for the manufacture of dried or crystallised albumin destined subsequently to undergo heat treatment.
7. If processing is not carried out immediately after breaking, liquid egg must be stored either frozen or at a temperature of not more than 4 °C. The storage period before processing at 4 °C must not exceed 48 hours. However, these requirements do not apply to products to be de-sugared, if de-sugaring process is performed as soon as possible.
8. Products that have not been stabilised so as to be kept at room temperature must be cooled to not more than 4 °C. Products for freezing must be frozen immediately after processing.
IV. ANALYTICAL SPECIFICATIONS
1. The concentration of 3-OH-butyric acid must not exceed 10 mg/kg in the dry matter of the unmodified egg product.
2. The lactic acid content of raw material used to manufacture egg products must not exceed 1 g/kg of dry matter. However, for fermented products, this value must be the one recorded before the fermentation process.
3. The quantity of eggshell remains, egg membranes and any other particles in the processed egg product must not exceed 100 mg/kg of egg product. V. LABELLING AND IDENTIFICATION MARKING
4. In addition to the general requirements for identification marking laid down in Annex II, Section I, consignments of egg products, destined not for retail but for use as an ingredient in the manufacture of another product, must have a label giving the temperature at which the egg products must be maintained and the period during which conservation may thus be assured.
5. In the case of liquid egg, the label referred to in point 1 must also bear the words: ‘non-pasteurised liquid egg — to be treated at place of destination’ and indicate the date and hour of breaking.
SECTION XI: FROGS’ LEGS AND SNAILS
Food business operators preparing frogs’ legs or snails for human consumption must ensure compliance with the following requirements.
1. Frogs and snails must be killed in an establishment constructed, laid out and equipped for that purpose.
2. Establishment in which frogs’ legs are prepared must have a room reserved for the storage and washing of live frogs, and for their slaughter and bleeding. This room must be physically separate from the preparation room.
3. Frogs and snails that die otherwise than by being killed in the establishment must not be prepared for human consumption.
4. Frogs and snails must be subjected to an organoleptic examination carried out by sampling. If that examination indicates that they might present a hazard, they must not be used for human consumption.
5. Immediately following preparation, frogs’ legs must be washed fully with running potable water and immediately chilled to a temperature approaching that of melting ice, frozen or processed.
6. After killing, snails’ hepato-pancreas must, if it might present a hazard, be removed and not be used for human consumption.
SECTION XII: RENDERED ANIMAL FATS AND GREAVES
CHAPTER I: REQUIREMENTS APPLICABLE TO ESTABLISHMENTS COLLECTING OR PROCESSING RAW MATERIALS
Food business operators must ensure that establishments collecting or processing raw materials for the production of rendered animal fats and greaves comply with the following requirements.
1. Centres for the collection of raw materials and further transport to processing establishments must be equipped with facilities for the storage of raw materials at a temperature of not more than 7 °C.
2. Each processing establishment must have:
(a) refrigeration facilities;
(b) a dispatch room, unless the establishment dispatches rendered animal fat only in tankers;
and
(c) if appropriate, suitable equipment for the preparation of products consisting of rendered animal fats mixed with other foodstuffs and/or seasonings.
3. However, the refrigeration facilities required under points 1 and 2(a) are not necessary if the arrangements for the supply of raw materials ensure that they are never stored or transported without active refrigeration otherwise than as provided for in Chapter II, point 1(d). CHAPTER II: HYGIENE REQUIREMENTS FOR THE PREPARATION OF RENDERED ANIMAL FAT AND GREAVES
Food business operators preparing rendered animal fats and greaves must ensure compliance with the following requirements.
1. Raw materials must:
(a) derive from animals which have been slaughtered in a slaughterhouse, and which have been found fit for human consumption following ante-mortem and post-mortem inspection;
(b) consist of adipose tissues or bones, which are reasonably free from blood and impurities;
(c) come from establishments registered or approved pursuant to Regulation (EC) No 852/2003 or in accordance with this Regulation;
and
(d) be transported, and stored until rendering, in hygienic conditions and at an internal temperature of not more than 7 °C. However, raw materials may be stored and transported without active refrigeration if rendered within 12 hours after the day on which they were obtained.
2. During rendering the use of solvents is prohibited.
3. When the fat for refining meets the standards laid down in point 4, rendered animal fat prepared in accordance with points 1 and 2 may be refined in the same establishment or in another establishment with a view to improving its physico-chemical quality.
4. Rendered animal fat, depending on type, must meet the following standards:
| | Ruminants | Porcine animals | Other animal fat | |----------------|-----------|-----------------|-----------------| | | Edible tallow | Tallow for refining | Edible fat | Lard and other fat for refining | Edible | For refining | | Premier jus (1) | 0,75 | 1,25 | 3,0 | 0,75 | 1,25 | 2,0 | 1,25 | 3,0 | | FFA (m/m % oleic acid) maximum | 4 meq/kg | 4 meq/kg | 6 meq/kg | 4 meq/kg | 4 meq/kg | 6 meq/kg | 4 meq/kg | 10 meq/kg | | Peroxide maximum | 4 meq/kg | 4 meq/kg | 6 meq/kg | 4 meq/kg | 4 meq/kg | 6 meq/kg | 4 meq/kg | 10 meq/kg | | Total insoluble impurities | Maximum 0,15 % | Maximum 0,5 % | | Odour, taste, colour | Normal |
(1) Rendered animal fat obtained by low-temperature rendering of fresh fat from the heart, caul, kidneys and mesentery of bovine animals, and fat from cutting rooms.
(2) Rendered animal fat obtained from the adipose tissues of porcine animals.
5. Greaves intended for human consumption must be stored in accordance with the following temperature requirements.
(a) When greaves are rendered at a temperature of not more than 70 °C, they must be stored:
(i) at a temperature of not more than 7 °C for a period not exceeding 24 hours;
or
(ii) at a temperature of not more than –18 °C. (b) When greaves are rendered at a temperature of more than 70 °C and have a moisture content of 10 % (m/m) or more, they must be stored:
(i) at a temperature of not more than 7 °C for a period not exceeding 48 hours or a time/temperature ratio giving an equivalent guarantee;
or
(ii) at a temperature of not more than –18 °C.
(c) When greaves are rendered at a temperature of more than 70 °C and have a moisture content of less than 10 % (m/m), there are no specific requirements.
SECTION XIII: TREATED STOMACHS, BLADDERS AND INTESTINES
Food business operators treating stomachs, bladders and intestines must ensure compliance with the following requirements.
1. Animal intestines, bladders and stomachs may be placed on the market only if:
(a) they derive from animals which have been slaughtered in a slaughterhouse, and which have been found fit for human consumption following ante-mortem and post-mortem inspection;
(b) they are salted, heated or dried;
and
(c) after the treatment referred to in (b), effective measures are taken to prevent re-contamination.
2. Treated stomachs, bladders and intestines that cannot be kept at ambient temperature must be stored chilled using facilities intended for that purpose until their dispatch. In particular, products that are not salted or dried must be kept at a temperature of not more than 3 °C.
SECTION XIV: GELATINE
1. Food business operators manufacturing gelatine must ensure compliance with the requirements of this section.
2. For the purpose of this section, ‘tanning’ means the hardening of hides, using vegetable tanning agents, chromium salts or other substances such as aluminium salts, ferric salts, silicic salts, aldehydes and quinones, or other synthetic hardening agents.
CHAPTER I: REQUIREMENTS FOR RAW MATERIALS
1. For the production of gelatine intended for use in food, the following raw materials may be used:
(a) bones, other than specified risk materials as defined in Article 3(1)(g) of Regulation (EC) No 999/2001 of the European Parliament and of the Council (1);
(b) hides and skins of farmed ruminant animals;
(c) pig skins;
(d) poultry skin;
(e) tendons and sinews;
(f) wild game hides and skins;
and
(g) fish skin and bones.
(1) OJ L 147, 31.5.2001, p 1. 2. The use of hides and skins is prohibited if they have undergone any tanning process, regardless of whether this process was completed.
3. Raw materials listed in point 1(a) to (e) must derive from animals which have been slaughtered in a slaughterhouse and whose carcases have been found fit for human consumption following ante-mortem and post-mortem inspection or, in the case of hides and skins from wild game, found fit for human consumption.
4. (a) Raw materials that have not undergone any preserving treatment other than chilling, freezing or quick-freezing must come from establishments registered or approved pursuant to Regulation (EC) No 852/2004 or in accordance with this Regulation,
(b) The following treated raw materials may be used:
(i) bones other than specified risk material as defined in Article 3(1)(g) of Regulation (EC) No 999/2001 coming from establishments under the control of and listed by the competent authority, and that have been subjected to one of the following treatments:
— crushed to pieces of approximately 15 mm and degreased with hot water at a temperature of minimum 70 °C for at least 30 minutes, minimum 80 °C for at least 15 minutes, or minimum 90 °C for at least 10 minutes, and then separated and subsequently washed and dried for at least 20 minutes in a stream of hot air with an initial temperature of minimum 350 °C, or for 15 minutes in a stream of hot air with an initial temperature of more than 700 °C,
— sun-dried for a minimum of 42 days at an average temperature of at least 20 °C,
— acid treatment such that the pH is maintained at less than 6 to the core for at least 1 hour before drying;
(ii) hides and skins of farmed ruminant animals, pig skins, poultry skins and wild game hides and skins coming from establishments under the control of and listed by the competent authority, and that have been subjected to one of the following treatments:
— treatment with alkali to establish a pH > 12 to the core followed by salting for at least 7 days,
— drying for at least 42 days at a temperature of at least 20 °C,
— acid treatment such that the pH is maintained at less than 5 to the core for a minimum of 1 hour,
— alkali treatment throughout at a pH > 12 for at least 8 hours;
(iii) bones other than specified risk material defined in Article 3(1)(g) of Regulation (EC) No 999/2001, hides and skins of farmed ruminant animals, pig skins, poultry skins, fish hides and wild game hides and skins that have undergone any other treatment than those specified in point (i) or (ii) and that come from establishments registered or approved pursuant to Regulation (EC) No 852/2004 or in accordance with this Regulation.
For the purposes of the first 2 indents of point (b)(ii), the duration of the treatments may include the time of transportation.
The treated raw materials referred to in points (b)(i) and (b)(ii) must be derived from: — domestic and farmed ruminant animals, pigs and poultry which have been slaughtered in a slaughterhouse and the carcasses of which have been found fit for human consumption following ante- and post-mortem inspection, or
— from killed wild game whose carcasses have been found fit for human consumption following post-mortem inspection.
5. Collection centres and tanneries may also supply raw material for the production of gelatine intended for human consumption if the competent authority specifically authorises them for this purpose and they fulfil the following requirements.
(a) They must have storage rooms with hard floors and smooth walls that are easy to clean and disinfect and, where appropriate, provided with refrigeration facilities.
(b) The storage rooms must be kept in a satisfactory state of cleanliness and repair, so that they do not constitute a source of contamination for the raw materials.
(c) If raw material not in conformity with this chapter is stored and/or processed in these premises, it must be segregated from raw material in conformity with this chapter throughout the period of receipt, storage, processing and dispatch.
CHAPTER II: TRANSPORT AND STORAGE OF RAW MATERIALS
1. In place of the identification mark provided for in Annex II, Section I, a document indicating the establishment of origin and containing the information set out in the Appendix to this Annex must accompany raw materials during transport, when delivered to a collection centre or tannery and when delivered to the gelatine-processing establishment.
2. Raw materials must be transported and stored chilled or frozen unless they are processed within 24 hours after their departure. However, degreased and dried bones or ossein, salted, dried and limed hides, and hides and skins treated with alkali or acid may be transported and stored at ambient temperature.
3. After the veterinary checks provided for in Directive 97/78/EC, and without prejudice to the conditions laid down in Article 8(4) of that Directive, raw materials for the production of gelatine for human consumption, for which animal health certification is required, must be transported directly to the establishment at the place of destination.
All precautions, including safe disposal of animal by-products, waste, unused or surplus material, shall be taken to avoid risks of spreading diseases to animals.
CHAPTER III: REQUIREMENTS FOR THE MANUFACTURE OF GELATINE
1. The production process for gelatine must ensure that:
(a) all ruminant bone material derived from animals born, reared or slaughtered in countries or regions with a controlled or undetermined BSE risk in accordance with Community legislation is subjected to a process which ensures that all bone material is finely crushed and degreased with hot water and treated with dilute hydrochloric acid (at minimum concentration of 4 % and pH < 1,5) over a period of at least two days. This treatment is followed either by:
— an alkaline treatment of saturated lime solution (pH > 12,5) for a period of at least 20 days with a heat treatment step of 138 °C minimum during at least four seconds, or
— an acid treatment (pH < 3,5) during 10 hours minimum with a heat treatment step of 138 °C minimum during at least four seconds, or — a heat-and-pressure process for at least 20 minutes with saturated steam of 133 °C at more than 3 bars, or — any approved equivalent process;
(b) other raw material is subjected to a treatment with acid or alkali, followed by one or more rinses. The pH must be adjusted subsequently. Gelatine must be extracted by heating one or more times in succession, followed by purification by means of filtration and heat treatment.
2. A food business operator may produce and store both gelatine intended for human consumption and gelatine not intended for human consumption in the same establishment provided that the raw materials and the production process comply with the requirements applying to gelatine intended for human consumption.
CHAPTER IV: REQUIREMENTS FOR FINISHED PRODUCTS
Food business operators must ensure that gelatine complies with the residue limits set out in the following table.
| Residue | Limit | |--------------------------|-----------| | As | 1 ppm | | Pb | 5 ppm | | Cd | 0,5 ppm | | Hg | 0,15 ppm | | Cr | 10 ppm | | Cu | 30 ppm | | Zn | 50 ppm | | SO₂ (European Pharmacopoeia, latest edition) | 50 ppm | | H₂O₂ (European Pharmacopoeia, latest edition) | 10 ppm |
CHAPTER V: LABELLING
Wrapping and packaging containing gelatine must bear the words ‘gelatine fit for human consumption’ and must indicate the date of minimum durability.
SECTION XV: COLLAGEN
1. Food business operators manufacturing collagen must ensure compliance with the requirements of this section. Without prejudice to other provisions, products derived from collagen must be made from collagen which complies with the requirements of this section.
2. For the purpose of this section, ‘tanning’ means the hardening of hides, using vegetable tanning agents, chromium salts or other substances such as aluminium salts, ferric salts, silicic salts, aldehydes and quinones, or other synthetic hardening agents.
CHAPTER I: REQUIREMENTS FOR RAW MATERIALS
1. For the production of collagen intended for use in food, the following raw materials may be used:
(a) bones, other than specified risk materials as defined in Article 3(1)(g) of Regulation (EC) No 999/2001;
(b) hides and skins of farmed ruminant animals;
(c) pig skins; (d) poultry skin; (e) tendons and sinews; (f) wild game hides and skins; and (g) fish skin and bones.
2. The use of hides and skins is prohibited if they have undergone any tanning process, regardless of whether this process was completed.
3. Raw materials listed in point 1(a) to (d) must derive from animals which have been slaughtered in a slaughterhouse and whose carcases have been found fit for human consumption following ante-and post-mortem inspection or, in the case of hides and skins from wild game, found fit for human consumption.
4. (a) Raw materials that have not undergone any preserving treatment other than chilling, freezing or quick-freezing must come from establishments registered or approved pursuant to Regulation (EC) No 852/2004 or in accordance with this Regulation.
(b) The following treated raw materials may be used:
(i) bones other than specified risk material as defined in Article 3(1)(g) of Regulation (EC) No 999/2001 coming from establishments under the control of and listed by the competent authority, and that have been subjected to one of the following treatments:
— crushed to pieces of approximately 15 mm and degreased with hot water at a temperature of minimum 70 °C for at least 30 minutes, minimum 80 °C for at least 15 minutes, or minimum 90 °C for at least 10 minutes, and then separated and subsequently washed and dried for at least 20 minutes in a stream of hot air with an initial temperature of minimum 350 °C, or for 15 minutes in a stream of hot air with an initial temperature of more than 700 °C,
— sun-dried for a minimum of 42 days at an average temperature of at least 20 °C,
— acid treatment such that the pH is maintained at less than 6 to the core for at least 1 hour before drying;
(ii) hides and skins of farmed ruminant animals, pig skins, poultry skins and wild game hides and skins coming from establishments under the control of and listed by the competent authority, and that have been subjected to one of the following treatments:
— treatment with alkali to establish a pH > 12 to the core followed by salting for at least 7 days,
— drying for at least 42 days at a temperature of at least 20 °C,
— acid treatment such that the pH is maintained at less than 5 to the core for a minimum of 1 hour,
— alkali treatment throughout at a pH > 12 for at least 8 hours;
(iii) bones other than specified risk material defined in Article 3(1)(g) of Regulation (EC) No 999/2001, hides and skins of farmed ruminant animals, pig skins, poultry skins, fish hides and wild game hides and skins that have undergone any other treatment than those specified in point (i) or (ii) and that come from establishments registered or approved pursuant to Regulation (EC) No 852/2004 or in accordance with this Regulation. For the purposes of the first 2 indents of point (b)(ii), the duration of the treatments may include the time of transportation.
The treated raw materials referred to in point (b) must be derived from:
— domestic and farmed ruminant animals, pigs and poultry which have been slaughtered in a slaughterhouse and the carcasses of which have been found fit for human consumption following ante- and post-mortem inspection, or
— from killed wild game whose carcasses have been found fit for human consumption following post-mortem inspection.
Collection centres and tanneries may also supply raw material for the production of collagen intended for human consumption if the competent authority specifically authorises them for this purpose and they fulfil the following requirements.
(a) They must have storage rooms with hard floors and smooth walls that are easy to clean and disinfect and, where appropriate, provided with refrigeration facilities.
(b) The storage rooms must be kept in a satisfactory state of cleanliness and repair, so that they do not constitute a source of contamination for the raw materials.
(c) If raw material not in conformity with this chapter is stored and/or processed in these premises, it must be segregated from raw material in conformity with this chapter throughout the period of receipt, storage, processing and dispatch.
CHAPTER II: TRANSPORT AND STORAGE OF RAW MATERIALS
1. In place of the identification mark provided for in Annex II, Section I, a document indicating the establishment of origin and containing the information set out in the Appendix to this Annex must accompany raw materials during transport, when delivered to a collection centre or tannery and when delivered to the collagen-processing establishment.
2. Raw materials must be transported and stored chilled or frozen unless they are processed within 24 hours after their departure. However, degreased and dried bones or ossein, salted, dried and limed hides, and hides and skins treated with alkali or acid may be transported and stored at ambient temperature.
3. After the veterinary checks provided for in Directive 97/78/EC, and without prejudice to the conditions laid down in Article 8(4) of that Directive, raw materials for the production of collagen for human consumption, for which animal health certification is required, must be transported directly to the establishment at the place of destination.
All precautions, including safe disposal of animal by-products, waste, unused or surplus material, shall be taken to avoid risks of spreading diseases to animals.
CHAPTER III: REQUIREMENTS FOR THE MANUFACTURE OF COLLAGEN
1. The production process for collagen must ensure that:
(a) all ruminant bone material derived from animals born, reared or slaughtered in countries or regions with a controlled or undetermined BSE risk as determined in accordance with Article 5 of Regulation (EC) No 999/2001 is subjected to a process which ensures that all bone material is finely crushed and degreased with hot water and treated with dilute hydrochloric acid (at a minimum concentration of 4 % and pH < 1.5) over a period of at least 2 days; this treatment must be followed by pH adjustment using acid or alkali followed by:
(i) either one or more rinses and at least one of the following processes: — filtration, — milling, — extrusion,
(ii) or any approved equivalent process;
(b) raw materials other than that referred to in point (a) must be subjected to a treatment involving washing, pH adjustment using acid or alkali followed by:
(i) either one or more rinses and at least one of the following processes: — filtration, — milling, — extrusion,
(ii) or any approved equivalent process.
2. After having been subjected to the process referred to in point 1, collagen may undergo a drying process.
3. A food business operator may produce and store both collagen intended for human consumption and collagen not intended for human consumption in the same establishment provided that the raw materials and the production process comply with the requirements applying to collagen intended for human consumption.
CHAPTER IV: REQUIREMENTS FOR FINISHED PRODUCTS
Food business operators must ensure that collagen complies with the residue limits set out in the following table.
| Residue | Limit | |--------------------------|---------| | As | 1 ppm | | Pb | 5 ppm | | Cd | 0.5 ppm | | Hg | 0.15 ppm| | Cr | 10 ppm | | Cu | 30 ppm | | Zn | 50 ppm | | SO₂ (European Pharmacopoeia, latest edition) | 50 ppm | | H₂O₂ (European Pharmacopoeia, latest edition) | 10 ppm |
CHAPTER V: LABELLING
Wrapping and packaging containing collagen must bear the words ‘collagen fit for human consumption’ and indicate the date of preparation.
SECTION XVI: HIGHLY REFINED CHONDROITIN SULPHATE, HYALURONIC ACID, OTHER HYDROLYSED CARTILAGE PRODUCTS, CHITOSAN, GLUCOSAMINE, RENNET, ISINGLASS AND AMINO ACIDS
1. Food business operators manufacturing the following highly refined products of animal origin:
(a) chondroitin sulphate, (b) hyaluronic acid, (c) other hydrolysed cartilage products, (d) chitosan, (e) glucosamine, (f) rennet, (g) isinglass, (h) amino acids that are authorised as food additives in accordance with Regulation (EC) No 1333/2008 of the European Parliament and of the Council (1),
must ensure that the treatment of the raw materials used eliminates any animal or public health risk.
2. The raw materials used for the manufacturing of the highly refined products referred to in point 1 must derive from:
(a) animals, including feathers thereof, which have been slaughtered in a slaughterhouse and whose carcasses have been found fit for human consumption following ante-mortem and post-mortem inspection, or;
(b) fishery products complying with Section VIII.
Human hair may not be used as a source for the manufacture of amino acids.
(1) Regulation (EC) No 1333/2008 of the European Parliament and of the Council of 16 December 2008 on food additives (OJ L 354, 31.12.2008, p. 16). Appendix to ANNEX III
MODEL DOCUMENT TO ACCOMPANY RAW MATERIAL DESTINED FOR THE PRODUCTION OF GELATINE OR COLLAGEN INTENDED FOR HUMAN CONSUMPTION
Number of the commercial document: \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_
I. Identification of raw material
Nature of the raw material: \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_
Animal species: \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_
Type of packaging: \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_
Number of packages: \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_
Net weight (kg): \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_
II. Origin of raw material
Type, name, address and approval/registration/special authorisation number of the establishment of origin:
______________________________________________________________________
Name and address of the consignor (1): \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_
III. Destination of raw material
Type, name, address and approval/registration/special authorisation number of the production establishment of destination:
______________________________________________________________________
Name and address of the consignee (2): \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_
IV. Means of transport: \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_
Done at \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_ on \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_
(Signature of the operator of the establishment of origin or its representatives)
(1) Only if different from the establishment of origin. (2) Only if different from the establishment of destination.
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a131267540abb151becbcb90ab4ce869891f064d | This text is meant purely as a documentation tool and has no legal effect. The Union's institutions do not assume any liability for its contents. The authentic versions of the relevant acts, including their preambles, are those published in the Official Journal of the European Union and available in EUR-Lex. Those official texts are directly accessible through the links embedded in this document.
**B** REGULATION (EU) No 1169/2011 OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL
of 25 October 2011
on the provision of food information to consumers, amending Regulations (EC) No 1924/2006 and (EC) No 1925/2006 of the European Parliament and of the Council, and repealing Commission Directive 87/250/EEC, Council Directive 90/496/EEC, Commission Directive 1999/10/EC, Directive 2000/13/EC of the European Parliament and of the Council, Commission Directives 2002/67/EC and 2008/5/EC and Commission Regulation (EC) No 608/2004
(Text with EEA relevance)
(OJ L 304, 22.11.2011, p. 18)
Amended by:
| Official Journal | No | page | date | |-----------------|----|------|------------| | ►M1 | Commission Delegated Regulation (EU) No 1155/2013 | 21 | L 306 | 7 | 16.11.2013 | | ►M2 | Commission Delegated Regulation (EU) No 78/2014 | 22 | L 27 | 7 | 30.1.2014 |
Corrected by:
| ►C1 | Corrigendum, OJ L 247, 13.9.2012, p. 17 (1169/2011) | | ►C2 | Corrigendum, OJ L 266, 30.9.2016, p. 7 (1169/2011) | REGULATION (EU) No 1169/2011 OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL
of 25 October 2011
on the provision of food information to consumers, amending Regulations (EC) No 1924/2006 and (EC) No 1925/2006 of the European Parliament and of the Council, and repealing Commission Directive 87/250/EEC, Council Directive 90/496/EEC, Commission Directive 1999/10/EC, Directive 2000/13/EC of the European Parliament and of the Council, Commission Directives 2002/67/EC and 2008/5/EC and Commission Regulation (EC) No 608/2004
(Text with EEA relevance)
CHAPTER I
GENERAL PROVISIONS
Article 1
Subject matter and scope
1. This Regulation provides the basis for the assurance of a high level of consumer protection in relation to food information, taking into account the differences in the perception of consumers and their information needs whilst ensuring the smooth functioning of the internal market.
2. This Regulation establishes the general principles, requirements and responsibilities governing food information, and in particular food labelling. It lays down the means to guarantee the right of consumers to information and procedures for the provision of food information, taking into account the need to provide sufficient flexibility to respond to future developments and new information requirements.
3. This Regulation shall apply to food business operators at all stages of the food chain, where their activities concern the provision of food information to consumers. It shall apply to all foods intended for the final consumer, including foods delivered by mass caterers, and foods intended for supply to mass caterers.
This Regulation shall apply to catering services provided by transport undertakings when the departure takes place on the territories of the Member States to which the Treaties apply.
4. This Regulation shall apply without prejudice to labelling requirements provided for in specific Union provisions applicable to particular foods.
Article 2
Definitions
1. For the purposes of this Regulation, the following definitions shall apply: (a) the definitions of ‘food’, ‘food law’, ‘food business’, ‘food business operator’, ‘retail’, ‘placing on the market’ and ‘final consumer’ in Article 2 and in points (1), (2), (3), (7), (8) and (18) of Article 3 of Regulation (EC) No 178/2002;
(b) the definitions of ‘processing’, ‘unprocessed products’ and ‘processed products’ in points (m), (n) and (o) of Article 2(1) of Regulation (EC) No 852/2004 of the European Parliament and of the Council of 29 April 2004 on the hygiene of foodstuffs (1);
(c) the definition of ‘food enzyme’ in point (a) of Article 3(2) of Regulation (EC) No 1332/2008 of the European Parliament and of the Council of 16 December 2008 on food enzymes (2);
(d) the definitions of ‘food additive’, ‘processing aid’ and ‘carrier’ in points (a) and (b) of Article 3(2) of, and in point 5 of Annex I to, Regulation (EC) No 1333/2008 of the European Parliament and of the Council of 16 December 2008 on food additives (3);
(e) the definition of ‘flavourings’ in point (a) of Article 3(2) of Regulation (EC) No 1334/2008 of the European Parliament and of the Council of 16 December 2008 on flavourings and certain food ingredients with flavouring properties for use in and on foods (4);
(f) the definitions of ‘meat’, ‘mechanically separated meat’, ‘meat preparations’, ‘fishery products’ and ‘meat products’ in points 1.1, 1.14, 1.15, 3.1 and 7.1 of Annex I to Regulation (EC) No 853/2004 of the European Parliament and of the Council of 29 April 2004 laying down specific hygiene rules for food of animal origin (5);
(g) the definition of ‘advertising’ in point (a) of Article 2 of Directive 2006/114/EC of the European Parliament and of the Council of 12 December 2006 concerning misleading and comparative advertising (6).
2. The following definitions shall also apply:
(a) ‘food information’ means information concerning a food and made available to the final consumer by means of a label, other accompanying material, or any other means including modern technology tools or verbal communication;
(b) ‘food information law’ means the Union provisions governing the food information, and in particular labelling, including rules of a general nature applicable to all foods in particular circumstances or to certain categories of foods and rules which apply only to specific foods;
(c) ‘mandatory food information’ means the particulars that are required to be provided to the final consumer by Union provisions;
(1) OJ L 139, 30.4.2004, p. 1. (2) OJ L 354, 31.12.2008, p. 7. (3) OJ L 354, 31.12.2008, p. 16. (4) OJ L 354, 31.12.2008, p. 34. (5) OJ L 139, 30.4.2004, p. 55. (6) OJ L 376, 27.12.2006, p. 21. (d) ‘mass caterer’ means any establishment (including a vehicle or a fixed or mobile stall), such as restaurants, canteens, schools, hospitals and catering enterprises in which, in the course of a business, food is prepared to be ready for consumption by the final consumer;
(e) ‘prepacked food’ means any single item for presentation as such to the final consumer and to mass caterers, consisting of a food and the packaging into which it was put before being offered for sale, whether such packaging encloses the food completely or only partially, but in any event in such a way that the contents cannot be altered without opening or changing the packaging; ‘prepacked food’ does not cover foods packed on the sales premises at the consumer’s request or prepacked for direct sale;
(f) ‘ingredient’ means any substance or product, including flavourings, food additives and food enzymes, and any constituent of a compound ingredient, used in the manufacture or preparation of a food and still present in the finished product, even if in an altered form; residues shall not be considered as ‘ingredients’;
(g) ‘place of provenance’ means any place where a food is indicated to come from, and that is not the ‘country of origin’ as determined in accordance with Articles 23 to 26 of Regulation (EEC) No 2913/92; the name, business name or address of the food business operator on the label shall not constitute an indication of the country of origin or place of provenance of food within the meaning of this Regulation;
(h) ‘compound ingredient’ means an ingredient that is itself the product of more than one ingredient;
(i) ‘label’ means any tag, brand, mark, pictorial or other descriptive matter, written, printed, stencilled, marked, embossed or impressed on, or attached to the packaging or container of food;
(j) ‘labelling’ means any words, particulars, trade marks, brand name, pictorial matter or symbol relating to a food and placed on any packaging, document, notice, label, ring or collar accompanying or referring to such food;
(k) ‘field of vision’ means all the surfaces of a package that can be read from a single viewing point;
(l) ‘principal field of vision’ means the field of vision of a package which is most likely to be seen at first glance by the consumer at the time of purchase and that enables the consumer to immediately identify a product in terms of its character or nature and, if applicable, its brand name. If a package has several identical principal fields of vision, the principal field of vision is the one chosen by the food business operator; (m) ‘legibility’ means the physical appearance of information, by means of which the information is visually accessible to the general population and which is determined by various elements, inter alia, font size, letter spacing, spacing between lines, stroke width, type colour, typeface, width-height ratio of the letters, the surface of the material and significant contrast between the print and the background;
(n) ‘legal name’ means the name of a food prescribed in the Union provisions applicable to it or, in the absence of such Union provisions, the name provided for in the laws, regulations and administrative provisions applicable in the Member State in which the food is sold to the final consumer or to mass caterers;
(o) ‘customary name’ means a name which is accepted as the name of the food by consumers in the Member State in which that food is sold, without that name needing further explanation;
(p) ‘descriptive name’ means a name providing a description of the food, and if necessary of its use, which is sufficiently clear to enable consumers to know its true nature and distinguish it from other products with which it might be confused;
(q) ‘primary ingredient’ means an ingredient or ingredients of a food that represent more than 50 % of that food or which are usually associated with the name of the food by the consumer and for which in most cases a quantitative indication is required;
(r) ‘date of minimum durability of a food’ means the date until which the food retains its specific properties when properly stored;
(s) ‘nutrient’ means protein, carbohydrate, fat, fibre, sodium, vitamins and minerals listed in point 1 of Part A of Annex XIII to this Regulation, and substances which belong to or are components of one of those categories;
(t) ‘engineered nanomaterial’ means any intentionally produced material that has one or more dimensions of the order of 100 nm or less or that is composed of discrete functional parts, either internally or at the surface, many of which have one or more dimensions of the order of 100 nm or less, including structures, agglomerates or aggregates, which may have a size above the order of 100 nm but retain properties that are characteristic of the nanoscale.
Properties that are characteristic of the nanoscale include:
(i) those related to the large specific surface area of the materials considered; and/or
(ii) specific physico-chemical properties that are different from those of the non-nanoform of the same material; (u) ‘means of distance communication’ means any means which, without the simultaneous physical presence of the supplier and the consumer, may be used for the conclusion of a contract between those parties.
3. For the purposes of this Regulation the country of origin of a food shall refer to the origin of a food as determined in accordance with Articles 23 to 26 of Regulation (EEC) No 2913/92.
4. The specific definitions set out in Annex I shall also apply.
CHAPTER II GENERAL PRINCIPLES ON FOOD INFORMATION
Article 3 General objectives
1. The provision of food information shall pursue a high level of protection of consumers’ health and interests by providing a basis for final consumers to make informed choices and to make safe use of food, with particular regard to health, economic, environmental, social and ethical considerations.
2. Food information law shall aim to achieve in the Union the free movement of legally produced and marketed food, taking into account, where appropriate, the need to protect the legitimate interests of producers and to promote the production of quality products.
3. When food information law establishes new requirements, a transitional period after the entry into force of the new requirements shall be granted, except in duly justified cases. During such transitional period, foods bearing labels not complying with the new requirements may be placed on the market, and stocks of such foods that have been placed on the market before the end of the transitional period may continue to be sold until exhausted.
4. An open and transparent public consultation shall be conducted, including with stakeholders, directly or through representative bodies, during the preparation, evaluation and revision of food information law, except where the urgency of the matter does not allow it.
Article 4 Principles governing mandatory food information
1. Where mandatory food information is required by food information law, it shall concern information that falls, in particular, into one of the following categories:
(a) information on the identity and composition, properties or other characteristics of the food; (b) information on the protection of consumers’ health and the safe use of a food. In particular, it shall concern information on:
(i) compositional attributes that may be harmful to the health of certain groups of consumers;
(ii) durability, storage and safe use;
(iii) the health impact, including the risks and consequences related to harmful and hazardous consumption of a food;
(c) information on nutritional characteristics so as to enable consumers, including those with special dietary requirements, to make informed choices.
2. When considering the need for mandatory food information and to enable consumers to make informed choices, account shall be taken of a widespread need on the part of the majority of consumers for certain information to which they attach significant value or of any generally accepted benefits to the consumer.
Article 5 Consultation of the European Food Safety Authority
Any Union measure in the field of food information law which is likely to have an effect on public health shall be adopted after consultation of the European Food Safety Authority (‘the Authority’).
CHAPTER III GENERAL FOOD INFORMATION REQUIREMENTS AND RESPONSIBILITIES OF FOOD BUSINESS OPERATORS
Article 6 Basic requirement
Any food intended for supply to the final consumer or to mass caterers shall be accompanied by food information in accordance with this Regulation.
Article 7 Fair information practices
1. Food information shall not be misleading, particularly:
(a) as to the characteristics of the food and, in particular, as to its nature, identity, properties, composition, quantity, durability, country of origin or place of provenance, method of manufacture or production;
(b) by attributing to the food effects or properties which it does not possess; (c) by suggesting that the food possesses special characteristics when in fact all similar foods possess such characteristics, in particular by specifically emphasising the presence or absence of certain ingredients and/or nutrients;
(d) by suggesting, by means of the appearance, the description or pictorial representations, the presence of a particular food or an ingredient, while in reality a component naturally present or an ingredient normally used in that food has been substituted with a different component or a different ingredient.
2. Food information shall be accurate, clear and easy to understand for the consumer.
3. Subject to derogations provided for by Union law applicable to natural mineral waters and foods for particular nutritional uses, food information shall not attribute to any food the property of preventing, treating or curing a human disease, nor refer to such properties.
4. Paragraphs 1, 2 and 3 shall also apply to:
(a) advertising;
(b) the presentation of foods, in particular their shape, appearance or packaging, the packaging materials used, the way in which they are arranged and the setting in which they are displayed.
Article 8
Responsibilities
1. The food business operator responsible for the food information shall be the operator under whose name or business name the food is marketed or, if that operator is not established in the Union, the importer into the Union market.
2. The food business operator responsible for the food information shall ensure the presence and accuracy of the food information in accordance with the applicable food information law and requirements of relevant national provisions.
3. Food business operators which do not affect food information shall not supply food which they know or presume, on the basis of the information in their possession as professionals, to be non-compliant with the applicable food information law and requirements of relevant national provisions.
4. Food business operators, within the businesses under their control, shall not modify the information accompanying a food if such modification would mislead the final consumer or otherwise reduce the level of consumer protection and the possibilities for the final consumer to make informed choices. Food business operators are responsible for any changes they make to food information accompanying a food.
5. Without prejudice to paragraphs 2 to 4, food business operators, within the businesses under their control, shall ensure compliance with the requirements of food information law and relevant national provisions which are relevant to their activities and shall verify that such requirements are met.
6. Food business operators, within the businesses under their control, shall ensure that information relating to non-prepacked food intended for the final consumer or for supply to mass caterers shall be transmitted to the food business operator receiving the food in order to enable, when required, the provision of mandatory food information to the final consumer.
7. In the following cases, food business operators, within the businesses under their control, shall ensure that the mandatory particulars required under Articles 9 and 10 shall appear on the prepackaging or on a label attached thereto, or on the commercial documents referring to the foods where it can be guaranteed that such documents either accompany the food to which they refer or were sent before or at the same time as delivery:
(a) where prepacked food is intended for the final consumer but marketed at a stage prior to sale to the final consumer and where sale to a mass caterer is not involved at that stage;
(b) where prepacked food is intended for supply to mass caterers for preparation, processing, splitting or cutting up.
Notwithstanding the first subparagraph, food business operators shall ensure that the particulars referred to in points (a), (f), (g) and (h) of Article 9(1) also appear on the external packaging in which the prepacked foods are presented for marketing.
8. Food business operators that supply to other food business operators food not intended for the final consumer or to mass caterers shall ensure that those other food business operators are provided with sufficient information to enable them, where appropriate, to meet their obligations under paragraph 2.
CHAPTER IV MANDATORY FOOD INFORMATION
SECTION 1 Content and presentation
Article 9 List of mandatory particulars
1. In accordance with Articles 10 to 35 and subject to the exceptions contained in this Chapter, indication of the following particulars shall be mandatory:
(a) the name of the food; (b) the list of ingredients;
(c) any ingredient or processing aid listed in Annex II or derived from a substance or product listed in Annex II causing allergies or intolerances used in the manufacture or preparation of a food and still present in the finished product, even if in an altered form;
(d) the quantity of certain ingredients or categories of ingredients;
(e) the net quantity of the food;
(f) the date of minimum durability or the ‘use by’ date;
(g) any special storage conditions and/or conditions of use;
(h) the name or business name and address of the food business operator referred to in Article 8(1);
(i) the country of origin or place of provenance where provided for in Article 26;
(j) instructions for use where it would be difficult to make appropriate use of the food in the absence of such instructions;
(k) with respect to beverages containing more than 1,2 % by volume of alcohol, the actual alcoholic strength by volume;
(l) a nutrition declaration.
2. The particulars referred to in paragraph 1 shall be indicated with words and numbers. Without prejudice to Article 35, they may additionally be expressed by means of pictograms or symbols.
3. Where the Commission adopts delegated and implementing acts referred to in this Article, the particulars referred to in paragraph 1 may alternatively be expressed by means of pictograms or symbols instead of words or numbers.
In order to ensure that consumers benefit from other means of expression of mandatory food information than words and numbers, and provided that the same level of information as with words and numbers is ensured, the Commission, taking into account evidence of uniform consumer understanding, may establish, by means of delegated acts in accordance with Article 51, the criteria subject to which one or more particulars referred to in paragraph 1 may be expressed by pictograms or symbols instead of words or numbers.
4. For the purpose of ensuring the uniform implementation of paragraph 3 of this Article, the Commission may adopt implementing acts on the modalities of application of the criteria defined in accordance with paragraph 3 to express one or more particulars by means of pictograms or symbols instead of words or numbers. Those implementing acts shall be adopted in accordance with the examination procedure referred to in Article 48(2). Article 10
Additional mandatory particulars for specific types or categories of foods
1. In addition to the particulars listed in Article 9(1), additional mandatory particulars for specific types or categories of foods are laid down in Annex III.
2. In order to ensure consumer information with respect to specific types or categories of foods and to take account of technical progress, scientific developments, the protection of consumers’ health or the safe use of a food, the Commission may amend Annex III by means of delegated acts, in accordance with Article 51.
Where, in the case of the emergence of a risk to consumers’ health, imperative grounds of urgency so require, the procedure provided for in Article 52 shall apply to delegated acts adopted pursuant to this Article.
Article 11
Weights and measures
Article 9 shall be without prejudice to more specific Union provisions regarding weights and measures.
Article 12
Availability and placement of mandatory food information
1. Mandatory food information shall be available and shall be easily accessible, in accordance with this Regulation, for all foods.
2. In the case of prepacked food, mandatory food information shall appear directly on the package or on a label attached thereto.
3. In order to ensure that consumers benefit from other means of provision of mandatory food information better adapted for certain mandatory particulars, and provided that the same level of information as by means of the package or the label is ensured, the Commission, taking into account evidence of uniform consumer understanding and of the wide use of these means by consumers, may establish, by means of delegated acts in accordance with Article 51, criteria subject to which certain mandatory particulars may be expressed by means other than on the package or on the label.
4. For the purposes of ensuring the uniform implementation of paragraph 3 of this Article, the Commission may adopt implementing acts on the modalities of application of the criteria referred to in paragraph 3 in order to express certain mandatory particulars by means other than on the package or on the label. Those implementing acts shall be adopted in accordance with the examination procedure referred to in Article 48(2).
5. In the case of non-prepacked food, the provisions of Article 44 shall apply.
Article 13
Presentation of mandatory particulars
1. Without prejudice to the national measures adopted under Article 44(2), mandatory food information shall be marked in a conspicuous place in such a way as to be easily visible, clearly legible and, where appropriate, indelible. It shall not in any way be hidden, obscured, detracted from or interrupted by any other written or pictorial matter or any other intervening material.
2. Without prejudice to specific Union provisions applicable to particular foods, when appearing on the package or on the label attached thereto, the mandatory particulars listed in Article 9(1) shall be printed on the package or on the label in such a way as to ensure clear legibility, in characters using a font size where the x-height, as defined in Annex IV, is equal to or greater than 1,2 mm.
3. In case of packaging or containers the largest surface of which has an area of less than 80 cm², the x-height of the font size referred to in paragraph 2 shall be equal to or greater than 0,9 mm.
4. For the purpose of achieving the objectives of this Regulation, the Commission shall, by means of delegated acts in accordance with Article 51, establish rules for legibility.
For the same purpose as referred to in the first subparagraph, the Commission may, by means of delegated acts in accordance with Article 51, extend the requirements under paragraph 5 of this Article to additional mandatory particulars for specific types or categories of foods.
5. The particulars listed in points (a), (e) and (k) of Article 9(1) shall appear in the same field of vision.
6. Paragraph 5 of this Article shall not apply in the cases specified in Article 16(1) and (2).
Article 14
Distance selling
1. Without prejudice to the information requirements laid down in Article 9, in the case of prepacked foods offered for sale by means of distance communication:
(a) mandatory food information, except the particulars provided in point (f) of Article 9(1), shall be available before the purchase is concluded and shall appear on the material supporting the distance selling or be provided through other appropriate means clearly identified by the food business operator. When other appropriate means are used, the mandatory food information shall be provided without the food business operator charging consumers supplementary costs; (b) all mandatory particulars shall be available at the moment of delivery.
2. In the case of non-prepacked foods offered for sale by means of distance communication, the particulars required under Article 44 shall be made available in accordance with paragraph 1 of this Article.
3. Point (a) of paragraph 1 shall not apply to foods offered for sale by means of automatic vending machines or automated commercial premises.
Article 15 Language requirements
1. Without prejudice to Article 9(3), mandatory food information shall appear in a language easily understood by the consumers of the Member States where a food is marketed.
2. Within their own territory, the Member States in which a food is marketed may stipulate that the particulars shall be given in one or more languages from among the official languages of the Union.
3. Paragraphs 1 and 2 shall not preclude the particulars from being indicated in several languages.
Article 16 Omission of certain mandatory particulars
1. In the case of glass bottles intended for reuse which are indelibly marked and which therefore bear no label, ring or collar only the particulars listed in points (a), (c), (e), (f) and (l) of Article 9(1) shall be mandatory.
2. In the case of packaging or containers the largest surface of which has an area of less than 10 cm² only the particulars listed in points (a), (c), (e) and (f) of Article 9(1) shall be mandatory on the package or on the label. The particulars referred to in point (b) of Article 9(1) shall be provided through other means or shall be made available at the request of the consumer.
3. Without prejudice to other Union provisions requiring a mandatory nutrition declaration, the declaration referred to in point (l) of Article 9(1) shall not be mandatory for the foods listed in Annex V.
4. Without prejudice to other Union provisions requiring a list of ingredients or a mandatory nutrition declaration, the particulars referred to in points (b) and (l) of Article 9(1) shall not be mandatory for beverages containing more than 1,2 % by volume of alcohol. By 13 December 2014, the Commission shall produce a report concerning the application of Article 18 and Article 30(1) to the products referred to in this paragraph, and addressing whether alcoholic beverages should in future be covered, in particular, by the requirement to provide the information on the energy value, and the reasons justifying possible exemptions, taking into account the need to ensure coherence with other relevant Union policies. In this context, the Commission shall consider the need to propose a definition of ‘alco-pops’.
The Commission shall accompany that report by a legislative proposal, if appropriate, determining the rules for a list of ingredients or a mandatory nutrition declaration for those products.
SECTION 2
Detailed provisions on mandatory particulars
Article 17
Name of the food
1. The name of the food shall be its legal name. In the absence of such a name, the name of the food shall be its customary name, or, if there is no customary name or the customary name is not used, a descriptive name of the food shall be provided.
2. The use in the Member State of marketing of the name of the food under which the product is legally manufactured and marketed in the Member State of production shall be allowed. However, where the application of the other provisions of this Regulation, in particular those set out in Article 9, would not enable consumers in the Member State of marketing to know the true nature of the food and to distinguish it from foods with which they could confuse it, the name of the food shall be accompanied by other descriptive information which shall appear in proximity to the name of the food.
3. In exceptional cases, the name of the food in the Member State of production shall not be used in the Member State of marketing when the food which it designates in the Member State of production is so different, as regards its composition or manufacture, from the food known under that name in the Member State of marketing that paragraph 2 is not sufficient to ensure, in the Member State of marketing, correct information for consumers.
4. The name of the food shall not be replaced with a name protected as intellectual property, brand name or fancy name.
5. Specific provisions on the name of the food and particulars that shall accompany it are laid down in Annex VI. Article 18
List of ingredients
1. The list of ingredients shall be headed or preceded by a suitable heading which consists of or includes the word ‘ingredients’. It shall include all the ingredients of the food, in descending order of weight, as recorded at the time of their use in the manufacture of the food.
2. Ingredients shall be designated by their specific name, where applicable, in accordance with the rules laid down in Article 17 and in Annex VI.
3. All ingredients present in the form of engineered nanomaterials shall be clearly indicated in the list of ingredients. The names of such ingredients shall be followed by the word ‘nano’ in brackets.
4. Technical rules for applying paragraphs 1 and 2 of this Article are laid down in Annex VII.
5. For the purposes of achieving the objectives of this Regulation, the Commission shall, by means of delegated acts in accordance with Article 51, adjust and adapt the definition of engineered nanomaterials referred to in point (t) of Article 2(2) to technical and scientific progress or to definitions agreed at international level.
Article 19
Omission of the list of ingredients
1. The following foods shall not be required to bear a list of ingredients:
(a) fresh fruit and vegetables, including potatoes, which have not been peeled, cut or similarly treated;
(b) carbonated water, the description of which indicates that it has been carbonated;
(c) fermentation vinegars derived exclusively from a single basic product, provided that no other ingredient has been added;
(d) cheese, butter, fermented milk and cream, to which no ingredient has been added other than lactic products, food enzymes and micro-organism cultures essential to manufacture, or in the case of cheese other than fresh cheese and processed cheese the salt needed for its manufacture;
(e) foods consisting of a single ingredient, where:
(i) the name of the food is identical to the ingredient name; or
(ii) the name of the food enables the nature of the ingredient to be clearly identified. 2. In order to take into account the relevance for the consumer of a list of ingredients for specific types or categories of foods, the Commission may, in exceptional cases, by means of delegated acts, in accordance with Article 51, supplement paragraph 1 of this Article, provided that omissions do not result in the final consumer or mass caterers being inadequately informed.
Article 20
Omission of constituents of food from the list of ingredients
Without prejudice to Article 21, the following constituents of a food shall not be required to be included in the list of ingredients:
(a) the constituents of an ingredient which have been temporarily separated during the manufacturing process and later reintroduced but not in excess of their original proportions;
(b) food additives and food enzymes:
(i) whose presence in a given food is solely due to the fact that they were contained in one or more ingredients of that food, in accordance with the carry-over principle referred to in points (a) and (b) of Article 18(1) of Regulation (EC) No 1333/2008, provided that they serve no technological function in the finished product; or
(ii) which are used as processing aids;
(c) carriers and substances which are not food additives but are used in the same way and with the same purpose as carriers, and which are used in the quantities strictly necessary;
(d) substances which are not food additives but are used in the same way and with the same purpose as processing aids and are still present in the finished product, even if in an altered form;
(e) water:
(i) where the water is used during the manufacturing process solely for the reconstitution of an ingredient used in concentrated or dehydrated form; or
(ii) in the case of a liquid medium which is not normally consumed.
Article 21
Labelling of certain substances or products causing allergies or intolerances
1. Without prejudice to the rules adopted under Article 44(2), the particulars referred to in point (c) of Article 9(1) shall meet the following requirements:
(a) they shall be indicated in the list of ingredients in accordance with the rules laid down in Article 18(1), with a clear reference to the name of the substance or product as listed in Annex II; and (b) the name of the substance or product as listed in Annex II shall be emphasised through a typeset that clearly distinguishes it from the rest of the list of ingredients, for example by means of the font, style or background colour.
In the absence of a list of ingredients, the indication of the particulars referred to in point (c) of Article 9(1) shall comprise the word ‘contains’ followed by the name of the substance or product as listed in Annex II.
Where several ingredients or processing aids of a food originate from a single substance or product listed in Annex II, the labelling shall make it clear for each ingredient or processing aid concerned.
The indication of the particulars referred to in point (c) of Article 9(1) shall not be required in cases where the name of the food clearly refers to the substance or product concerned.
2. In order to ensure better information for consumers and to take account of the most recent scientific progress and technical knowledge, the Commission shall systematically re-examine and, where necessary, update the list in Annex II by means of delegated acts, in accordance with Article 51.
Where, in the case of the emergence of a risk to consumers’ health, imperative grounds of urgency so require, the procedure provided for in Article 52 shall apply to delegated acts adopted pursuant to this Article.
**Article 22**
**Quantitative indication of ingredients**
1. The indication of the quantity of an ingredient or category of ingredients used in the manufacture or preparation of a food shall be required where the ingredient or category of ingredients concerned:
(a) appears in the name of the food or is usually associated with that name by the consumer;
(b) is emphasised on the labelling in words, pictures or graphics; or
(c) is essential to characterise a food and to distinguish it from products with which it might be confused because of its name or appearance.
2. Technical rules for applying paragraph 1, including specific cases where the quantitative indication shall not be required in respect of certain ingredients, are laid down in Annex VIII.
**Article 23**
**Net quantity**
1. The net quantity of a food shall be expressed using litres, centilitres, millilitres, kilograms or grams, as appropriate: (a) in units of volume in the case of liquid products;
(b) in units of mass in the case of other products.
2. In order to ensure a better understanding by the consumer of the food information on the labelling, the Commission may establish for certain specified foods, by means of delegated acts, in accordance with Article 51, a manner for the expression of the net quantity other than the one laid down in paragraph 1 of this Article.
3. Technical rules for applying paragraph 1, including specific cases where the indication of the net quantity shall not be required, are laid down in Annex IX.
Article 24
Minimum durability date, ‘use by’ date and date of freezing
1. In the case of foods which, from a microbiological point of view, are highly perishable and are therefore likely after a short period to constitute an immediate danger to human health, the date of minimum durability shall be replaced by the ‘use by’ date. After the ‘use by’ date a food shall be deemed to be unsafe in accordance with Article 14(2) to (5) of Regulation (EC) No 178/2002.
2. The appropriate date shall be expressed in accordance with Annex X.
3. In order to ensure a uniform application of the manner of indicating the date of minimum durability referred to in point 1(c) of Annex X, the Commission may adopt implementing acts setting out rules in this regard. Those implementing acts shall be adopted in accordance with the examination procedure referred to in Article 48(2).
Article 25
Storage conditions or conditions of use
1. In cases where foods require special storage conditions and/or conditions of use, those conditions shall be indicated.
2. To enable appropriate storage or use of the food after opening the package, the storage conditions and/or time limit for consumption shall be indicated, where appropriate.
Article 26
Country of origin or place of provenance
1. This Article shall apply without prejudice to labelling requirements provided for in specific Union provisions, in particular Council Regulation (EC) No 509/2006 of 20 March 2006 on agricultural products and foodstuffs as traditional specialties guaranteed (1) and Council Regulation (EC) No 510/2006 of 20 March 2006 on the protection of geographical indications and designations of origin for agricultural products and foodstuffs (2).
(1) OJ L 93, 31.3.2006, p. 1. (2) OJ L 93, 31.3.2006, p. 12. 2. Indication of the country of origin or place of provenance shall be mandatory:
(a) where failure to indicate this might mislead the consumer as to the true country of origin or place of provenance of the food, in particular if the information accompanying the food or the label as a whole would otherwise imply that the food has a different country of origin or place of provenance;
(b) for meat falling within the Combined Nomenclature (‘CN’) codes listed in Annex XI. The application of this point shall be subject to the adoption of implementing acts referred to in paragraph 8.
3. Where the country of origin or the place of provenance of a food is given and where it is not the same as that of its primary ingredient:
(a) the country of origin or place of provenance of the primary ingredient in question shall also be given; or
(b) the country of origin or place of provenance of the primary ingredient shall be indicated as being different to that of the food.
The application of this paragraph shall be subject to the adoption of the implementing acts referred to in paragraph 8.
4. Within 5 years from the date of application of point (b) of paragraph 2, the Commission shall submit a report to the European Parliament and the Council to evaluate the mandatory indication of the country of origin or place of provenance for products referred to in that point.
5. By 13 December 2014, the Commission shall submit reports to the European Parliament and the Council regarding the mandatory indication of the country of origin or place of provenance for the following foods:
(a) types of meat other than beef and those referred to in point (b) of paragraph 2;
(b) milk;
(c) milk used as an ingredient in dairy products;
(d) unprocessed foods;
(e) single ingredient products;
(f) ingredients that represent more than 50 % of a food.
6. By 13 December 2013, the Commission shall submit a report to the European Parliament and the Council regarding the mandatory indication of the country of origin or place of provenance for meat used as an ingredient.
7. The reports referred to in paragraphs 5 and 6 shall take into account the need for the consumer to be informed, the feasibility of providing the mandatory indication of the country of origin or place of provenance and an analysis of the costs and benefits of the introduction of such measures, including the legal impact on the internal market and the impact on international trade. The Commission may accompany those reports with proposals to modify the relevant Union provisions.
8. By 13 December 2013, following impact assessments, the Commission shall adopt implementing acts concerning the application of point (b) of paragraph 2 of this Article and the application of paragraph 3 of this Article. Those implementing acts shall be adopted in accordance with the examination procedure referred to in Article 48(2).
9. In the case of foods referred to in point (b) of paragraph 2, in point (a) of paragraph 5 and in paragraph 6, the reports and the impact assessments under this Article shall consider, inter alia, the options for the modalities of expressing the country of origin or place of provenance of those foods, in particular with respect to each of the following determining points in the life of the animal:
(a) place of birth; (b) place of rearing; (c) place of slaughter.
Article 27
Instructions for use
1. The instructions for use of a food shall be indicated in such a way as to enable appropriate use to be made of the food.
2. The Commission may adopt implementing acts setting out detailed rules concerning the implementation of paragraph 1 for certain foods. Those implementing acts shall be adopted in accordance with the examination procedure referred to in Article 48(2).
Article 28
Alcoholic strength
1. The rules concerning indication of the alcoholic strength by volume shall, in the case of products classified in CN code 2204, be those laid down in the specific Union provisions applicable to such products.
2. The actual alcoholic strength by volume of beverages containing more than 1,2 % by volume of alcohol other than those referred to in paragraph 1 shall be indicated in accordance with Annex XII.
SECTION 3
Nutrition declaration
Article 29
Relationship with other legislation
1. This Section shall not apply to foods falling within the scope of the following legislation: (a) Directive 2002/46/EC of the European Parliament and of the Council of 10 June 2002 on the approximation of the laws of the Member States relating to food supplements (1);
(b) Directive 2009/54/EC of the European Parliament and of the Council of 18 June 2009 on the exploitation and marketing of natural mineral waters (2).
2. This Section shall apply without prejudice to Directive 2009/39/EC of the European Parliament and of the Council of 6 May 2009 on foodstuffs intended for particular nutritional uses (3) and specific Directives as referred to in Article 4(1) of that Directive.
Article 30
Content
1. The mandatory nutrition declaration shall include the following:
(a) energy value; and
(b) the amounts of fat, saturates, carbohydrate, sugars, protein and salt.
Where appropriate, a statement indicating that the salt content is exclusively due to the presence of naturally occurring sodium may appear in close proximity to the nutrition declaration.
2. The content of the mandatory nutrition declaration referred to in paragraph 1 may be supplemented with an indication of the amounts of one or more of the following:
(a) mono-unsaturates;
(b) polyunsaturates;
(c) polyols;
(d) starch;
(e) fibre;
(f) any of the vitamins or minerals listed in point 1 of Part A of Annex XIII, and present in significant amounts as defined in point 2 of Part A of Annex XIII.
3. Where the labelling of a prepacked food provides the mandatory nutrition declaration referred to in paragraph 1, the following information may be repeated thereon:
(a) the energy value; or
(b) the energy value together with the amounts of fat, saturates, sugars, and salt.
(1) OJ L 183, 12.7.2002, p. 51. (2) OJ L 164, 26.6.2009, p. 45. (3) OJ L 124, 20.5.2009, p. 21. 4. By way of derogation from Article 36(1), where the labelling of the products referred to in Article 16(4) provides a nutrition declaration, the content of the declaration may be limited to the energy value only.
5. Without prejudice to Article 44 and by way of derogation from Article 36(1), where the labelling of the products referred to in Article 44(1) provides a nutrition declaration, the content of that declaration may be limited only to:
(a) the energy value; or
(b) the energy value together with the amounts of fat, saturates, sugars, and salt.
6. In order to take account of the relevance of particulars referred to in paragraphs 2 to 5 of this Article for the information of consumers, the Commission may, by means of delegated acts, in accordance with Article 51, amend the lists in paragraphs 2 to 5 of this Article, by adding or removing particulars.
7. By 13 December 2014, the Commission, taking into account scientific evidence and experience acquired in Member States, shall submit a report on the presence of trans fats in foods and in the overall diet of the Union population. The aim of the report shall be to assess the impact of appropriate means that could enable consumers to make healthier food and overall dietary choices or that could promote the provision of healthier food options to consumers, including, among others, the provision of information on trans fats to consumers or restrictions on their use. The Commission shall accompany this report with a legislative proposal, if appropriate.
Article 31
Calculation
1. The energy value shall be calculated using the conversion factors listed in Annex XIV.
2. The Commission may adopt, by means of delegated acts, in accordance with Article 51, conversion factors for the vitamins and minerals referred to in point 1 of Part A of Annex XIII, in order to calculate more precisely the content of such vitamins and minerals in foods. Those conversion factors shall be added to Annex XIV.
3. The energy value and the amounts of nutrients referred to in Article 30(1) to (5) shall be those of the food as sold.
Where appropriate, the information may relate to the food after preparation, provided that sufficiently detailed preparation instructions are given and the information relates to the food as prepared for consumption. 4. The declared values shall, according to the individual case, be average values based on:
(a) the manufacturer’s analysis of the food;
(b) a calculation from the known or actual average values of the ingredients used; or
(c) a calculation from generally established and accepted data.
The Commission may adopt implementing acts setting out detailed rules for the uniform implementation of this paragraph with regard to the precision of the declared values such as the differences between the declared values and those established in the course of official checks. Those implementing acts shall be adopted in accordance with the examination procedure referred to in Article 48(2).
Article 32
Expression per 100 g or per 100 ml
1. The energy value and the amount of nutrients referred to in Article 30(1) to (5) shall be expressed using the measurement units listed in Annex XV.
2. The energy value and the amount of nutrients referred to in Article 30(1) to (5) shall be expressed per 100 g or per 100 ml.
3. When provided, the declaration on vitamins and minerals shall, in addition to the form of expression referred to in paragraph 2, be expressed as a percentage of the reference intakes set out in point 1 of Part A of Annex XIII in relation to per 100 g or per 100 ml.
4. In addition to the form of expression referred to in paragraph 2 of this Article, the energy value and the amounts of nutrients referred to in Article 30(1), (3), (4) and (5) may be expressed, as appropriate, as a percentage of the reference intakes set out in Part B of Annex XIII in relation to per 100 g or per 100 ml.
5. Where information is provided pursuant to paragraph 4, the following additional statement shall be indicated in close proximity to it: ‘Reference intake of an average adult (8 400 kJ/2 000 kcal)’.
Article 33
Expression on a per portion basis or per consumption unit
1. In the following cases, the energy value and the amounts of nutrients referred to in Article 30(1) to (5) may be expressed per portion and/or per consumption unit, easily recognisable by the consumer, provided that the portion or the unit used is quantified on the label and that the number of portions or units contained in the package is stated: (a) in addition to the form of expression per 100 g or per 100 ml referred to in Article 32(2);
(b) in addition to the form of expression per 100 g or per 100 ml referred to in Article 32(3) regarding the amounts of vitamins and minerals;
(c) in addition to or instead of the form of expression per 100 g or per 100 ml referred to in Article 32(4).
2. By way of derogation from Article 32(2), in the cases referred to in point (b) of Article 30(3) the amount of nutrients and/or the percentage of the reference intakes set out in Part B of Annex XIII may be expressed on the basis of per portion or per consumption unit alone.
When the amounts of nutrients are expressed on the basis of per portion or per consumption unit alone in accordance with the first subparagraph, the energy value shall be expressed per 100 g or per 100 ml and on the basis of per portion or per consumption unit.
3. By way of derogation from Article 32(2), in the cases referred to in Article 30(5) the energy value and the amount of nutrients and/or the percentage of the reference intakes set out in Part B of Annex XIII may be expressed on the basis of per portion or per consumption unit alone.
4. The portion or unit used shall be indicated in close proximity to the nutrition declaration.
5. In order to ensure the uniform implementation of the expression of the nutrition declaration per portion or per unit of consumption and to provide for a uniform basis of comparison for the consumer, the Commission shall, taking into account actual consumption behaviour of consumers as well as dietary recommendations, adopt, by means of implementing acts, rules on the expression per portion or per consumption unit for specific categories of foods. Those implementing acts shall be adopted in accordance with the examination procedure referred to in Article 48(2).
Article 34
Presentation
1. The particulars referred to in Article 30(1) and (2) shall be included in the same field of vision. They shall be presented together in a clear format and, where appropriate, in the order of presentation provided for in Annex XV.
2. The particulars referred to in Article 30(1) and (2) shall be presented, if space permits, in tabular format with the numbers aligned. Where space does not permit, the declaration shall appear in linear format.
3. The particulars referred to in Article 30(3) shall be presented:
(a) in the principal field of vision; and
(b) using a font size in accordance with Article 13(2). The particulars referred to in Article 30(3) may be presented in a format different from that specified in paragraph 2 of this Article.
4. The particulars referred to in Article 30(4) and (5) may be presented in a format different from that specified in paragraph 2 of this Article.
5. In cases where the energy value or the amount of nutrient(s) in a product is negligible, the information on those elements may be replaced by a statement such as ‘Contains negligible amounts of …’ and shall be indicated in close proximity to the nutrition declaration when present.
In order to ensure the uniform implementation of this paragraph, the Commission may adopt implementing acts regarding the energy value and amounts of nutrients referred to in Article 30(1) to (5) which can be regarded as negligible. Those implementing acts shall be adopted in accordance with the examination procedure referred to in Article 48(2).
6. In order to ensure a uniform application of the manner of presenting the nutrition declaration under the formats referred to in paragraphs 1 to 4 of this Article, the Commission may adopt implementing acts in this regard. Those implementing acts shall be adopted in accordance with the examination procedure referred to in Article 48(2).
**Article 35**
**Additional forms of expression and presentation**
1. In addition to the forms of expression referred to in Article 32(2) and (4) and Article 33 and to the presentation referred to in Article 34(2), the energy value and the amount of nutrients referred to in Article 30(1) to (5) may be given by other forms of expression and/or presented using graphical forms or symbols in addition to words or numbers provided that the following requirements are met:
(a) they are based on sound and scientifically valid consumer research and do not mislead the consumer as referred to in Article 7;
(b) their development is the result of consultation with a wide range of stakeholder groups;
(c) they aim to facilitate consumer understanding of the contribution or importance of the food to the energy and nutrient content of a diet;
(d) they are supported by scientifically valid evidence of understanding of such forms of expression or presentation by the average consumer;
(e) in the case of other forms of expression, they are based either on the harmonised reference intakes set out in Annex XIII, or in their absence, on generally accepted scientific advice on intakes for energy or nutrients; (f) they are objective and non-discriminatory; and
(g) their application does not create obstacles to the free movement of goods.
2. Member States may recommend to food business operators the use of one or more additional forms of expression or presentation of the nutrition declaration that they consider as best fulfilling the requirements laid down in points (a) to (g) of paragraph 1. Member States shall provide the Commission with the details of such additional forms of expression and presentation.
3. Member States shall ensure an appropriate monitoring of additional forms of expression or presentation of the nutrition declaration that are present on the market in their territory.
To facilitate the monitoring of the use of such additional forms of expression or presentation, Member States may require food business operators placing on the market in their territory foods bearing such information to notify the competent authority of the use of an additional form of expression or presentation and to provide them with the relevant justifications regarding the fulfilment of the requirements laid down in points (a) to (g) of paragraph 1. In such cases, information on the discontinuation of the use of such additional forms of expression or presentation may also be required.
4. The Commission shall facilitate and organise the exchange of information between Member States, itself and stakeholders on matters relating to the use of any additional forms of expression or presentation of the nutrition declaration.
5. By 13 December 2017, in the light of the experience gained, the Commission shall submit a report to the European Parliament and the Council on the use of additional forms of expression and presentation, on their effect on the internal market and on the advisability of further harmonisation of those forms of expression and presentation. For this purpose, Member States shall provide the Commission with relevant information concerning the use of such additional forms of expression or presentation on the market in their territory. The Commission may accompany this report with proposals to modify the relevant Union provisions.
6. In order to ensure the uniform application of this Article, the Commission shall adopt implementing acts setting out detailed rules concerning the implementation of paragraphs 1, 3 and 4 of this Article. Those implementing acts shall be adopted in accordance with the examination procedure referred to in Article 48(2).
CHAPTER V
VOLUNTARY FOOD INFORMATION
Article 36
Applicable requirements
1. Where food information referred to in Articles 9 and 10 is provided on a voluntary basis, such information shall comply with the requirements laid down in Sections 2 and 3 of Chapter IV.
2. Food information provided on a voluntary basis shall meet the following requirements:
(a) it shall not mislead the consumer, as referred to in Article 7;
(b) it shall not be ambiguous or confusing for the consumer; and
(c) it shall, where appropriate, be based on the relevant scientific data.
3. The Commission shall adopt implementing acts on the application of the requirements referred to in paragraph 2 of this Article to the following voluntary food information:
(a) information on the possible and unintentional presence in food of substances or products causing allergies or intolerances;
(b) information related to suitability of a food for vegetarians or vegans;
(c) the indication of reference intakes for specific population groups in addition to the reference intakes set out in Annex XIII; and
(d) information on the absence or reduced presence of gluten in food.
Those implementing acts shall be adopted in accordance with the examination procedure referred to in Article 48(2).
4. In order to ensure that consumers are appropriately informed, where voluntary food information is provided by food business operators on a divergent basis which might mislead or confuse the consumer, the Commission may, by means of delegated acts, in accordance with Article 51, provide for additional cases of provision of voluntary food information to the ones referred to in paragraph 3 of this Article.
Article 37
Presentation
Voluntary food information shall not be displayed to the detriment of the space available for mandatory food information.
CHAPTER VI
NATIONAL MEASURES
Article 38
National measures
1. As regards the matters specifically harmonised by this Regulation, Member States may not adopt nor maintain national measures unless authorised by Union law. Those national measures shall not give rise to obstacles to free movement of goods, including discrimination as regards foods from other Member States.
2. Without prejudice to Article 39, Member States may adopt national measures concerning matters not specifically harmonised by this Regulation provided that they do not prohibit, impede or restrict the free movement of goods that are in conformity with this Regulation.
Article 39
National measures on additional mandatory particulars
1. In addition to the mandatory particulars referred to in Article 9(1) and in Article 10, Member States may, in accordance with the procedure laid down in Article 45, adopt measures requiring additional mandatory particulars for specific types or categories of foods, justified on grounds of at least one of the following:
(a) the protection of public health;
(b) the protection of consumers;
(c) the prevention of fraud;
(d) the protection of industrial and commercial property rights, indications of provenance, registered designations of origin and the prevention of unfair competition.
2. By means of paragraph 1, Member States may introduce measures concerning the mandatory indication of the country of origin or place of provenance of foods only where there is a proven link between certain qualities of the food and its origin or provenance. When notifying such measures to the Commission, Member States shall provide evidence that the majority of consumers attach significant value to the provision of that information.
Article 40
Milk and milk products
Member States may adopt measures derogating from Article 9(1) and Article 10(1) in the case of milk and milk products presented in glass bottles intended for reuse.
They shall communicate to the Commission the text of those measures without delay.
Article 41
Alcoholic beverages
Member States may, pending the adoption of the Union provisions referred to in Article 16(4), maintain national measures as regards the listing of ingredients in the case of beverages containing more than 1.2 % by volume of alcohol.
Article 42
Expression of the net quantity
In the absence of Union provisions referred to in Article 23(2) concerning the expression of net quantity for specified foods in a different manner to that provided for in Article 23(1), Member States may maintain national measures adopted before 12 December 2011. By 13 December 2014, Member States shall inform the Commission about such measures. The Commission shall bring them to the attention of the other Member States.
**Article 43**
**Voluntary indication of reference intakes for specific population groups**
Pending the adoption of the Union provisions referred to in point (c) of Article 36(3), Member States may adopt national measures on the voluntary indication of reference intakes for specific population groups.
Member States shall communicate to the Commission the text of those measures without delay.
**Article 44**
**National measures for non-prepacked food**
1. Where foods are offered for sale to the final consumer or to mass caterers without prepackaging, or where foods are packed on the sales premises at the consumer’s request or prepacked for direct sale:
(a) the provision of the particulars specified in point (c) of Article 9(1) is mandatory;
(b) the provision of other particulars referred to in Articles 9 and 10 is not mandatory unless Member States adopt national measures requiring the provision of some or all of those particulars or elements of those particulars.
2. Member States may adopt national measures concerning the means through which the particulars or elements of those particulars specified in paragraph 1 are to be made available and, where appropriate, their form of expression and presentation.
3. Member States shall communicate to the Commission the text of the measures referred to in point (b) of paragraph 1 and in paragraph 2 without delay.
**Article 45**
**Notification procedure**
1. When reference is made to this Article, the Member State which deems it necessary to adopt new food information legislation shall notify in advance the Commission and the other Member States of the measures envisaged and give the reasons justifying them.
2. The Commission shall consult the Standing Committee on the Food Chain and Animal Health set up by Article 58(1) of Regulation (EC) No 178/2002 if it considers such consultation to be useful or if a Member State so requests. In that case, the Commission shall ensure that this process is transparent for all stakeholders.
3. The Member State which deems it necessary to adopt new food information legislation may take the envisaged measures only 3 months after the notification referred to in paragraph 1, provided that it has not received a negative opinion from the Commission.
4. If the Commission’s opinion is negative, and before the expiry of the period referred to in paragraph 3 of this Article, the Commission shall initiate the examination procedure referred to in Article 48(2) in order to determine whether the envisaged measures may be implemented subject, if necessary, to the appropriate modifications.
5. Directive 98/34/EC of the European Parliament and of the Council of 22 June 1998 laying down a procedure for the provision of information in the field of technical standards and regulations and of rules on Information Society services (1) shall not apply to the measures falling within the notification procedure specified in this Article.
CHAPTER VII IMPLEMENTING, AMENDING AND FINAL PROVISIONS
Article 46 Amendments to the Annexes
In order to take into account technical progress, scientific developments, consumers’ health, or consumers’ need for information, and subject to the provisions of Article 10(2) and Article 21(2) relating to the amendments to Annexes II and III, the Commission may, by means of delegated acts in accordance with Article 51, amend the Annexes to this Regulation.
Article 47 Transitional period for and date of application of implementing measures or delegated acts
1. Without prejudice to paragraph 2 of this Article, in exercising the powers conferred by this Regulation to adopt measures by means of implementing acts in accordance with the examination procedure referred to in Article 48(2) or by means of delegated acts in accordance with Article 51 the Commission shall:
(a) establish an appropriate transitional period for application of the new measures, during which foods bearing labels not complying with the new measures may be placed on the market and after which stocks of such foods that have been placed on the market before the end of the transitional period may continue to be sold until exhausted; and
(b) ensure that those measures apply as from 1 April in any calendar year.
(1) OJ L 204, 21.7.1998, p. 37. 2. Paragraph 1 shall not apply in cases of urgency where the purpose of the measures referred to in that paragraph is the protection of human health.
Article 48
Committee
1. The Commission shall be assisted by the Standing Committee on the Food Chain and Animal Health established by Article 58(1) of Regulation (EC) No 178/2002. That Committee is a committee within the meaning of Regulation (EU) No 182/2011.
2. Where reference is made to this paragraph, Article 5 of Regulation (EU) No 182/2011 shall apply.
Where the Committee delivers no opinion, the Commission shall not adopt the draft implementing act and the third subparagraph of Article 5(4) of Regulation (EU) No 182/2011 shall apply.
Article 49
Amendments to Regulation (EC) No 1924/2006
The first and second paragraphs of Article 7 of Regulation (EC) No 1924/2006 are replaced by the following:
‘Nutrition labelling of products on which a nutrition and/or health claim is made shall be mandatory, with the exception of generic advertising. The information to be provided shall consist of that specified in Article 30(1) of Regulation (EU) No 1169/2011 of the European Parliament and of the Council of 25 October 2011 on the provision of food information to consumers (\*). Where a nutrition and/or health claim is made for a nutrient referred to in Article 30(2) of Regulation (EU) No 1169/2011 the amount of that nutrient shall be declared in accordance with Articles 31 to 34 of that Regulation.
The amount(s) of the substance(s) to which a nutrition or health claim relates that does not appear in the nutrition labelling shall be stated in the same field of vision as the nutrition labelling and be expressed in accordance with Articles 31, 32 and 33 of Regulation (EU) No 1169/2011. The units of measurement used to express the amount of the substance shall be appropriate for the individual substances concerned.
(\*) OJ L 304, 22.11.2011, p. 18’.
Article 50
Amendments to Regulation (EC) No 1925/2006
Paragraph 3 of Article 7 of Regulation (EC) No 1925/2006 is replaced by the following:
‘3. Nutrition labelling of products to which vitamins and minerals have been added and which are covered by this Regulation shall be compulsory. The information to be provided shall consist of that specified in Article 30(1) of Regulation (EU) No 1169/2011 of the European Parliament and of the Council of 25 October 2011 on the provision of food information to consumers (\*) and of the total amounts present of the vitamins and minerals when added to the food.
(\*) OJ L 304, 22.11.2011, p. 18.
Article 51
Exercise of the delegation
1. The power to adopt delegated acts is conferred on the Commission subject to the conditions laid down in this Article.
2. The power to adopt delegated acts referred to in Article 9(3), Article 10(2), Article 12(3), Article 13(4), Article 18(5), Article 19(2), Article 21(2), Article 23(2), Article 30(6), Article 31(2), Article 36(4) and Article 46 shall be conferred on the Commission for a period of 5 years after 12 December 2011. The Commission shall draw up a report in respect of the delegation of power not later than 9 months before the end of the 5-year period. The delegation of power shall be tacitly extended for periods of an identical duration, unless the European Parliament or the Council opposes such extension not later than 3 months before the end of each period.
3. The delegation of power referred to in Article 9(3), Article 10(2), Article 12(3), Article 13(4), Article 18(5), Article 19(2), Article 21(2), Article 23(2), Article 30(6), Article 31(2), Article 36(4) and Article 46 may be revoked at any time by the European Parliament or by the Council. A decision to revoke shall put an end to the delegation of the power specified in that decision. It shall take effect the day following the publication of the decision in the Official Journal of the European Union or on a later date specified therein. It shall not affect the validity of any delegated acts already in force.
4. As soon as it adopts a delegated act, the Commission shall notify it simultaneously to the European Parliament and to the Council.
5. A delegated act adopted pursuant to Article 9(3), Article 10(2), Article 12(3), Article 13(4), Article 18(5), Article 19(2), Article 21(2), Article 23(2), Article 30(6), Article 31(2), Article 36(4) and Article 46 shall enter into force only if no objection has been expressed either by the European Parliament or the Council within a period of 2 months of notification of that act to the European Parliament and the Council or if, before the expiry of that period, the European Parliament and the Council have both informed the Commission that they will not object. That period shall be extended by 2 months at the initiative of the European Parliament or of the Council. Article 52
Urgency procedure
1. Delegated acts adopted under this Article shall enter into force without delay and shall apply as long as no objection is expressed in accordance with paragraph 2. The notification of a delegated act to the European Parliament and to the Council shall state the reasons for the use of the urgency procedure.
2. Either the European Parliament or the Council may object to a delegated act in accordance with the procedure referred to in Article 51(5). In such a case, the Commission shall repeal the act without delay following the notification of the decision to object by the European Parliament or by the Council.
Article 53
Repeal
1. Directives 87/250/EEC, 90/496/EEC, 1999/10/EC, 2000/13/EC, 2002/67/EC and 2008/5/EC and Regulation (EC) No 608/2004 are repealed as from 13 December 2014.
2. References to the repealed acts shall be construed as references to this Regulation.
Article 54
Transitional measures
1. Foods placed on the market or labelled prior to 13 December 2014 which do not comply with the requirements of this Regulation may be marketed until the stocks of the foods are exhausted.
Foods placed on the market or labelled prior to 13 December 2016 which do not comply with the requirement laid down in point (l) of Article 9(1) may be marketed until the stocks of the foods are exhausted.
Foods placed on the market or labelled prior to 1 January 2014 which do not comply with the requirements laid down in Part B of Annex VI may be marketed until the stocks of the foods are exhausted.
2. Between 13 December 2014 and 13 December 2016, where the nutrition declaration is provided on a voluntary basis, it shall comply with Articles 30 to 35.
3. Notwithstanding Directive 90/496/EEC, Article 7 of Regulation (EC) No 1924/2006 and Article 7(3) of Regulation (EC) No 1925/2006, foods labelled in accordance with Articles 30 to 35 of this Regulation may be placed on the market before 13 December 2014. Notwithstanding Commission Regulation (EC) No 1162/2009 of 30 November 2009 laying down transitional measures for the implementation of Regulations (EC) No 853/2004, (EC) No 854/2004 and (EC) No 882/2004 of the European Parliament and of the Council (1), foods labelled in accordance with Part B of Annex VI to this Regulation may be placed on the market before 1 January 2014.
Article 55
Entry into force and date of application
This Regulation shall enter into force on the 20th day following its publication in the Official Journal of the European Union.
It shall apply from 13 December 2014, with the exception of point (l) of Article 9(1), which shall apply from 13 December 2016, and Part B of Annex VI, which shall apply from 1 January 2014.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
(1) OJ L 314, 1.12.2009, p. 10. ANNEX I
SPECIFIC DEFINITIONS
As referred to in Article 2(4)
01. ‘nutrition declaration’ or ‘nutrition labelling’ means information stating the: (a) energy value; or (b) energy value and one or more of the following nutrients only: — fat (saturates, mono-unsaturates, polyunsaturates), — carbohydrate (sugars, polyols, starch), — salt, — fibre, — protein, — any of the vitamins or minerals listed in point 1 of Part A of Annex XIII, and present in significant amounts as defined in point 2 of Part A of Annex XIII,
02. ‘fat’ means total lipids, and includes phospholipids;
03. ‘saturates’ means fatty acids without double bond;
04. ‘trans fat’ means fatty acids with at least one non-conjugated (namely interrupted by at least one methylene group) carbon-carbon double bond in the trans configuration;
05. ‘mono-unsaturates’ means fatty acids with one cis double bond;
06. ‘polyunsaturates’ means fatty acids with two or more cis, cis-methylene interrupted double bonds;
07. ‘carbohydrate’ means any carbohydrate which is metabolised by humans, and includes polyols;
08. ‘sugars’ means all monosaccharides and disaccharides present in food, but excludes polyols;
09. ‘polyols’ means alcohols containing more than two hydroxyl groups;
10. ‘protein’ means the protein content calculated using the formula: protein = total Kjeldahl nitrogen × 6,25;
11. ‘salt’ means the salt equivalent content calculated using the formula: salt = sodium × 2,5;
12. ‘fibre’ means carbohydrate polymers with three or more monomeric units, which are neither digested nor absorbed in the human small intestine and belong to the following categories: — edible carbohydrate polymers naturally occurring in the food as consumed, — edible carbohydrate polymers which have been obtained from food raw material by physical, enzymatic or chemical means and which have a beneficial physiological effect demonstrated by generally accepted scientific evidence, — edible synthetic carbohydrate polymers which have a beneficial physiological effect demonstrated by generally accepted scientific evidence,
13. ‘average value’ means the value which best represents the amount of the nutrient which a given food contains, and reflects allowances for seasonal variability, patterns of consumption and other factors which may cause the actual value to vary. ANNEX II
SUBSTANCES OR PRODUCTS CAUSING ALLERGIES OR INTOLERANCES
M2
1. Cereals containing gluten, namely: wheat (such as spelt and khorasan wheat), rye, barley, oats or their hybridised strains, and products thereof, except:
▼
B
(a) wheat based glucose syrups including dextrose (1); (b) wheat based maltodextrins (1); (c) glucose syrups based on barley; (d) cereals used for making alcoholic distillates including ethyl alcohol of agricultural origin;
2. Crustaceans and products thereof;
3. Eggs and products thereof;
4. Fish and products thereof, except:
(a) fish gelatine used as carrier for vitamin or carotenoid preparations; (b) fish gelatine or Isinglass used as fining agent in beer and wine;
5. Peanuts and products thereof;
6. Soybeans and products thereof, except:
(a) fully refined soybean oil and fat (1); (b) natural mixed tocopherols (E306), natural D-alpha tocopherol, natural D-alpha tocopherol acetate, and natural D-alpha tocopherol succinate from soybean sources; (c) vegetable oils derived phytosterols and phytosterol esters from soybean sources; (d) plant stanol ester produced from vegetable oil sterols from soybean sources;
7. Milk and products thereof (including lactose), except:
(a) whey used for making alcoholic distillates including ethyl alcohol of agricultural origin; (b) lactitol;
8. Nuts, namely: almonds (Amygdalus communis L.), hazelnuts (Corylus avellana), walnuts (Juglans regia), cashews (Anacardium occidentale), pecan nuts (Carya illinoinsis (Wangenh.) K. Koch), Brazil nuts (Bertholletia excelsa), pistachio nuts (Pistacia vera), macadamia or Queensland nuts (Macadamia ternifolia), and products thereof, except for nuts used for making alcoholic distillates including ethyl alcohol of agricultural origin;
9. Celery and products thereof;
(1) And the products thereof, in so far as the process that they have undergone is not likely to increase the level of allergenicity assessed by the Authority for the relevant product from which they originated. 10. Mustard and products thereof; 11. Sesame seeds and products thereof; 12. Sulphur dioxide and sulphites at concentrations of more than 10 mg/kg or 10 mg/litre in terms of the total SO₂ which are to be calculated for products as proposed ready for consumption or as reconstituted according to the instructions of the manufacturers; 13. Lupin and products thereof; 14. Molluscs and products thereof.
### ANNEX III
**FOODS FOR WHICH THE LABELLING MUST INCLUDE ONE OR MORE ADDITIONAL PARTICULARS**
| TYPE OR CATEGORY OF FOOD | PARTICULARS | |--------------------------|-------------| | 1. Foods packaged in certain gases | 'packaged in a protective atmosphere'. | | 1.1. Foods whose durability has been extended by means of packaging gases authorised pursuant to Regulation (EC) No 1333/2008. | | | 2. Foods containing sweeteners | 'with sweetener(s)’ this statement shall accompany the name of the food. | | 2.1. Foods containing a sweetener or sweeteners authorised pursuant to Regulation (EC) No 1333/2008. | | | 2.2. Foods containing both an added sugar or sugars and a sweetener or sweeteners authorised pursuant to Regulation (EC) No 1333/2008. | 'with sugar(s) and sweetener(s)’ this statement shall accompany the name of the food. | | 2.3. Foods containing aspartame/aspartame-acesulfame salt authorised pursuant to Regulation EC) No 1333/2008. | 'contains aspartame (a source of phenylalanine)’ shall appear on the label in cases where aspartame/aspartame-acesulfame salt is designated in the list of ingredients only by reference to the E number. 'contains a source of phenylalanine’ shall appear on the label in cases where aspartame/aspartame-acesulfame salt is designated in the list of ingredients by its specific name. | | 2.4. Foods containing more than 10 % added polyols authorised pursuant to Regulation (EC) No 1333/2008. | 'excessive consumption may produce laxative effects’. | | 3. Foods containing glycyrrhizinic acid or its ammonium salt | 'contains liquorice’ shall be added immediately after the list of ingredients, unless the term ‘liquorice’ is already included in the list of ingredients or in the name of the food. In the absence of a list of ingredients, the statement shall accompany the name of the food. | | 3.1. Confectionery or beverages containing glycyrrhizinic acid or its ammonium salt due to the addition of the substance(s) as such or the liquorice plant Glycyrrhiza glabra, at concentration of 100 mg/kg or 10 mg/l or above. | 'contains liquorice – people suffering from hypertension should avoid excessive consumption’ shall be added immediately after the list of ingredients. In the absence of a list of ingredients, the statement shall accompany the name of the food. | | 3.2. Confectionary containing glycyrrhizinic acid or its ammonium salt due to the addition of the substance(s) as such or the liquorice plant Glycyrrhiza glabra at concentrations of 4 g/kg or above. | |
### TYPE OR CATEGORY OF FOOD
| PARTICULARS | |-------------| | 3.3. Beverages containing glycyrrhizinic acid or its ammonium salt due to the addition of the substance(s) as such or the liquorice plant *Glycyrrhiza glabra* at concentrations of 50 mg/l or above, or of 300 mg/l or above in the case of beverages containing more than 1.2 % by volume of alcohol (1). |
'contains liquorice – people suffering from hypertension should avoid excessive consumption’ shall be added immediately after the list of ingredients. In the absence of a list of ingredients, the statement shall accompany the name of the food.
### 4. Beverages with high caffeine content or foods with added caffeine
| PARTICULARS | |-------------| | 4.1. Beverages, with the exception of those based on coffee, tea or coffee or tea extract where the name of the food includes the term ‘coffee’ or ‘tea’, which: | | — are intended for consumption without modification and contain caffeine, from whatever source, in a proportion in excess of 150 mg/l, or, | | — are in concentrated or dried form and after reconstitution contain caffeine, from whatever source, in a proportion in excess of 150 mg/l, |
‘High caffeine content. Not recommended for children or pregnant or breast-feeding women’ in the same field of vision as the name of the beverage, followed by a reference in brackets and in accordance with Article 13(1) of this Regulation to the caffeine content expressed in mg per 100 ml.
| PARTICULARS | |-------------| | 4.2. Foods other than beverages, where caffeine is added with a physiological purpose. |
‘Contains caffeine. Not recommended for children or pregnant women’ in the same field of vision as the name of the food, followed by a reference in brackets and in accordance with Article 13(1) of this Regulation to the caffeine content expressed in mg per 100 g/ml. In the case of food supplements, the caffeine content shall be expressed per portion as recommended for daily consumption on the labelling.
### 5. Foods with added phytosterols, phytosterol esters, phytostanols or phytostanol esters
| PARTICULARS | |-------------| | 5.1. Foods or food ingredients with added phytosterols, phytosterol esters, phytostanols or phytostanol esters. |
(1) ‘with added plant sterols’ or ‘with added plant stanols’ in the same field of vision as the name of the food;
(2) the amount of added phytosterols, phytosterol esters, phytostanols or phytostanol esters content (expressed in % or as g of free plant sterols/plant stanols per 100 g or 100 ml of the food) shall be stated in the list of ingredients;
(3) a statement that the product is not intended for people who do not need to control their blood cholesterol level; | TYPE OR CATEGORY OF FOOD | PARTICULARS | |--------------------------|-------------| | (4) a statement that patients on cholesterol lowering medication should only consume the product under medical supervision; | | (5) an easily visible statement that the food may not be nutritionally appropriate for pregnant or breastfeeding women and children under the age of 5 years; | | (6) advice that the food is to be used as part of a balanced and varied diet, including regular consumption of fruit and vegetables to help maintain carotenoid levels; | | (7) in the same field of vision as the statement required under point (3) above, a statement that the consumption of more than 3 g/day of added plant sterols/plant stanols should be avoided; | | (8) a definition of a portion of the food or food ingredient concerned (preferably in g or ml) with the amount of the plant sterol/plant stanol that each portion contains. |
6. Frozen meat, frozen meat preparations and frozen unprocessed fishery products
6.1. Frozen meat, frozen meat preparations and frozen unprocessed fishery products. the date of freezing or the date of first freezing in cases where the product has been frozen more than once, in accordance with point (3) of Annex X.
(1) The level shall apply to the products as proposed ready for consumption or as reconstituted according to the instructions of the manufacturers. ANNEX IV
DEFINITION OF x-HEIGHT
x-HEIGHT
Legend
| | | |---|---| | 1 | Ascender line | | 2 | Cap line | | 3 | Mean line | | 4 | Baseline | | 5 | Descender line | | 6 | x-height | | 7 | Font size | ANNEX V
FOODS WHICH ARE EXEMPTED FROM THE REQUIREMENT OF THE MANDATORY NUTRITION DECLARATION
01. Unprocessed products that comprise a single ingredient or category of ingredients;
02. Processed products which the only processing they have been subjected to is maturing and that comprise a single ingredient or category of ingredients;
03. Waters intended for human consumption, including those where the only added ingredients are carbon dioxide and/or flavourings;
04. A herb, a spice or mixtures thereof;
05. Salt and salt substitutes;
06. Table top sweeteners;
07. Products covered by Directive 1999/4/EC of the European Parliament and of the Council of 22 February 1999 relating to coffee extracts and chicory extracts (1), whole or milled coffee beans and whole or milled decaffeinated coffee beans;
08. Herbal and fruit infusions, tea, decaffeinated tea, instant or soluble tea or tea extract, decaffeinated instant or soluble tea or tea extract, which do not contain other added ingredients than flavourings which do not modify the nutritional value of the tea;
09. Fermented vinegars and substitutes for vinegar, including those where the only added ingredients are flavourings;
10. Flavourings;
11. Food additives;
12. Processing aids;
13. Food enzymes;
14. Gelatine;
15. Jam setting compounds;
16. Yeast;
17. Chewing-gums;
18. Food in packaging or containers the largest surface of which has an area of less than 25 cm²;
19. Food, including handcrafted food, directly supplied by the manufacturer of small quantities of products to the final consumer or to local retail establishments directly supplying the final consumer.
(1) OJ L 66, 13.3.1999, p. 26. ANNEX VI
NAME OF THE FOOD AND SPECIFIC ACCOMPANYING PARTICULARS
PART A — MANDATORY PARTICULARS ACCOMPANYING THE NAME OF THE FOOD
1. The name of the food shall include or be accompanied by particulars as to the physical condition of the food or the specific treatment which it has undergone (for example, powdered, refrozen, freeze-dried, quick-frozen, concentrated, smoked) in all cases where omission of such information could mislead the purchaser.
2. In the case of foods that have been frozen before sale and which are sold defrosted, the name of the food shall be accompanied by the designation ‘defrosted’.
This requirement shall not apply to the following:
(a) ingredients present in the final product;
(b) foods for which freezing is a technologically necessary step of the production process;
(c) foods for which the defrosting has no negative impact on the safety or quality of the food.
This point shall apply without prejudice to point 1.
3. Foods treated with ionising radiation shall bear one of the following indications:
‘irradiated’ or ‘treated with ionising radiation’, and other indications as stated in Directive 1999/2/EC of the European Parliament and of the Council of 22 February 1999 on the approximation of the laws of the Member States concerning foods and food ingredients treated with ionising radiation (1).
4. In the case of foods in which a component or ingredient that consumers expect to be normally used or naturally present has been substituted with a different component or ingredient, the labelling shall bear — in addition to the list of ingredients — a clear indication of the component or the ingredient that has been used for the partial or whole substitution:
(a) in close proximity to the name of the product; and
(b) using a font size which has an x-height of at least 75 % of the x-height of the name of the product and which is not smaller than the minimum font size required in Article 13(2) of this Regulation.
5. In the case of meat products, meat preparations and fishery products containing added proteins as such, including hydrolysed proteins, of a different animal origin, the name of the food shall bear an indication of the presence of those proteins and of their origin.
6. In the case of meat products and meat preparations which have the appearance of a cut, joint, slice, portion or carcase of meat, the name of the food shall include an indication of the presence of added water if the added water makes up more than 5 % of the weight of the finished product. The same rules shall apply in the case of fishery products and prepared fishery products which have the appearance of a cut, joint, slice, portion, filet or of a whole fishery product.
(1) OJ L 66, 13.3.1999, p. 16. 7. Meat products, meat preparations and fishery products which may give the impression that they are made of a whole piece of meat or fish, but actually consist of different pieces combined together by other ingredients, including food additives and food enzymes or by other means, shall bear the following indication:
in Bulgarian: ‘формовано месо’ and ‘формована риба’;
in Spanish: ‘elaborado a partir de piezas de carne’ and ‘elaborado a partir de piezas de pescado’;
in Czech: ‘ze spojovaných kousků masa’ and ‘ze spojovaných kousků rybího masa’;
in Danish: ‘Sammensat af stykker af kød’ and ‘Sammensat af stykker af fisk’;
in German: ‘aus Fleischstücken zusammengefügt’ and ‘aus Fischstücken zusammengefügt’;
in Estonian: ‘liidetud liha’ and ‘liidetud kala’;
in Greek: ‘μορφοποιημένο κρέας’ and ‘μορφοποιημένο ψάρι’;
in English: ‘formed meat’ and ‘formed fish’;
in French: ‘viande reconstituée’ and ‘poisson reconstitué’;
in Irish: ‘píosaí feola ceangailte’ and ‘píosaí éisc ceangailte’;
in Italian: ‘carne ricomposta’ and ‘pesce ricomposto’;
in Latvian: ‘formēta gaļa’ and ‘formēta zīvs’;
in Lithuanian: ‘sudarytas (-a) iš mėsos gabalų’ and ‘sudarytas (-a) iš žuvies gabalų’;
in Hungarian: ‘darabokból újraformázott hús’ and ‘darabokból újraformázott hal’;
in Maltese: ‘laham rikostitwit’ and ‘hut rikostitwit’;
in Dutch: ‘samengesteld uit stukjes vlees’ and ‘samengesteld uit stukjes vis’;
in Polish: ‘z połączonych kawalków mięsa’ and ‘z połączonych kawalków ryby’;
in Portuguese: ‘carne reconstituída’ and ‘peixe reconstituído’;
in Romanian: ‘carne formată’ and ‘carne de pește formată’;
in Slovak: ‘zo spájaných kúskov mása’ and ‘zo spájaných kúskov ryby’;
in Slovenian: ‘sestavljeno, iz koščkov oblikovano meso’ and ‘sestavljene, iz koščkov oblikovane ribe’;
in Finnish: ‘paloista yhdistetty liha’ and ‘paloista yhdistetty kala’;
in Swedish: ‘sammanfogade bitar av kött’ and ‘sammanfogade bitar av fisk’. PART B — SPECIFIC REQUIREMENTS CONCERNING THE DESIGNATION OF ‘MINCED MEAT’
1. Composition criteria checked on the basis of a daily average:
| | Fat content | Collagen/meat protein ratio (1) | |------------------------|-------------|---------------------------------| | — lean minced meat, | ≤ 7 % | ≤ 12 % | | — minced pure beef, | ≤ 20 % | ≤ 15 % | | — minced meat containing pigmeat, | ≤ 30 % | ≤ 18 % | | — minced meat of other species, | ≤ 25 % | ≤ 15 % |
(1) The collagen/meat protein ratio is expressed as the percentage of collagen in meat protein. The collagen content means the hydroxyproline content multiplied by a factor of 8.
2. In addition to the requirements laid down in Chapter IV of Section V of Annex III to Regulation (EC) No 853/2004, the following expressions shall appear on the labelling: — ‘percentage of fat content under …’, — ‘collagen/meat protein ratio under …’,
3. The Member States may allow the placing on their national market of minced meat which does not comply with the criteria laid down in point 1 of this Part under a national mark that cannot be confused with the marks provided for in Article 5(1) of Regulation (EC) No 853/2004.
PART C — SPECIFIC REQUIREMENTS CONCERNING THE DESIGNATION OF SAUSAGE CASINGS
If a sausage casing is not edible, this must be indicated.
### ANNEX VII
**INDICATION AND DESIGNATION OF INGREDIENTS**
**PART A — SPECIFIC PROVISIONS CONCERNING THE INDICATION OF INGREDIENTS BY DESCENDING ORDER OF WEIGHT**
| Category of ingredient | Provision concerning indication by weight | |------------------------|------------------------------------------| | 1. Added water and volatile products | Shall be listed in order of their weight in the finished product. The amount of water added as an ingredient in a food shall be calculated by deducting from the total amount of the finished product the total amount of the other ingredients used. This amount shall not be required to be taken into consideration if it does not exceed 5% by weight of the finished product. This derogation does not apply to meat, meat preparations, unprocessed fishery products and unprocessed bivalve molluscs | | 2. Ingredients used in concentrated or dehydrated form and reconstituted at the time of manufacture | May be listed in order of weight as recorded before their concentration or dehydration | | 3. Ingredients used in concentrated or dehydrated foods, which are intended to be reconstituted by the addition of water | May be listed in order of proportion in the reconstituted product provided that the list of ingredients is accompanied by an expression, such as ‘ingredients of the reconstituted product’, or ‘ingredients of the ready-to-use product’ | | 4. Fruit, vegetables or mushrooms, none of which significantly predominates in terms of weight and which are used in proportions that are likely to vary, used in a mixture as ingredients of a food | May be grouped together in the list of ingredients under the designation ‘fruit’, ‘vegetables’ or ‘mushrooms’ followed by the phrase ‘in varying proportions’, immediately followed by a list of the fruit, vegetables or mushrooms present. In such cases, the mixture shall be included in the list of ingredients in accordance with Article 18(1), on the basis of the total weight of the fruit, vegetables or mushrooms present | | 5. Mixtures of spices or herbs, where none significantly predominates in proportion by weight | May be listed in different order provided that that list of ingredients is accompanied by an expression such as ‘in variable proportion’ | | 6. Ingredients constituting less than 2% of the finished product | May be listed in a different order after the other ingredients |
### Category of ingredient
| Provision concerning indication by weight | |------------------------------------------| | 7. Ingredients, which are similar or mutually substitutable, likely to be used in the manufacture or preparation of a food without altering its composition, its nature or its perceived value, and in so far as they constitute less than 2% of the finished product. May be referred to in the list of ingredients by means of the statement ‘contains … and/or …’, where at least one of no more than two ingredients is present in the finished product. This provision shall not apply to food additives or to ingredients listed in Part C of this Annex, and to substances or products listed in Annex II causing allergies or intolerances. | | 8. Refined oils of vegetable origin | | May be grouped together in the list of ingredients under the designation ‘vegetable oils’ followed immediately by a list of indications of specific vegetable origin, and may be followed by the phrase ‘in varying proportions’. If grouped together, vegetable oils shall be included in the list of ingredients in accordance with Article 18(1), on the basis of the total weight of the vegetable oils present. The expression ‘fully hydrogenated’ or ‘partly hydrogenated’, as appropriate, must accompany the indication of a hydrogenated oil. | | 9. Refined fats of vegetable origin | | May be grouped together in the list of ingredients under the designation ‘vegetable fats’ followed immediately by a list of indications of specific vegetable origin, and may be followed by the phrase ‘in varying proportions’. If grouped together, vegetable fats shall be included in the list of ingredients in accordance with Article 18(1), on the basis of the total weight of the vegetable fats present. The expression ‘fully hydrogenated’ or ‘partly hydrogenated’, as appropriate, must accompany the indication of a hydrogenated fat. |
### PART B — DESIGNATION OF CERTAIN INGREDIENTS BY THE NAME OF A CATEGORY RATHER THAN A SPECIFIC NAME
Without prejudice to Article 21, ingredients which belong to one of the categories of foods listed below and are constituents of another food may be designated by the name of that category rather than the specific name.
| Definition of category of food | Designation | |-------------------------------|-------------| | 1. Refined oils of animal origin | ‘Oil’, together with either the adjective ‘animal’, or the indication of specific animal origin. The expression ‘fully hydrogenated’ or ‘partly hydrogenated’, as appropriate, must accompany the indication of a hydrogenated oil. | | Definition of category of food | Designation | |-----------------------------------------------------------------------------------------------|-----------------------------------------------------------------------------| | 2. Refined fats of animal origin | ‘Fat’, together with either the adjective ‘animal’ or the indication of specific animal origin. The expression ‘fully hydrogenated’ or ‘partly hydrogenated’, as appropriate, must accompany the indication of a hydrogenated fat | | 3. Mixtures of flour obtained from two or more cereal species | ‘Flour’, followed by a list of the cereals from which it has been obtained, in descending order by weight | | 4. Starches, and starches modified by physical means or by enzymes | ‘Starch’ | | 5. All species of fish where the fish constitutes an ingredient of another food and provided that the name and presentation of such food does not refer to a specific species of fish | ‘Fish’ | | 6. All types of cheese where the cheese or mixture of cheeses constitutes an ingredient of another food and provided that the name and presentation of such food does not refer to a specific type of cheese | ‘Cheese’ | | 7. All spices not exceeding 2 % by weight of the food | ‘Spice(s)’ or ‘mixed spices’ | | 8. All herbs or parts of herbs not exceeding 2 % by weight of the food | ‘Herb(s)’ or ‘mixed herbs’ | | 9. All types of gum preparations used in the manufacture of gum base for chewing gum | ‘Gum base’ | | 10. All types of crumbed baked cereal products | ‘Crumbs’ or ‘rusks’ as appropriate | | 11. All types of sucrose | ‘Sugar’ | | 12. Anhydrous dextrose or dextrose monohydrate | ‘Dextrose’ | | 13. Glucose syrup and anhydrous glucose syrup | ‘Glucose syrup’ | | 14. All types of milk protein (caseins, caseinates and whey proteins) and mixtures thereof | ‘Milk proteins’ | | 15. Press, expeller or refined cocoa butter | ‘Cocoa butter’ | | 16. All types of wine as covered by Annex XIb to Regulation (EC) No 1234/2007 (1) | ‘Wine’ | 17. Skeletal muscles (2) of mammalian and bird species recognised as fit for human consumption with naturally included or adherent tissue, where the total fat and connective tissue content does not exceed the values indicated below and where the meat constitutes an ingredient of another food.
Maximum fat and connective tissue contents for ingredients designated by the term ‘… meat’
| Species | Fat content | Collagen/meat protein ratio (1) | |---------|-------------|---------------------------------| | — Mammals (other than rabbits and porcines) and mixtures of species with mammals predominating, | 25 % | 25 % | | — Porcines, | 30 % | 25 % | | — Birds and rabbits, | 15 % | 10 % |
(1) The collagen/meat protein ratio is expressed as the percentage of collagen in meat protein. The collagen content means the hydroxyproline content multiplied by a factor of 8.
If these maximum limits are exceeded, but all other criteria for the definition of ‘meat’ are satisfied, the ‘… meat’ content must be adjusted downwards accordingly and the list of ingredients must mention, in addition to the term ‘… meat’, the presence of fat and/or connective tissue. The products covered by the definition of ‘mechanically separated meat’ are excluded from this definition.
18. All types of products covered by the definition of ‘mechanically separated meat’ and the name(s) (3) of the animal species from which it comes
(1) Council Regulation (EC) No 1234/2007 of 22 October 2007 establishing a common organisation of agricultural markets and on specific provisions for certain agricultural products (Single CMO Regulation) (OJ L 299, 16.11.2007, p. 1).
(2) The diaphragm and the masseters are part of the skeletal muscles, while the heart, tongue, the muscles of the head (other than the masseters), the muscles of the carpus, the tarsus and the tail are excluded.
(3) For labelling in English, this designation may be replaced by the generic name of the ingredient for the animal species concerned. PART C — DESIGNATION OF CERTAIN INGREDIENTS BY THE NAME OF THEIR CATEGORY FOLLOWED BY THEIR SPECIFIC NAME OR E NUMBER
Without prejudice to Article 21, food additives and food enzymes other than those specified in point (b) of Article 20 belonging to one of the categories listed in this Part must be designated by the name of that category, followed by their specific name or, if appropriate, E number. If an ingredient belongs to more than one of the categories, the category appropriate to the principal function in the case of the food in question shall be indicated.
| Acid | Foaming agent | |------|---------------| | Acidity regulator | Gelling agent | | Anti-caking agent | Glazing agent | | Anti-foaming agent | Humectant | | Antioxidant | Modified starch (2) | | Bulking agent | Preservative | | Colour | Propellant gas | | Emulsifier | Raising agent | | Emulsifying salts (1) | Sequestrant | | Firming agent | Stabiliser | | Flavour enhancer | Sweetener | | Flour treatment agent | Thickener |
(1) Only for processed cheeses and products based on processed cheeses. (2) The specific name or E number shall not be required to be indicated.
PART D — DESIGNATION OF FLAVOURINGS IN THE LIST OF INGREDIENTS
1. Flavourings shall be designated either by the terms:
— ‘flavouring(s)’ or by a more specific name or description of the flavouring if the flavouring component contains flavourings as defined in points (b), (c), (d), (e), (f), (g) and (h) of Article 3(2) of Regulation (EC) No 1334/2008,
— ‘smoke flavouring(s)’, or ‘smoke flavouring(s) produced from food(s) or food category or source(s)’ (e.g. ‘smoke flavouring produced from beech’), if the flavouring component contains flavourings as defined in point (f) of Article 3(2) of Regulation (EC) No 1334/2008 and imparts a smoky flavour to the food.
2. The term ‘natural’ for the description of flavourings shall be used in accordance with Article 16 of Regulation (EC) No 1334/2008.
3. Quinine and/or caffeine used as a flavouring in the production or preparation of a food shall be mentioned by name in the list of ingredients immediately after the term ‘flavouring(s)’.
PART E — DESIGNATION OF COMPOUND INGREDIENTS
1. A compound ingredient may be included in the list of ingredients, under its own designation in so far as this is laid down by law or established by custom, in terms of its overall weight, and immediately followed by a list of its ingredients.
2. Without prejudice to Article 21, the list of ingredients for compound ingredients shall not be compulsory: (a) where the composition of the compound ingredient is defined in current Union provisions, and in so far as the compound ingredient constitutes less than 2% of the finished product; however, this provision shall not apply to food additives, subject to points (a) to (d) of Article 20;
(b) for compound ingredients consisting of mixtures of spices and/or herbs that constitute less than 2% of the finished product, with the exception of food additives, subject to points (a) to (d) of Article 20; or
(c) where the compound ingredient is a food for which a list of ingredients is not required under Union provisions. ANNEX VIII
QUANTITATIVE INDICATION OF INGREDIENTS
1. The quantitative indication shall not be required:
(a) in respect of an ingredient or category of ingredients:
(i) the drained net weight of which is indicated in accordance with point 5 of Annex IX;
(ii) the quantities of which must already appear on the labelling under Union provisions;
(iii) which is used in small quantities for the purposes of flavouring; or
(iv) which, while appearing in the name of the food, is not such as to govern the choice of the consumer in the country of marketing because the variation in quantity is not essential to characterise the food or does not distinguish it from similar foods;
(b) where specific Union provisions stipulate precisely the quantity of an ingredient or of a category of ingredients without providing for the indication thereof on the labelling; or
(c) in the cases referred to in points 4 and 5 of Part A of Annex VII.
2. Points (a) and (b) of Article 22(1) shall not apply in the case of:
(a) any ingredient or category of ingredients covered by the indication ‘with sweetener(s)’ or ‘with sugar(s) and sweetener(s)’ if that indication accompanies the name of the food, pursuant Annex III; or
(b) any added vitamin and mineral if that substance is subject to a nutrition declaration.
3. The indication of quantity of an ingredient or category of ingredients shall:
(a) be expressed as a percentage, which shall correspond to the quantity of the ingredient or ingredients at the time of its/their use; and
(b) appear either in or immediately next to the name of the food or in the list of ingredients in connection with the ingredient or category of ingredients in question.
4. By way of derogation from point 3:
(a) where foods have lost moisture following heat treatment or other treatment, the quantity shall be expressed as a percentage which shall correspond to the quantity of the ingredient(s) used, related to the finished product, unless that quantity or the total quantity of all the ingredients indicated on the labelling exceeds 100 %, in which case the quantity shall be indicated on the basis of the weight of the ingredient(s) used to prepare 100 g of finished product;
(b) the quantity of volatile ingredients shall be indicated on the basis of their proportion by weight in the finished product;
(c) the quantity of ingredients used in concentrated or dehydrated form and reconstituted during manufacture may be indicated on the basis of their proportion by weight as recorded before their concentration or dehydration;
(d) in the case of concentrated or dehydrated foods which are intended to be reconstituted by the addition of water, the quantity of the ingredients may be indicated on the basis of their proportion by weight in the reconstituted product. ANNEX IX
NET QUANTITY DECLARATION
1. The net quantity declaration shall not be mandatory in the case of foods:
(a) which are subject to considerable losses in their volume or mass and which are sold by number or weighed in the presence of the purchaser;
(b) the net quantity of which is less than 5 g or 5 ml; however, this provision shall not apply to spices and herbs; or
(c) normally sold by number, provided that the number of items can clearly be seen and easily counted from the outside or, if not, is indicated on the labelling.
2. Where the indication of a certain type of quantity (such as the nominal quantity, minimum quantity, or average quantity) is required by Union provisions or, where there are none, by national provisions, this quantity shall be regarded as the net quantity for the purposes of this Regulation.
3. Where a prepacked item consists of two or more individual prepacked items containing the same quantity of the same product, the net quantity shall be indicated by mentioning the net quantity contained in each individual package and the total number of such packages. The indication of those particulars shall not, however, be mandatory where the total number of individual packages can be clearly seen and easily counted from the outside and where at least one indication of the net quantity contained in each individual package can be clearly seen from the outside.
4. Where a prepacked item consists of two or more individual packages which are not regarded as units of sale, the net quantity shall be given by indicating the total net quantity and the total number of individual packages.
5. Where a solid food is presented in a liquid medium, the drained net weight of the food shall also be indicated. Where the food has been glazed, the declared net weight of the food shall be exclusive of the glaze.
For the purposes of this point, ‘liquid medium’ shall mean the following products, possibly in mixtures and also where frozen or quick-frozen, provided that the liquid is merely an adjunct to the essential elements of that preparation and is thus not a decisive factor for the purchase: water, aqueous solutions of salts, brine, aqueous solutions of food acids, vinegar, aqueous solutions of sugars, aqueous solutions of other sweetening substances, fruit or vegetable juices in the case of fruit or vegetables. DATE OF MINIMUM DURABILITY, ‘USE BY’ DATE AND DATE OF FREEZING
1. The date of minimum durability shall be indicated as follows:
(a) the date shall be preceded by the words:
— ‘Best before …’ when the date includes an indication of the day,
— ‘Best before end …’ in other cases,
(b) the words referred to in point (a) shall be accompanied by:
— either the date itself, or,
— a reference to where the date is given on the labelling,
If need be, these particulars shall be followed by a description of the storage conditions which must be observed if the product is to keep for the specified period;
(c) the date shall consist of the day, the month and possibly, the year, in that order and in uncoded form.
However, in the case of foods:
— which will not keep for more than 3 months, an indication of the day and the month shall be sufficient,
— which will keep for more than 3 months but not more than 18 months, an indication of the month and year shall be sufficient,
— which will keep for more than 18 months, an indication of the year shall be sufficient,
(d) subject to Union provisions imposing other types of date indication, an indication of the date of minimum durability shall not be required for:
— fresh fruit and vegetables, including potatoes, which have not been peeled, cut or similarly treated; this derogation shall not apply to sprouting seeds and similar products such as legume sprouts,
— wines, liqueur wines, sparkling wines, aromatised wines, and similar products obtained from fruit other than grapes, and beverages falling within CN code 2206 00 obtained from grapes or grape musts,
— beverages containing 10 % or more by volume of alcohol,
— bakers’ or pastry cooks’ wares which, given the nature of their content, are normally consumed within 24 hours of their manufacture,
— vinegar,
— cooking salt,
— solid sugar, — confectionery products consisting almost solely of flavoured and/or coloured sugars,
— chewing gums and similar chewing products.
2. The ‘use by’ date shall be indicated as follows: (a) it shall be preceded by the words ‘use by …’; (b) the words in point (a) shall be accompanied by: — either the date itself, or, — a reference to where the date is given on the labelling, Those particulars shall be followed by a description of the storage conditions which must be observed; (c) the date shall consist of the day, the month and, possibly, the year, in that order and in uncoded form; (d) the ‘use by’ date shall be indicated on each individual prepacked portion.
3. The date of freezing or the date of first freezing as referred to in point 6 of Annex III shall be indicated as follows: (a) it shall be preceded by the words ‘Frozen on …’; (b) the words referred to in point (a) shall be accompanied by: — the date itself, or, — a reference to where the date is given on the labelling, (c) the date shall consist of the day, the month and the year, in that order and in uncoded form.
### TYPES OF MEAT FOR WHICH THE INDICATION OF THE COUNTRY OF ORIGIN OR PLACE OF PROVENANCE IS MANDATORY
| CN codes (Combined Nomenclature 2010) | Description | |---------------------------------------|-------------------------------------------------------| | 0203 | Meat of swine, fresh, chilled or frozen | | 0204 | Meat of sheep or goats, fresh, chilled or frozen | | Ex 0207 | Meat of the poultry of heading 0105, fresh, chilled or frozen | ANNEX XII
ALCOHOLIC STRENGTH
The actual alcoholic strength by volume of beverages containing more than 1,2 % by volume of alcohol shall be indicated by a figure to not more than one decimal place. It shall be followed by the symbol '% vol.' and may be preceded by the word 'alcohol' or the abbreviation 'alc'.
The alcoholic strength shall be determined at 20 °C.
Positive and negative allowed tolerances in respect of the indication of the alcoholic strength by volume and expressed in absolute values shall be as listed in the following table. They shall apply without prejudice to the tolerances deriving from the method of analysis used for determining the alcoholic strength.
| Description of beverage | Positive or negative tolerance | |----------------------------------------------------------------------------------------|-------------------------------| | 1. Beers of CN code 2203 00 having an alcoholic strength not exceeding 5,5 % vol.; still beverages falling within CN code 2206 00 obtained from grapes | 0,5 % vol. | | 2. Beers having an alcoholic strength exceeding 5,5 % vol.; sparkling beverages falling within CN code 2206 00 obtained from grapes, ciders, perries, fruit wines and the like, obtained from fruit other than grapes, whether or not semi-sparkling or sparkling; mead | 1 % vol. | | 3. Beverages containing macerated fruit or parts of plants | 1,5 % vol. | | 4. Any other beverages containing more than 1,2 % by volume of alcohol | 0,3 % vol. | ANNEX XIII
REFERENCE INTAKES
PART A — DAILY REFERENCE INTAKES FOR VITAMINS AND MINERALS (ADULTS)
1. Vitamins and minerals which may be declared and their nutrient reference values (NRVs)
| Vitamin/mineral | Reference intake | |-----------------|------------------| | Vitamin A (μg) | 800 | | Vitamin D (μg) | 5 | | Vitamin E (mg) | 12 | | Vitamin K (μg) | 75 | | Vitamin C (mg) | 80 | | Thiamin (mg) | 1,1 | | Riboflavin (mg) | 1,4 | | Niacin (mg) | 16 | | Vitamin B6 (mg) | 1,4 | | Folic acid (μg)| 200 | | Vitamin B12 (μg)| 2,5 | | Biotin (μg) | 50 | | Pantothenic acid (mg) | 6 | | Potassium (mg) | 2 000 | | Chloride (mg) | 800 | | Calcium (mg) | 800 | | Phosphorus (mg) | 700 | | Magnesium (mg) | 375 | | Iron (mg) | 14 | | Zinc (mg) | 10 | | Copper (mg) | 1 | | Manganese (mg) | 2 | | Fluoride (mg) | 3,5 | | Selenium (μg) | 55 | | Chromium (μg) | 40 | | Molybdenum (μg) | 50 | | Iodine (μg) | 150 |
2. Significant amount of vitamins and minerals
As a rule, the following values should be taken into consideration in deciding what constitutes a significant amount:
— 15 % of the nutrient reference values specified in point 1 supplied by 100 g or 100 ml in the case of products other than beverages,
— 7,5 % of the nutrient reference values specified in point 1 supplied by 100 ml in the case of beverages, or,
— 15 % of the nutrient reference values specified in point 1 per portion if the package contains only a single portion,
PART B — REFERENCE INTAKES FOR ENERGY AND SELECTED NUTRIENTS OTHER THAN VITAMINS AND MINERALS (ADULTS)
| Energy or nutrient | Reference intake | |--------------------|------------------| | Energy | 8 400 kJ/2 000 kcal | | Total fat | 70 g | | Saturates | 20 g | | Carbohydrate | 260 g | | Sugars | 90 g | | Protein | 50 g | | Salt | 6 g |
### ANNEX XIV
**CONVERSION FACTORS**
**CONVERSION FACTORS FOR THE CALCULATION OF ENERGY**
The energy value to be declared shall be calculated using the following conversion factors:
| Component | Conversion Factor | |----------------------------|-------------------| | carbohydrate (except polyols) | 17 kJ/g — 4 kcal/g | | polyols | 10 kJ/g — 2.4 kcal/g | | protein | 17 kJ/g — 4 kcal/g | | fat | 37 kJ/g — 9 kcal/g | | salatrim | 25 kJ/g — 6 kcal/g | | alcohol (ethanol) | 29 kJ/g — 7 kcal/g | | organic acid | 13 kJ/g — 3 kcal/g | | fibre | 8 kJ/g — 2 kcal/g | | erythritol | 0 kJ/g — 0 kcal/g | **ANNEX XV**
**EXPRESSION AND PRESENTATION OF NUTRITION DECLARATION**
The units of measurement to be used in the nutrition declaration for energy (kilojoules (kJ) and kilocalories (kcal)) and mass (grams (g), milligrams (mg) or micrograms (μg)) and the order of presentation of the information, as appropriate, shall be the following:
| Component | Unit | |--------------------|------------| | energy | kJ/kcal | | fat | g | | of which | | | — saturates | g | | — mono-unsaturates | g | | — polyunsaturates | g | | carbohydrate | g | | of which | | | — sugars | g | | — polyols | g | | — starch | g | | fibre | g | | protein | g | | salt | g | | vitamins and minerals | the units specified in point 1 of Part A of Annex XIII |
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19bfbbbcca343287aac9b9e84f6219ed6aee20cf | DIRECTIVE 2003/98/EC OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 17 November 2003 on the re-use of public sector information
THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION,
Having regard to the Treaty establishing the European Community, and in particular Article 95 thereof,
Having regard to the proposal from the Commission (1),
Having regard to the opinion of the European Economic and Social Committee (2),
Having regard to the opinion of the Committee of the Regions (3),
Acting in accordance with the procedure set out in Article 251 of the Treaty (4),
Whereas:
(1) The Treaty provides for the establishment of an internal market and of a system ensuring that competition in the internal market is not distorted. Harmonisation of the rules and practices in the Member States relating to the exploitation of public sector information contributes to the achievement of these objectives.
(2) The evolution towards an information and knowledge society influences the life of every citizen in the Community, inter alia, by enabling them to gain new ways of accessing and acquiring knowledge.
(3) Digital content plays an important role in this evolution. Content production has given rise to rapid job creation in recent years and continues to do so. Most of these jobs are created in small emerging companies.
(4) The public sector collects, produces, reproduces and disseminates a wide range of information in many areas of activity, such as social, economic, geographical, weather, tourist, business, patent and educational information.
(5) One of the principal aims of the establishment of an internal market is the creation of conditions conducive to the development of Community-wide services. Public sector information is an important primary material for digital content products and services and will become an even more important content resource with the development of wireless content services. Broad cross-border geographical coverage will also be essential in this context. Wider possibilities of re-using public sector information should inter alia allow European companies to exploit its potential and contribute to economic growth and job creation.
(6) There are considerable differences in the rules and practices in the Member States relating to the exploitation of public sector information resources, which constitute barriers to bringing out the full economic potential of this key document resource. Traditional practice in public sector bodies in exploiting public sector information has developed in very disparate ways. That should be taken into account. Minimum harmonisation of national rules and practices on the re-use of public sector documents should therefore be undertaken, in cases where the differences in national regulations and practices or the absence of clarity hinder the smooth functioning of the internal market and the proper development of the information society in the Community.
(7) Moreover, without minimum harmonisation at Community level, legislative activities at national level, which have already been initiated in a number of Member States in order to respond to the technological challenges, might result in even more significant differences. The impact of such legislative differences and uncertainties will become more significant with the further development of the information society, which has already greatly increased cross-border exploitation of information.
(8) A general framework for the conditions governing re-use of public sector documents is needed in order to ensure fair, proportionate and non-discriminatory conditions for the re-use of such information. Public sector bodies collect, produce, reproduce and disseminate documents to fulfil their public tasks. Use of such documents for other reasons constitutes a re-use. Member States' policies can go beyond the minimum standards established in this Directive, thus allowing for more extensive re-use.
(1) OJ C 227 E, 24.9.2002, p. 382. (2) OJ C 85, 8.4.2003, p. 25. (3) OJ C 73, 26.3.2003, p. 38. (4) Opinion of the European Parliament of 12 February 2003 (not yet published in the Official Journal), Council Common Position of 26 May 2003 (OJ C 159 E, 8.7.2003, p. 1) and Position of the European Parliament of 25 September 2003 (not yet published in the Official Journal), Council Decision of 27 October 2003. This Directive does not contain an obligation to allow re-use of documents. The decision whether or not to authorise re-use will remain with the Member States or the public sector body concerned. This Directive should apply to documents that are made accessible for re-use when public sector bodies license, sell, disseminate, exchange or give out information. To avoid cross-subsidies, re-use should include further use of documents within the organisation itself for activities falling outside the scope of its public tasks. Activities falling outside the public task will typically include supply of documents that are produced and charged for exclusively on a commercial basis and in competition with others in the market. The definition of ‘document’ is not intended to cover computer programmes. The Directive builds on the existing access regimes in the Member States and does not change the national rules for access to documents. It does not apply in cases in which citizens or companies can, under the relevant access regime, only obtain a document if they can prove a particular interest. At Community level, Articles 41 (right to good administration) and 42 of the Charter of Fundamental Rights of the European Union recognise the right of any citizen of the Union and any natural or legal person residing or having its registered office in a Member State to have access to European Parliament, Council and Commission documents. Public sector bodies should be encouraged to make available for re-use any documents held by them. Public sector bodies should promote and encourage re-use of documents, including official texts of a legislative and administrative nature in those cases where the public sector body has the right to authorise their re-use.
The definitions of ‘public sector body’ and ‘body governed by public law’ are taken from the public procurement Directives (92/50/EEC (1), 93/36/EEC (2) and 93/37/EEC (3) and 98/4/EC (4)). Public undertakings are not covered by these definitions.
This Directive lays down a generic definition of the term ‘document’, in line with developments in the information society. It covers any representation of acts, facts or information — and any compilation of such acts, facts or information — whatever its medium (written on paper, or stored in electronic form or as a sound, visual or audiovisual recording), held by public sector bodies. A document held by a public sector body is a document where the public sector body has the right to authorise re-use.
The time limit for replying to requests for re-use should be reasonable and in line with the equivalent time for requests to access the document under the relevant access regimes. Reasonable time limits throughout the Union will stimulate the creation of new aggregated information products and services at pan-European level. Once a request for re-use has been granted, public sector bodies should make the documents available in a timeframe that allows their full economic potential to be exploited. This is particularly important for dynamic content (e.g. traffic data), the economic value of which depends on the immediate availability of the information and of regular updates. Should a licence be used, the timely availability of documents may be a part of the terms of the licence.
The possibilities for re-use can be improved by limiting the need to digitise paper-based documents or to process digital files to make them mutually compatible. Therefore, public sector bodies should make documents available in any pre-existing format or language, through electronic means where possible and appropriate. Public sector bodies should view requests for extracts from existing documents favourably when to grant such a request would involve only a simple operation. Public sector bodies should not, however, be obliged to provide an extract from a document where this involves disproportionate effort. To facilitate re-use, public sector bodies should make their own documents available in a format which, as far as possible and appropriate, is not dependent on the use of specific software. Where possible and appropriate, public sector bodies should take into account the possibilities for the re-use of documents by and for people with disabilities.
Where charges are made, the total income should not exceed the total costs of collecting, producing, reproducing and disseminating documents, together with a reasonable return on investment, having due regard to the self-financing requirements of the public sector body concerned, where applicable. Production includes creation and collation, and dissemination may also include user support. Recovery of costs, together with a reasonable return on investment, consistent with applicable accounting principles and the relevant cost calculation method of the public sector body concerned, constitutes an upper limit to the charges, as any excessive prices should be precluded. The upper limit for charges set in this Directive is without prejudice to the right of Member States or public sector bodies to apply lower charges or no charges at all, and Member States should encourage public sector bodies to make documents available at charges that do not exceed the marginal costs for reproducing and disseminating the documents.
(1) OJ L 209, 24.7.1992, p. 1. Directive as last amended by Commission Directive 2001/78/EC (OJ L 285, 29.10.2001, p. 1). (2) OJ L 199, 9.8.1993, p. 1. Directive as last amended by Commission Directive 2001/78/EC. (3) OJ L 199, 9.8.1993, p. 54. Directive as last amended by Commission Directive 2001/78/EC. (4) OJ L 101, 1.4.1998, p. 1. Ensuring that the conditions for re-use of public sector documents are clear and publicly available is a precondition for the development of a Community-wide information market. Therefore all applicable conditions for the re-use of the documents should be made clear to the potential re-users. Member States should encourage the creation of indices accessible on line, where appropriate, of available documents so as to promote and facilitate requests for re-use. Applicants for re-use of documents should be informed of available means of redress relating to decisions or practices affecting them. This will be particularly important for SMEs which may not be familiar with interactions with public sector bodies from other Member States and corresponding means of redress.
Making public all generally available documents held by the public sector — concerning not only the political process but also the legal and administrative process — is a fundamental instrument for extending the right to knowledge, which is a basic principle of democracy. This objective is applicable to institutions at every level, be it local, national or international.
In some cases the re-use of documents will take place without a licence being agreed. In other cases a licence will be issued imposing conditions on the re-use by the licensee dealing with issues such as liability, the proper use of documents, guaranteeing non-alteration and the acknowledgement of source. If public sector bodies license documents for re-use, the licence conditions should be fair and transparent. Standard licences that are available online may also play an important role in this respect. Therefore Member States should provide for the availability of standard licences.
If the competent authority decides to no longer make available certain documents for re-use, or to cease updating these documents, it should make these decisions publicly known, at the earliest opportunity, via electronic means whenever possible.
Conditions for re-use should be non-discriminatory for comparable categories of re-use. This should, for example, not prevent the exchange of information between public sector bodies free of charge for the exercise of public tasks, whilst other parties are charged for the re-use of the same documents. Neither should it prevent the adoption of a differentiated charging policy for commercial and non-commercial re-use.
Public sector bodies should respect competition rules when establishing the principles for re-use of documents avoiding as far as possible exclusive agreements between themselves and private partners. However, in order to provide a service of general economic interest, an exclusive right to re-use specific public sector documents may sometimes be necessary. This may be the case if no commercial publisher would publish the information without such an exclusive right.
This Directive should be implemented and applied in full compliance with the principles relating to the protection of personal data in accordance with Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and of the free movement of such data (1).
The intellectual property rights of third parties are not affected by this Directive. For the avoidance of doubt, the term 'intellectual property rights' refers to copyright and related rights only (including sui generis forms of protection). This Directive does not apply to documents covered by industrial property rights, such as patents, registered designs and trademarks. The Directive does not affect the existence or ownership of intellectual property rights of public sector bodies, nor does it limit the exercise of these rights in any way beyond the boundaries set by this Directive. The obligations imposed by this Directive should apply only insofar as they are compatible with the provisions of international agreements on the protection of intellectual property rights, in particular the Berne Convention for the Protection of Literary and Artistic Works (the Berne Convention) and the Agreement on Trade-Related Aspects of Intellectual Property Rights (the TRIPS Agreement). Public sector bodies should, however, exercise their copyright in a way that facilitates re-use.
Tools that help potential re-users to find documents available for re-use and the conditions for re-use can facilitate considerably the cross-border use of public sector documents. Member States should therefore ensure that practical arrangements are in place that help re-users in their search for documents available for re-use. Assets lists, accessible preferably online, of main documents (documents that are extensively re-used or that have the potential to be extensively re-used), and portal sites that are linked to decentralised assets lists are examples of such practical arrangements.
(1) OJ L 281, 23.11.1995, p. 31. This Directive is without prejudice to Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society (1) and Directive 96/9/EC of the European Parliament and of the Council of 11 March 1996 on the legal protection of databases (2). It spells out the conditions within which public sector bodies can exercise their intellectual property rights in the internal information market when allowing re-use of documents.
Since the objectives of the proposed action, namely to facilitate the creation of Community-wide information products and services based on public sector documents, to enhance an effective cross-border use of public sector documents by private companies for added-value information products and services and to limit distortions of competition on the Community market, cannot be sufficiently achieved by the Member States and can therefore, in view of the intrinsic Community scope and impact of the said action, be better achieved at Community level, the Community may adopt measures, in accordance with the principle of subsidiarity as set out in Article 5 of the Treaty. In accordance with the principle of proportionality, as set out in that Article, this Directive does not go beyond what is necessary in order to achieve those objectives. This Directive should achieve minimum harmonisation, thereby avoiding further disparities between the Member States in dealing with the re-use of public sector documents.
HAVE ADOPTED THIS DIRECTIVE:
CHAPTER I
GENERAL PROVISIONS
Article 1
Subject matter and scope
1. This Directive establishes a minimum set of rules governing the re-use and the practical means of facilitating re-use of existing documents held by public sector bodies of the Member States.
2. This Directive shall not apply to:
(a) documents the supply of which is an activity falling outside the scope of the public task of the public sector bodies concerned as defined by law or by other binding rules in the Member State, or in the absence of such rules as defined in line with common administrative practice in the Member State in question;
(b) documents for which third parties hold intellectual property rights;
(c) documents which are excluded from access by virtue of the access regimes in the Member States, including on the grounds of: — the protection of national security (i.e. State security), defence, or public security, — statistical or commercial confidentiality;
(d) documents held by public service broadcasters and their subsidiaries, and by other bodies or their subsidiaries for the fulfilment of a public service broadcasting remit;
(e) documents held by educational and research establishments, such as schools, universities, archives, libraries and research facilities including, where relevant, organisations established for the transfer of research results;
(f) documents held by cultural establishments, such as museums, libraries, archives, orchestras, operas, ballets and theatres.
3. This Directive builds on and is without prejudice to the existing access regimes in the Member States. This Directive shall not apply in cases in which citizens or companies have to prove a particular interest under the access regime to obtain access to the documents.
4. This Directive leaves intact and in no way affects the level of protection of individuals with regard to the processing of personal data under the provisions of Community and national law, and in particular does not alter the obligations and rights set out in Directive 95/46/EC.
5. The obligations imposed by this Directive shall apply only insofar as they are compatible with the provisions of international agreements on the protection of intellectual property rights, in particular the Berne Convention and the TRIPS Agreement.
Article 2
Definitions
For the purpose of this Directive the following definitions shall apply:
1. ‘public sector body’ means the State, regional or local authorities, bodies governed by public law and associations formed by one or several such authorities or one or several such bodies governed by public law;
2. ‘body governed by public law’ means any body:
(a) established for the specific purpose of meeting needs in the general interest, not having an industrial or commercial character; and
(b) having legal personality; and
(c) financed, for the most part by the State, or regional or local authorities, or other bodies governed by public law; or subject to management supervision by those bodies; or having an administrative, managerial or supervisory board, more than half of whose members are appointed by the State, regional or local authorities or by other bodies governed by public law;
(1) OJ L 167, 22.6.2001, p. 10. (2) OJ L 77, 27.3.1996, p. 20. 3. ‘document’ means: (a) any content whatever its medium (written on paper or stored in electronic form or as a sound, visual or audio-visual recording); (b) any part of such content; 4. ‘re-use’ means the use by persons or legal entities of documents held by public sector bodies, for commercial or non-commercial purposes other than the initial purpose within the public task for which the documents were produced. Exchange of documents between public sector bodies purely in pursuit of their public tasks does not constitute re-use; 5. ‘personal data’ means data as defined in Article 2(a) of Directive 95/46/EC.
Article 3
General principle
Member States shall ensure that, where the re-use of documents held by public sector bodies is allowed, these documents shall be re-usable for commercial or non-commercial purposes in accordance with the conditions set out in Chapters III and IV. Where possible, documents shall be made available through electronic means.
CHAPTER II
REQUESTS FOR RE-USE
Article 4
Requirements applicable to the processing of requests for re-use
1. Public sector bodies shall, through electronic means where possible and appropriate, process requests for re-use and shall make the document available for re-use to the applicant or, if a licence is needed, finalise the licence offer to the applicant within a reasonable time that is consistent with the time-frames laid down for the processing of requests for access to documents.
2. Where no time limits or other rules regulating the timely provision of documents have been established, public sector bodies shall process the request and shall deliver the documents for re-use to the applicant or, if a licence is needed, finalise the licence offer to the applicant within a timeframe of not more than 20 working days after its receipt. This timeframe may be extended by another 20 working days for extensive or complex requests. In such cases the applicant shall be notified within three weeks after the initial request that more time is needed to process it.
3. In the event of a negative decision, the public sector bodies shall communicate the grounds for refusal to the applicant on the basis of the relevant provisions of the access regime in that Member State or of the national provisions adopted pursuant to this Directive, in particular Article 1(2)(a), (b) and (c), or Article 3. Where a negative decision is based on Article 1(2)(b), the public sector body shall include a reference to the natural or legal person who is the rightholder, where known, or alternatively to the licensor from which the public sector body has obtained the relevant material.
4. Any negative decision shall contain a reference to the means of redress in case the applicant wishes to appeal the decision.
5. Public sector bodies covered under Article 1(2)(d), (e) and (f) shall not be required to comply with the requirements of this Article.
CHAPTER III
CONDITIONS FOR RE-USE
Article 5
Available formats
1. Public sector bodies shall make their documents available in any pre-existing format or language, through electronic means where possible and appropriate. This shall not imply an obligation for public sector bodies to create or adapt documents in order to comply with the request, nor shall it imply an obligation to provide extracts from documents where this would involve disproportionate effort, going beyond a simple operation.
2. On the basis of this Directive, public sector bodies cannot be required to continue the production of a certain type of documents with a view to the re-use of such documents by a private or public sector organisation.
Article 6
Principles governing charging
Where charges are made, the total income from supplying and allowing re-use of documents shall not exceed the cost of collection, production, reproduction and dissemination, together with a reasonable return on investment. Charges should be cost-oriented over the appropriate accounting period and calculated in line with the accounting principles applicable to the public sector bodies involved. Article 7
Transparency
Any applicable conditions and standard charges for the re-use of documents held by public sector bodies shall be pre-established and published, through electronic means where possible and appropriate. On request, the public sector body shall indicate the calculation basis for the published charge. The public sector body in question shall also indicate which factors will be taken into account in the calculation of charges for atypical cases. Public sector bodies shall ensure that applicants for re-use of documents are informed of available means of redress relating to decisions or practices affecting them.
Article 8
Licences
1. Public sector bodies may allow for re-use of documents without conditions or may impose conditions, where appropriate through a licence, dealing with relevant issues. These conditions shall not unnecessarily restrict possibilities for re-use and shall not be used to restrict competition.
2. In Member States where licences are used, Member States shall ensure that standard licences for the re-use of public sector documents, which can be adapted to meet particular licence applications, are available in digital format and can be processed electronically. Member States shall encourage all public sector bodies to use the standard licences.
Article 9
Practical arrangements
Member States shall ensure that practical arrangements are in place that facilitate the search for documents available for re-use, such as assets lists, accessible preferably online, of main documents, and portal sites that are linked to decentralised assets lists.
CHAPTER IV
NON-DISCRIMINATION AND FAIR TRADING
Article 10
Non-discrimination
1. Any applicable conditions for the re-use of documents shall be non-discriminatory for comparable categories of re-use.
2. If documents are re-used by a public sector body as input for its commercial activities which fall outside the scope of its public tasks, the same charges and other conditions shall apply to the supply of the documents for those activities as apply to other users.
Article 11
Prohibition of exclusive arrangements
1. The re-use of documents shall be open to all potential actors in the market, even if one or more market players already exploit added-value products based on these documents. Contracts or other arrangements between the public sector bodies holding the documents and third parties shall not grant exclusive rights.
2. However, where an exclusive right is necessary for the provision of a service in the public interest, the validity of the reason for granting such an exclusive right shall be subject to regular review, and shall, in any event, be reviewed every three years. The exclusive arrangements established after the entry into force of this Directive shall be transparent and made public.
3. Existing exclusive arrangements that do not qualify for the exception under paragraph 2 shall be terminated at the end of the contract or in any case not later than 31 December 2008.
CHAPTER V
FINAL PROVISIONS
Article 12
Implementation
Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive by 1 July 2005. They shall forthwith inform the Commission thereof.
When Member States adopt those measures, they shall contain a reference to this Directive or be accompanied by such a reference on the occasion of their official publication. Member States shall determine how such reference is to be made.
Article 13
Review
1. The Commission shall carry out a review of the application of this Directive before 1 July 2008 and shall communicate the results of this review, together with any proposals for modifications of the Directive, to the European Parliament and the Council.
2. The review shall in particular address the scope and impact of this Directive, including the extent of the increase in re-use of public sector documents, the effects of the principles applied to charging and the re-use of official texts of a legislative and administrative nature, as well as further possibilities of improving the proper functioning of the internal market and the development of the European content industry.
Article 14
Entry into force This Directive shall enter into force on the day of its publication in the Official Journal of the European Union.
Article 15
Addressees This Directive is addressed to the Member States.
Done at Brussels, 17 November 2003.
For the Parliament P. COX The President
For the Council G. ALEMANNO The President
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(Acts whose publication is obligatory)
REGULATION (EC) No 852/2004 OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 29 April 2004
on the hygiene of foodstuffs
THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION,
Having regard to the Treaty establishing the European Community, and in particular Articles 95 and 152(4)(b) thereof,
Having regard to the proposal from the Commission¹,
Having regard to the Opinion of the Economic and Social Committee²,
Having consulted the Committee of the Regions,
Acting in accordance with the procedure laid down in Article 251 of the Treaty³,
¹ OJ C 365 E, 19.12.2000, p. 43. ² OJ C 155, 29.5.2001, p. 39. ³ Opinion of the European Parliament of 15 May 2002 (OJ C 180 E, 31.7.2003, p. 267), Council Common Position of 27 October 2003 (OJ C 48 E, 24.2.2004, p. 1), Position of the European Parliament of 30 March 2004 (not yet published in the Official Journal) and Council Decision of 16 April 2004. Whereas:
(1) The pursuit of a high level of protection of human life and health is one of the fundamental objectives of food law, as laid down in Regulation (EC) No 178/2002. That Regulation also lays down other common principles and definitions for national and Community food law, including the aim of achieving free movement of food within the Community.
(2) Council Directive 93/43/EEC of 14 June 1993 on the hygiene of foodstuffs laid down the general rules of hygiene for foodstuffs and the procedures for verification of compliance with these rules.
(3) Experience has shown that these rules and procedures constitute a sound basis for ensuring food safety. In the context of the common agricultural policy, many Directives have been adopted to establish specific health rules for the production and placing on the market of the products listed in Annex I to the Treaty. These health rules have reduced trade barriers for the products concerned, contributing to the creation of the internal market while ensuring a high level of protection of public health.
(4) With regard to public health, these rules and procedures contain common principles, in particular in relation to the manufacturers' and competent authorities' responsibilities, structural, operational and hygiene requirements for establishments, procedures for the approval of establishments, requirements for storage and transport and health marks.
______________________________________________________________________
1 Regulation (EC) No 178/2002 of the European Parliament and of the Council of 28 January 2002 laying down the general principles and requirements of food law, establishing the European Food Safety Authority and laying down procedures in matters of food safety (OJ L 31, 1.2.2002, p. 1). Regulation as amended by Regulation (EC) No 1642/2003 (OJ L 245, 29.9.2003, p. 4).
2 OJ L 175, 19.7.1993, p. 1. Directive as amended by Regulation (EC) No 1882/2003 of the European Parliament and of the Council (OJ L 284, 31.10.2003, p. 1). (5) These principles constitute a common basis for the hygienic production of all food, including products of animal origin listed in Annex I to the Treaty.
(6) In addition to this common basis, specific hygiene rules are necessary for certain foodstuffs. Regulation (EC) No /2004 of the European Parliament and of the Council of ................. laying down specific hygiene rules for food of animal origin (^1) lays down these rules.
(7) The principal objective of the new general and specific hygiene rules is to ensure a high level of consumer protection with regard to food safety.
(8) An integrated approach is necessary to ensure food safety from the place of primary production up to and including placing on the market or export. Every food business operator along the food chain should ensure that food safety is not compromised.
(9) Community rules should not apply either to primary production for private domestic use, or to the domestic preparation, handling or storage of food for private domestic consumption. Moreover, they should apply only to undertakings, the concept of which implies a certain continuity of activities and a certain degree of organisation.
(^1) See page of this Official Journal. (10) Food hazards present at the level of primary production should be identified and adequately controlled to ensure the achievement of the objectives of this Regulation. However, in the case of the direct supply of small quantities of primary products, by the food business operator producing them, to the final consumer or to a local retail establishment, it is appropriate to protect public health through national law, in particular because of the close relationship between the producer and the consumer.
(11) The application of hazard analysis and critical control point (HACCP) principles to primary production is not yet generally feasible. However, guides to good practice should encourage the use of appropriate hygiene practices at farm level. Where necessary, specific hygiene rules for primary production should supplement these guides. It is appropriate for the hygiene requirements applicable to primary production and associated operations to differ from those for other operations.
(12) Food safety is a result of several factors: legislation should lay down minimum hygiene requirements; official controls should be in place to check food business operators' compliance and food business operators should establish and operate food safety programmes and procedures based on the HACCP principles.
(13) Successful implementation of the procedures based on the HACCP principles will require the full cooperation and commitment of food business employees. To this end, employees should undergo training. The HACCP system is an instrument to help food business operators attain a higher standard of food safety. The HACCP system should not be regarded as a method of self-regulation and should not replace official controls. (14) While the requirement of establishing procedures based on the HACCP principles should not initially apply to primary production, the feasibility of its extension will be one element of the review that the Commission will carry out following implementation of this Regulation. It is, however, appropriate for Member States to encourage operators at the level of primary production to apply such principles as far as possible.
(15) The HACCP requirements should take account of the principles contained in the Codex Alimentarius. They should provide sufficient flexibility to be applicable in all situations, including in small businesses. In particular, it is necessary to recognise that, in certain food businesses, it is not possible to identify critical control points and that, in some cases, good hygienic practices can replace the monitoring of critical control points. Similarly, the requirement of establishing "critical limits" does not imply that it is necessary to fix a numerical limit in every case. In addition, the requirement of retaining documents needs to be flexible in order to avoid undue burdens for very small businesses.
(16) Flexibility is also appropriate to enable the continued use of traditional methods at any of the stages of production, processing or distribution of food and in relation to structural requirements for establishments. Flexibility is particularly important for regions that are subject to special geographical constraints, including the outermost regions referred to in Article 299(2) of the Treaty. However, flexibility should not compromise food hygiene objectives. Moreover, since all food produced in accordance with the hygiene rules will be in free circulation throughout the Community, the procedure allowing Member States to exercise flexibility should be fully transparent. It should provide, where necessary to resolve disagreements, for discussion within the Standing Committee on the Food Chain and Animal Health established by Regulation (EC) No 178/2002. (17) The setting of objectives such as pathogen reduction targets or performance standards may guide the implementation of hygiene rules. It is therefore necessary to provide procedures for that purpose. Such objectives would supplement existing food law, such as Council Regulation (EEC) No 315/93 of 8 February 1993 laying down Community procedures for contaminants in food ¹, which provides for the establishment of maximum tolerances for specific contaminants, and Regulation (EC) No 178/2002, which prohibits the placing on the market of unsafe food and provides a uniform basis for the use of the precautionary principle.
(18) To take account of technical and scientific progress, close and effective cooperation should be ensured between the Commission and the Member States within the Standing Committee on the Food Chain and Animal Health. This Regulation takes account of international obligations laid down in the WTO Sanitary and Phytosanitary Agreement and the international food safety standards contained in the Codex Alimentarius.
(19) The registration of establishments and the cooperation of food business operators are necessary to allow the competent authorities to perform official controls efficiently.
(20) The traceability of food and food ingredients along the food chain is an essential element in ensuring food safety. Regulation (EC) No 178/2002 contains rules to ensure the traceability of food and food ingredients and provides a procedure for the adoption of implementing rules to apply these principles in respect of specific sectors.
¹ OJ L 37, 13.2.1993, p. 1. Regulation as amended by Regulation (EC) No 1882/2003. (21) Food imported into the Community is to comply with the general requirements laid down in Regulation (EC) No 178/2002 or satisfy rules that are equivalent to Community rules. The present Regulation defines certain specific hygiene requirements for food imported into the Community.
(22) Food exported to third countries from the Community is to comply with the general requirements laid down in Regulation (EC) No 178/2002. The present Regulation defines certain specific hygiene requirements for food exported from the Community.
(23) Scientific advice should underpin Community legislation on food hygiene. To this end, the European Food Safety Authority should be consulted whenever necessary.
(24) Since this Regulation replaces Directive 93/43/EEC, the latter should be repealed.
(25) The requirements of this Regulation should not apply until all parts of the new legislation on food hygiene have entered into force. It is also appropriate to provide for at least 18 months to elapse between entry into force and the application of the new rules, to allow the affected industries time to adapt.
(26) The measures necessary for the implementation of this Regulation should be adopted in accordance with Council Decision 1999/468/EC of 28 June 1999 laying down the procedures for the exercise of implementing powers conferred on the Commission ¹,
HAVE ADOPTED THIS REGULATION:
¹ OJ L 184, 17.7.1999, p. 23. CHAPTER I
GENERAL PROVISIONS
Article 1
Scope
1. This Regulation lays down general rules for food business operators on the hygiene of foodstuffs, taking particular account of the following principles:
(a) primary responsibility for food safety rests with the food business operator;
(b) it is necessary to ensure food safety throughout the food chain, starting with primary production;
(c) it is important, for food that cannot be stored safely at ambient temperatures, particularly frozen food, to maintain the cold chain;
(d) general implementation of procedures based on the HACCP principles, together with the application of good hygiene practice, should reinforce food business operators' responsibility; (e) guides to good practice are a valuable instrument to aid food business operators at all levels of the food chain with compliance with food hygiene rules and with the application of the HACCP principles;
(f) it is necessary to establish microbiological criteria and temperature control requirements based on a scientific risk assessment;
(g) it is necessary to ensure that imported foods are of at least the same hygiene standard as food produced in the Community, or are of an equivalent standard.
This Regulation shall apply to all stages of production, processing and distribution of food and to exports, and without prejudice to more specific requirements relating to food hygiene.
2. This Regulation shall not apply to:
(a) primary production for private domestic use;
(b) the domestic preparation, handling or storage of food for private domestic consumption;
(c) the direct supply, by the producer, of small quantities of primary products to the final consumer or to local retail establishments directly supplying the final consumer; (d) collection centres and tanneries which fall within the definition of food business only because they handle raw material for the production of gelatine or collagen.
3. Member States shall establish, under national law, rules governing the activities referred to in paragraph 2(c). Such national rules shall ensure the achievement of the objectives of this Regulation.
Article 2
Definitions
1. For the purposes of this Regulation:
(a) "food hygiene", hereinafter called "hygiene", means the measures and conditions necessary to control hazards and to ensure fitness for human consumption of a foodstuff taking into account its intended use;
(b) "primary products" means products of primary production including products of the soil, of stock farming, of hunting and fishing;
(c) "establishment" means any unit of a food business;
(d) "competent authority" means the central authority of a Member State competent to ensure compliance with the requirements of this Regulation or any other authority to which that central authority has delegated that competence; it shall also include, where appropriate, the corresponding authority of a third country; (e) "equivalent" means, in respect of different systems, capable of meeting the same objectives;
(f) "contamination" means the presence or introduction of a hazard;
(g) "potable water" means water meeting the minimum requirements laid down in Council Directive 98/83/EC of 3 November 1998 on the quality of water intended for human consumption;
(h) "clean seawater" means natural, artificial or purified seawater or brackish water that does not contain micro-organisms, harmful substances or toxic marine plankton in quantities capable of directly or indirectly affecting the health quality of food;
(i) "clean water" means clean seawater and fresh water of a similar quality;
(j) "wrapping" means the placing of a foodstuff in a wrapper or container in direct contact with the foodstuff concerned, and the wrapper or container itself;
(k) "packaging" means the placing of one or more wrapped foodstuffs in a second container, and the latter container itself;
(l) "hermetically sealed container" means a container that is designed and intended to be secure against the entry of hazards;
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1 OJ L 330, 5.12.1998, p. 32. Directive as modified by Regulation (EC) No 1882/2003. (m) "processing" means any action that substantially alters the initial product, including heating, smoking, curing, maturing, drying, marinating, extraction, extrusion or a combination of those processes;
(n) "unprocessed products" means foodstuffs that have not undergone processing, and includes products that have been divided, parted, severed, sliced, boned, minced, skinned, ground, cut, cleaned, trimmed, husked, milled, chilled, frozen, deep-frozen or thawed;
(o) "processed products" means foodstuffs resulting from the processing of unprocessed products. These products may contain ingredients that are necessary for their manufacture or to give them specific characteristics.
2. The definitions laid down in Regulation (EC) No 178/2002 shall also apply.
3. In the Annexes to this Regulation the terms "where necessary", "where appropriate", "adequate" and "sufficient" shall mean respectively where necessary, where appropriate, adequate or sufficient to achieve the objectives of this Regulation. CHAPTER II
FOOD BUSINESS OPERATORS' OBLIGATIONS
Article 3
General obligation
Food business operators shall ensure that all stages of production, processing and distribution of food under their control satisfy the relevant hygiene requirements laid down in this Regulation.
Article 4
General and specific hygiene requirements
1. Food business operators carrying out primary production and those associated operations listed in Annex I shall comply with the general hygiene provisions laid down in Part A of Annex I and any specific requirements provided for in Regulation (EC) No ....../2004 \*.
2. Food business operators carrying out any stage of production, processing and distribution of food after those stages to which paragraph 1 applies shall comply with the general hygiene requirements laid down in Annex II and any specific requirements provided for in Regulation (EC) No ....../2004 \*.
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3. Food business operators shall, as appropriate, adopt the following specific hygiene measures:
(a) compliance with microbiological criteria for foodstuffs;
(b) procedures necessary to meet targets set to achieve the objectives of this Regulation;
(c) compliance with temperature control requirements for foodstuffs;
(d) maintenance of the cold chain;
(e) sampling and analysis.
4. The criteria, requirements and targets referred to in paragraph 3 shall be adopted in accordance with the procedure referred to in Article 14(2).
Associated sampling and analysis methods shall be laid down in accordance with the same procedure. 5. When this Regulation, Regulation (EC) No ....../2004 * and their implementing measures do not specify sampling or analysis methods, food business operators may use appropriate methods laid down in other Community or national legislation or, in the absence of such methods, methods that offer equivalent results to those obtained using the reference method, if they are scientifically validated in accordance with internationally recognised rules or protocols.
6. Food business operators may use the guides provided for in Articles 7, 8 and 9 as an aid to compliance with their obligations under this Regulation.
Article 5
Hazard analysis and critical control points
1. Food business operators shall put in place, implement and maintain a permanent procedure or procedures based on the HACCP principles.
2. The HACCP principles referred to in paragraph 1 consist of the following:
(a) identifying any hazards that must be prevented, eliminated or reduced to acceptable levels;
(b) identifying the critical control points at the step or steps at which control is essential to prevent or eliminate a hazard or to reduce it to acceptable levels;
- Note to Official Journal: insert number of Regulation laying down specific hygiene rules for food of animal origin. (c) establishing critical limits at critical control points which separate acceptability from unacceptability for the prevention, elimination or reduction of identified hazards;
(d) establishing and implementing effective monitoring procedures at critical control points;
(e) establishing corrective actions when monitoring indicates that a critical control point is not under control;
(f) establishing procedures, which shall be carried out regularly, to verify that the measures outlined in subparagraphs (a) to (e) are working effectively; and
(g) establishing documents and records commensurate with the nature and size of the food business to demonstrate the effective application of the measures outlined in subparagraphs (a) to (f).
When any modification is made in the product, process, or any step, food business operators shall review the procedure and make the necessary changes to it.
3. Paragraph 1 shall apply only to food business operators carrying out any stage of production, processing and distribution of food after primary production and those associated operations listed in Annex I.
4. Food business operators shall:
(a) provide the competent authority with evidence of their compliance with paragraph 1 in the manner that the competent authority requires, taking account of the nature and size of the food business;
(b) ensure that any documents describing the procedures developed in accordance with this Article are up-to-date at all times;
(c) retain any other documents and records for an appropriate period.
5. Detailed arrangements for the implementation of this Article may be laid down in accordance with the procedure referred to in Article 14(2). Such arrangements may facilitate the implementation of this Article by certain food business operators, in particular by providing for the use of procedures set out in guides for the application of HACCP principles, in order to comply with paragraph 1. Such arrangements may also specify the period during which food business operators shall retain documents and records in accordance with paragraph 4(c).
Article 6
Official controls, registration and approval
1. Food business operators shall cooperate with the competent authorities in accordance with other applicable Community legislation or, if it does not exist, with national law.
2. In particular, every food business operator shall notify the appropriate competent authority, in the manner that the latter requires, of each establishment under its control that carries out any of the stages of production, processing and distribution of food, with a view to the registration of each such establishment.
Food business operators shall also ensure that the competent authority always has up-to-date information on establishments, including by notifying any significant change in activities and any closure of an existing establishment.
3. However, food business operators shall ensure that establishments are approved by the competent authority, following at least one on-site visit, when approval is required:
(a) under the national law of the Member State in which the establishment is located;
(b) under Regulation (EC) No ....../2004 \*; or
(c) by a decision adopted in accordance with the procedure referred to in Article 14(2).
Any Member State requiring the approval of certain establishments located on its territory under national law, as provided for in subparagraph (a), shall inform the Commission and other Member States of the relevant national rules.
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GUIDES TO GOOD PRACTICE
Article 7
Development, dissemination and use of guides
Member States shall encourage the development of national guides to good practice for hygiene and for the application of HACCP principles in accordance with Article 8. Community guides shall be developed in accordance with Article 9.
The dissemination and use of both national and Community guides shall be encouraged. Nevertheless, food business operators may use these guides on a voluntary basis.
Article 8
National guides
1. When national guides to good practice are developed, they shall be developed and disseminated by food business sectors:
(a) in consultation with representatives of parties whose interests may be substantially affected, such as competent authorities and consumer groups; (b) having regard to relevant codes of practice of the Codex Alimentarius; and
c) when they concern primary production and those associated operations listed in Annex I, having regard to the recommendations set out in Part B of Annex I.
2. National guides may be developed under the aegis of a national standards institute referred to in Annex II to Directive 98/34/EC.
3. Member States shall assess national guides in order to ensure that:
(a) they have been developed in accordance with paragraph 1;
(b) their contents are practicable for the sectors to which they refer; and
(c) they are suitable as guides to compliance with Articles 3, 4 and 5 in the sectors and for the foodstuffs covered.
4. Member States shall forward to the Commission national guides complying with the requirements of paragraph 3. The Commission shall set up and run a registration system for such guides and make it available to Member States.
5. Guides to good practice drawn up under Directive 93/43/EEC shall continue to apply after the entry into force of this Regulation, provided that they are compatible with its objectives.
______________________________________________________________________
1 Directive 98/34/EC of the European Parliament and of the Council of 22 June 1998 laying down a procedure for the provision of information in the field of technical standards and regulations (OJ L 204, 21.7.1998, p. 37). Directive as amended by Directive 98/48/EC (OJ L 217, 5.8.1998, p. 18). Article 9
Community guides
1. Before Community guides to good practice for hygiene or for the application of the HACCP principles are developed, the Commission shall consult the Committee referred to in Article 14. The objective of this consultation shall be to consider the case for such guides, their scope and subject matter.
2. When Community guides are prepared, the Commission shall ensure that they are developed and disseminated:
(a) by or in consultation with appropriate representatives of European food business sectors, including SMEs, and other interested parties, such as consumer groups;
(b) in collaboration with parties whose interests may be substantially affected, including competent authorities;
(c) having regard to relevant codes of practice of the Codex Alimentarius; and
(d) when they concern primary production and those associated operations listed in Annex I, having regard to the recommendations set out in Part B of Annex I. 3. The Committee referred to in Article 14 shall assess draft Community guides in order to ensure that:
(a) they have been developed in accordance with paragraph 2;
(b) their contents are practicable for the sectors to which they refer throughout the Community; and
(c) they are suitable as guides to compliance with Articles 3, 4 and 5 in the sectors and for the foodstuffs covered.
4. The Commission shall invite the Committee referred to in Article 14 periodically to review any Community guides prepared in accordance with this Article, in cooperation with the bodies mentioned in paragraph 2.
The aim of this review shall be to ensure that the guides remain practicable and to take account of technological and scientific developments.
5. The titles and references of Community guides prepared in accordance with this Article shall be published in the C series of the Official Journal of the European Union. CHAPTER IV
IMPORTS AND EXPORTS
Article 10
Imports
As regards the hygiene of imported food, the relevant requirements of food law referred to in Article 11 of Regulation (EC) No 178/2002 shall include the requirements laid down in Articles 3 to 6 of this Regulation.
Article 11
Exports
As regards the hygiene of exported or re-exported food, the relevant requirements of food law referred to in Article 12 of Regulation (EC) No 178/2002 shall include the requirements laid down in Articles 3 to 6 of this Regulation. CHAPTER V
FINAL PROVISIONS
Article 12
Implementing measures and transitional arrangements
Implementing measures and transitional arrangements may be laid down in accordance with the procedure referred to in Article 14(2).
Article 13
Amendment and adaptation of Annexes I and II
1. Annexes I and II may be adapted or updated in accordance with the procedure referred to in Article 14(2), taking into account:
(a) the need to revise the recommendations set out in Annex I, Part B, paragraph 2;
(b) the experience gained from the implementation of HACCP-based systems pursuant to Article 5;
(c) technological developments and their practical consequences and consumer expectations with regard to food composition; (d) scientific advice, particularly new risk assessments;
(e) microbiological and temperature criteria for foodstuffs.
2. Derogations from Annexes I and II may be granted, in particular in order to facilitate the implementation of Article 5 for small businesses, in accordance with the procedure referred to in Article 14(2), taking into account the relevant risk factors, provided that such derogations do not affect the achievement of the objectives of this Regulation.
3. Member States may, without compromising achievement of the objectives of this Regulation, adopt, in accordance with paragraphs 4 to 7 of this Article, national measures adapting the requirements laid down in Annex II.
4.(a) The national measures referred to in paragraph 3 shall have the aim of:
(i) enabling the continued use of traditional methods, at any of the stages of production, processing or distribution of food; or
(ii) accommodating the needs of food businesses situated in regions that are subject to special geographical constraints.
(b) In other cases, they shall apply only to the construction, layout and equipment of establishments. 5. Any Member State wishing to adopt national measures as referred to in paragraph 3 shall notify the Commission and other Member States. The notification shall:
(a) provide a detailed description of the requirements that that Member State considers need to be adapted and the nature of the adaptation sought;
(b) describe the foodstuffs and establishments concerned;
(c) explain the reasons for the adaptation, including, where relevant, by providing a summary of the hazard analysis carried out and any measures to be taken to ensure that the adaptation will not compromise the objectives of this Regulation; and
(d) give any other relevant information.
6. The other Member States shall have three months from the receipt of a notification referred to in paragraph 5 to send written comments to the Commission. In the case of the adaptations arising from paragraph 4(b), this period shall, at the request of any Member State, be extended to four months. The Commission may, and when it receives written comments from one or more Member States shall, consult Member States within the committee referred to in Article 14(1). The Commission may decide, in accordance with the procedure referred to in Article 14(2), whether the envisaged measures may be implemented, subject, if necessary, to appropriate amendments. Where appropriate, the Commission may propose general measures in accordance with paragraph 1 or 2.
7. A Member State may adopt national measures adapting the requirements of Annex II only:
(a) in compliance with a decision adopted in accordance with paragraph 6; or
(b) if, one month after the expiry of the period referred to in paragraph 6, the Commission has not informed Member States that it has received written comments or that it intends to propose the adoption of a decision in accordance with paragraph 6.
Article 14
Committee procedure
1. The Commission shall be assisted by the Standing Committee on the Food Chain and Animal Health.
2. Where reference is made to this paragraph, Articles 5 and 7 of Decision 1999/468/EC shall apply, having regard to the provisions of Article 8 thereof.
The period laid down in Article 5(6) of Decision 1999/468/EC shall be set at three months.
3. The Committee shall adopt its rules of procedure. Article 15
Consultation of the European Food Safety Authority
The Commission shall consult the European Food Safety Authority on any matter falling within the scope of this Regulation that could have a significant impact on public health and, in particular, before proposing criteria, requirements or targets in accordance with Article 4(4).
Article 16
Report to the European Parliament and the Council
1. The Commission shall, not later than .......... \*, submit a report to the European Parliament and the Council.
2. The report shall, in particular, review the experience gained from the application of this Regulation and consider whether it would be desirable and practicable to provide for the extension of the requirements of Article 5 to food business operators carrying out primary production and those associated operations listed in Annex I.
3. The Commission shall, if appropriate, accompany the report with relevant proposals.
- Five years after the entry into force of this Regulation. Article 17
Repeal
1. Directive 93/43/EEC shall be repealed with effect from the date of application of this Regulation.
2. References to the repealed Directive shall be construed as being made to this Regulation.
3. However, decisions adopted pursuant to Articles 3(3) and 10 of Directive 93/43/EEC shall remain in force pending their replacement by decisions adopted in accordance with this Regulation or Regulation (EC) No 178/2002. Pending the setting of the criteria or requirements referred to in Article 4(3), points (a) to (e) of this Regulation, Member States may maintain any national rules establishing such criteria or requirements that they had adopted in accordance with Directive 93/43/EEC.
4. Pending the application of new Community legislation laying down rules for official controls on food, Member States shall take all appropriate measures to ensure the fulfilment of the obligations laid down in or under this Regulation.
Article 18
Entry into force
This Regulation shall enter into force twenty days after the date of its publication in the Official Journal of the European Union. It shall apply 18 months after the date on which all of the following acts have entered into force:
(a) Regulation (EC) No .../2004 \*
(b) Regulation (EC) No .../2004 of the European Parliament and of the Council of .......... laying down specific rules for the organisation of official controls on products of animal origin intended for human consumption ¹; and
(c) Directive 2004/41/EC of the European Parliament and of the Council of .......... repealing certain Directives concerning food hygiene and health conditions for the production and placing on the market of certain products of animal origin intended for human consumption ².
However, it shall apply no earlier than 1 January 2006.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Strasbourg, 29 April 2004.
For the European Parliament
The President
P. COX
For the Council
The President
M. McDOWELL
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¹ See p. of this Official Journal.
² See p. of this Official Journal. PART A: GENERAL HYGIENE PROVISIONS FOR PRIMARY PRODUCTION AND ASSOCIATED OPERATIONS
I. SCOPE
1. This Annex applies to primary production and the following associated operations:
(a) the transport, storage and handling of primary products at the place of production, provided that this does not substantially alter their nature;
(b) the transport of live animals, where this is necessary to achieve the objectives of this Regulation; and
(c) in the case of products of plant origin, fishery products and wild game, transport operations to deliver primary products, the nature of which has not been substantially altered, from the place of production to an establishment.
II. HYGIENE PROVISIONS
2. As far as possible, food business operators are to ensure that primary products are protected against contamination, having regard to any processing that primary products will subsequently undergo.
3. Notwithstanding the general duty laid down in paragraph 2, food business operators are to comply with appropriate Community and national legislative provisions relating to the control of hazards in primary production and associated operations, including:
(a) measures to control contamination arising from the air, soil, water, feed, fertilisers, veterinary medicinal products, plant protection products and biocides and the storage, handling and disposal of waste; and
(b) measures relating to animal health and welfare and plant health that have implications for human health, including programmes for the monitoring and control of zoonoses and zoonotic agents.
4. Food business operators rearing, harvesting or hunting animals or producing primary products of animal origin are to take adequate measures, as appropriate:
(a) to keep any facilities used in connection with primary production and associated operations, including facilities used to store and handle feed, clean and, where necessary after cleaning, to disinfect them in an appropriate manner;
(b) to keep clean and, where necessary after cleaning, to disinfect, in an appropriate manner, equipment, containers, crates, vehicles and vessels; (c) as far as possible to ensure the cleanliness of animals going to slaughter and, where necessary, production animals;
(d) to use potable water, or clean water, whenever necessary to prevent contamination;
(e) to ensure that staff handling foodstuffs are in good health and undergo training on health risks;
(f) as far as possible to prevent animals and pests from causing contamination;
(g) to store and handle waste and hazardous substances so as to prevent contamination;
(h) to prevent the introduction and spread of contagious diseases transmissible to humans through food, including by taking precautionary measures when introducing new animals and reporting suspected outbreaks of such diseases to the competent authority;
(i) to take account of the results of any relevant analyses carried out on samples taken from animals or other samples that have importance to human health; and
(j) to use feed additives and veterinary medicinal products correctly, as required by the relevant legislation. 5. Food business operators producing or harvesting plant products are to take adequate measures, as appropriate:
(a) to keep clean and, where necessary after cleaning, to disinfect, in an appropriate manner, facilities, equipment, containers, crates, vehicles and vessels;
(b) to ensure, where necessary, hygienic production, transport and storage conditions for, and the cleanliness of, plant products;
(c) to use potable water, or clean water, whenever necessary to prevent contamination;
(d) to ensure that staff handling foodstuffs are in good health and undergo training on health risks;
(e) as far as possible to prevent animals and pests from causing contamination;
(f) to store and handle wastes and hazardous substances so as to prevent contamination;
(g) to take account of the results of any relevant analyses carried out on samples taken from plants or other samples that have importance to human health; and
(h) to use plant protection products and biocides correctly, as required by the relevant legislation. 6. Food business operators are to take appropriate remedial action when informed of problems identified during official controls.
III. RECORD-KEEPING
7. Food business operators are to keep and retain records relating to measures put in place to control hazards in an appropriate manner and for an appropriate period, commensurate with the nature and size of the food business. Food business operators are to make relevant information contained in these records available to the competent authority and receiving food business operators on request.
8. Food business operators rearing animals or producing primary products of animal origin are, in particular, to keep records on:
(a) the nature and origin of feed fed to the animals;
(b) veterinary medicinal products or other treatments administered to the animals, dates of administration and withdrawal periods;
(c) the occurrence of diseases that may affect the safety of products of animal origin;
(d) the results of any analyses carried out on samples taken from animals or other samples taken for diagnostic purposes, that have importance for human health; and
(e) any relevant reports on checks carried out on animals or products of animal origin. 9. Food business operators producing or harvesting plant products are, in particular, to keep records on:
(a) any use of plant protection products and biocides;
(b) any occurrence of pests or diseases that may affect the safety of products of plant origin; and
(c) the results of any relevant analyses carried out on samples taken from plants or other samples that have importance to human health.
10. The food business operators may be assisted by other persons, such as veterinarians, agronomists and farm technicians, with the keeping of records. PART B: RECOMMENDATIONS FOR GUIDES TO GOOD HYGIENE PRACTICE
11. National and Community guides referred to in Articles 7 to 9 of this Regulation should contain guidance on good hygiene practice for the control of hazards in primary production and associated operations.
12. Guides to good hygiene practice should include appropriate information on hazards that may arise in primary production and associated operations and actions to control hazards, including relevant measures set out in Community and national legislation or national and Community programmes. Examples of such hazards and measures may include:
(a) the control of contamination such as mycotoxins, heavy metals and radioactive material;
(b) the use of water, organic waste and fertilisers;
(c) the correct and appropriate use of plant protection products and biocides and their traceability;
(d) the correct and appropriate use of veterinary medicinal products and feed additives and their traceability;
(e) the preparation, storage, use and traceability of feed; (f) the proper disposal of dead animals, waste and litter;
(g) protective measures to prevent the introduction of contagious diseases transmissible to humans through food, and any obligation to notify the competent authority;
(h) procedures, practices and methods to ensure that food is produced, handled, packed, stored and transported under appropriate hygienic conditions, including effective cleaning and pest-control;
(i) measures relating to the cleanliness of slaughter and production animals;
(j) measures relating to record-keeping. GENERAL HYGIENE REQUIREMENTS FOR ALL FOOD BUSINESS OPERATORS (EXCEPT WHEN ANNEX I APPLIES)
INTRODUCTION
Chapters V to XII apply to all stages of production, processing and distribution of food and the remaining Chapters apply as follows:
– Chapter I applies to all food premises, except premises to which Chapter III applies;
– Chapter II applies to all rooms where food is prepared, treated or processed, except dining areas and premises to which Chapter III applies;
– Chapter III applies to those premises listed in the heading to the Chapter;
– Chapter IV applies to all transportation.
CHAPTER I
GENERAL REQUIREMENTS FOR FOOD PREMISES (OTHER THAN THOSE SPECIFIED IN CHAPTER III)
1. Food premises are to be kept clean and maintained in good repair and condition.
2. The layout, design, construction, siting and size of food premises are to:
(a) permit adequate maintenance, cleaning and/or disinfection, avoid or minimise air-borne contamination, and provide adequate working space to allow for the hygienic performance of all operations;
(b) be such as to protect against the accumulation of dirt, contact with toxic materials, the shedding of particles into food and the formation of condensation or undesirable mould on surfaces;
(c) permit good food hygiene practices, including protection against contamination and, in particular, pest control; and
(d) where necessary, provide suitable temperature-controlled handling and storage conditions of sufficient capacity for maintaining foodstuffs at appropriate temperatures and designed to allow those temperatures to be monitored and, where necessary, recorded.
03. An adequate number of flush lavatories are to be available and connected to an effective drainage system. Lavatories are not to open directly into rooms in which food is handled.
04. An adequate number of washbasins is to be available, suitably located and designated for cleaning hands. Washbasins for cleaning hands are to be provided with hot and cold running water, materials for cleaning hands and for hygienic drying. Where necessary, the facilities for washing food are to be separate from the hand-washing facility.
05. There is to be suitable and sufficient means of natural or mechanical ventilation. Mechanical airflow from a contaminated area to a clean area is to be avoided. Ventilation systems are to be so constructed as to enable filters and other parts requiring cleaning or replacement to be readily accessible.
06. Sanitary conveniences are to have adequate natural or mechanical ventilation.
07. Food premises are to have adequate natural and/or artificial lighting.
08. Drainage facilities are to be adequate for the purpose intended. They are to be designed and constructed to avoid the risk of contamination. Where drainage channels are fully or partially open, they are to be so designed as to ensure that waste does not flow from a contaminated area towards or into a clean area, in particular an area where foods likely to present a high risk to the final consumer are handled.
09. Where necessary, adequate changing facilities for personnel are to be provided.
10. Cleaning agents and disinfectants are not to be stored in areas where food is handled. CHAPTER II
SPECIFIC REQUIREMENTS IN ROOMS WHERE FOODSTUFFS ARE PREPARED, TREATED OR PROCESSED (EXCLUDING DINING AREAS AND THOSE PREMISES SPECIFIED IN CHAPTER III)
1. In rooms where food is prepared, treated or processed (excluding dining areas and those premises specified in Chapter III, but including rooms contained in means of transport) the design and layout are to permit good food hygiene practices, including protection against contamination between and during operations. In particular:
(a) floor surfaces are to be maintained in a sound condition and be easy to clean and, where necessary, to disinfect. This will require the use of impervious, non-absorbent, washable and non-toxic materials unless food business operators can satisfy the competent authority that other materials used are appropriate. Where appropriate, floors are to allow adequate surface drainage;
(b) wall surfaces are to be maintained in a sound condition and be easy to clean and, where necessary, to disinfect. This will require the use of impervious, non-absorbent, washable and non-toxic materials and require a smooth surface up to a height appropriate for the operations unless food business operators can satisfy the competent authority that other materials used are appropriate;
(c) ceilings (or, where there are no ceilings, the interior surface of the roof) and overhead fixtures are to be constructed and finished so as to prevent the accumulation of dirt and to reduce condensation, the growth of undesirable mould and the shedding of particles; (d) windows and other openings are to be constructed to prevent the accumulation of dirt. Those which can be opened to the outside environment are, where necessary, to be fitted with insect-proof screens which can be easily removed for cleaning. Where open windows would result in contamination, windows are to remain closed and fixed during production;
(e) doors are to be easy to clean and, where necessary, to disinfect. This will require the use of smooth and non-absorbent surfaces unless food business operators can satisfy the competent authority that other materials used are appropriate; and
(f) surfaces (including surfaces of equipment) in areas where foods are handled and in particular those in contact with food are to be maintained in a sound condition and be easy to clean and, where necessary, to disinfect. This will require the use of smooth, washable corrosion-resistant and non-toxic materials, unless food business operators can satisfy the competent authority that other materials used are appropriate.
2. Adequate facilities are to be provided, where necessary, for the cleaning, disinfecting and storage of working utensils and equipment. These facilities are to be constructed of corrosion-resistant materials, be easy to clean and have an adequate supply of hot and cold water.
3. Adequate provision is to be made, where necessary, for washing food. Every sink or other such facility provided for the washing of food is to have an adequate supply of hot and/or cold potable water consistent with the requirements of Chapter VII and be kept clean and, where necessary, disinfected. CHAPTER III
REQUIREMENTS FOR MOVABLE AND/OR TEMPORARY PREMISES (SUCH AS MARQUEES, MARKET STALLS, MOBILE SALES VEHICLES), PREMISES USED PRIMARILY AS A PRIVATE DWELLING HOUSE BUT WHERE FOODS ARE REGULARLY PREPARED FOR PLACING ON THE MARKET, AND VENDING MACHINES
1. Premises and vending machines are, so far as is reasonably practicable, to be so sited, designed, constructed and kept clean and maintained in good repair and condition as to avoid the risk of contamination, in particular by animals and pests.
2. In particular, where necessary:
(a) appropriate facilities are to be available to maintain adequate personal hygiene (including facilities for the hygienic washing and drying of hands, hygienic sanitary arrangements and changing facilities);
(b) surfaces in contact with food are to be in a sound condition and be easy to clean and, where necessary, to disinfect. This will require the use of smooth, washable, corrosion-resistant and non-toxic materials, unless food business operators can satisfy the competent authority that other materials used are appropriate;
(c) adequate provision is to be made for the cleaning and, where necessary, disinfecting of working utensils and equipment; (d) where foodstuffs are cleaned as part of the food business' operations, adequate provision is to be made for this to be undertaken hygienically;
(e) an adequate supply of hot and/or cold potable water is to be available;
(f) adequate arrangements and/or facilities for the hygienic storage and disposal of hazardous and/or inedible substances and waste (whether liquid or solid) are to be available;
(g) adequate facilities and/or arrangements for maintaining and monitoring suitable food temperature conditions are to be available;
(h) foodstuffs are to be so placed as to avoid the risk of contamination so far as is reasonably practicable.
CHAPTER IV
TRANSPORT
1. Conveyances and/or containers used for transporting foodstuffs are to be kept clean and maintained in good repair and condition to protect foodstuffs from contamination and are, where necessary, to be designed and constructed to permit adequate cleaning and/or disinfection.
2. Receptacles in vehicles and/or containers are not to be used for transporting anything other than foodstuffs where this may result in contamination.
3. Where conveyances and/or containers are used for transporting anything in addition to foodstuffs or for transporting different foodstuffs at the same time, there is, where necessary, to be effective separation of products.
4. Bulk foodstuffs in liquid, granulate or powder form are to be transported in receptacles and/or containers/tankers reserved for the transport of foodstuffs. Such containers are to be marked in a clearly visible and indelible fashion, in one or more Community languages, to show that they are used for the transport of foodstuffs, or are to be marked "for foodstuffs only".
5. Where conveyances and/or containers have been used for transporting anything other than foodstuffs or for transporting different foodstuffs, there is to be effective cleaning between loads to avoid the risk of contamination.
6. Foodstuffs in conveyances and/or containers are to be so placed and protected as to minimise the risk of contamination.
7. Where necessary, conveyances and/or containers used for transporting foodstuffs are to be capable of maintaining foodstuffs at appropriate temperatures and allow those temperatures to be monitored. CHAPTER V
EQUIPMENT REQUIREMENTS
1. All articles, fittings and equipment with which food comes into contact are to:
(a) be effectively cleaned and, where necessary, disinfected. Cleaning and disinfection are to take place at a frequency sufficient to avoid any risk of contamination;
(b) be so constructed, be of such materials and be kept in such good order, repair and condition as to minimise any risk of contamination;
(c) with the exception of non-returnable containers and packaging, be so constructed, be of such materials and be kept in such good order, repair and condition as to enable them to be kept clean and, where necessary, to be disinfected; and
(d) be installed in such a manner as to allow adequate cleaning of the equipment and the surrounding area.
2. Where necessary, equipment is to be fitted with any appropriate control device to guarantee fulfilment of this Regulation's objectives.
3. Where chemical additives have to be used to prevent corrosion of equipment and containers, they are to be used in accordance with good practice. CHAPTER VI
FOOD WASTE
1. Food waste, non-edible by-products and other refuse are to be removed from rooms where food is present as quickly as possible, so as to avoid their accumulation.
2. Food waste, non-edible by-products and other refuse are to be deposited in closable containers, unless food business operators can demonstrate to the competent authority that other types of containers or evacuation systems used are appropriate. These containers are to be of an appropriate construction, kept in sound condition, be easy to clean and, where necessary, to disinfect.
3. Adequate provision is to be made for the storage and disposal of food waste, non-edible by-products and other refuse. Refuse stores are to be designed and managed in such a way as to enable them to be kept clean and, where necessary, free of animals and pests.
4. All waste is to be eliminated in a hygienic and environmentally friendly way in accordance with Community legislation applicable to that effect, and is not to constitute a direct or indirect source of contamination.
CHAPTER VII
WATER SUPPLY
1. (a) There is to be an adequate supply of potable water, which is to be used whenever necessary to ensure that foodstuffs are not contaminated; (b) Clean water may be used with whole fishery products. Clean seawater may be used with live bivalve molluscs, echinoderms, tunicates and marine gastropods; clean water may also be used for external washing. When such water is used, adequate facilities are to be available for its supply.
2. Where non-potable water is used, for example for fire control, steam production, refrigeration and other similar purposes, it is to circulate in a separate duly identified system. Non-potable water is not to connect with, or allow reflux into, potable water systems.
3. Recycled water used in processing or as an ingredient is not to present a risk of contamination. It is to be of the same standard as potable water, unless the competent authority is satisfied that the quality of the water cannot affect the wholesomeness of the foodstuff in its finished form.
4. Ice which comes into contact with food or which may contaminate food is to be made from potable water or, when used to chill whole fishery products, clean water. It is to be made, handled and stored under conditions that protect it from contamination.
5. Steam used directly in contact with food is not to contain any substance that presents a hazard to health or is likely to contaminate the food.
6. Where heat treatment is applied to foodstuffs in hermetically sealed containers it is to be ensured that water used to cool the containers after heat treatment is not a source of contamination for the foodstuff. CHAPTER VIII
PERSONAL HYGIENE
1. Every person working in a food-handling area is to maintain a high degree of personal cleanliness and is to wear suitable, clean and, where necessary, protective clothing.
2. No person suffering from, or being a carrier of a disease likely to be transmitted through food or afflicted, for example, with infected wounds, skin infections, sores or diarrhoea is to be permitted to handle food or enter any food-handling area in any capacity if there is any likelihood of direct or indirect contamination. Any person so affected and employed in a food business and who is likely to come into contact with food is to report immediately the illness or symptoms, and if possible their causes, to the food business operator.
CHAPTER IX
PROVISIONS APPLICABLE TO FOODSTUFFS
1. A food business operator is not to accept raw materials or ingredients, other than live animals, or any other material used in processing products, if they are known to be, or might reasonably be expected to be, contaminated with parasites, pathogenic microorganisms or toxic, decomposed or foreign substances to such an extent that, even after the food business operator had hygienically applied normal sorting and/or preparatory or processing procedures, the final product would be unfit for human consumption.
2. Raw materials and all ingredients stored in a food business are to be kept in appropriate conditions designed to prevent harmful deterioration and protect them from contamination.
3. At all stages of production, processing and distribution, food is to be protected against any contamination likely to render the food unfit for human consumption, injurious to health or contaminated in such a way that it would be unreasonable to expect it to be consumed in that state.
4. Adequate procedures are to be in place to control pests. Adequate procedures are also to be in place to prevent domestic animals from having access to places where food is prepared, handled or stored (or, where the competent authority so permits in special cases, to prevent such access from resulting in contamination).
5. Raw materials, ingredients, intermediate products and finished products likely to support the reproduction of pathogenic micro-organisms or the formation of toxins are not to be kept at temperatures that might result in a risk to health. The cold chain is not to be interrupted. However, limited periods outside temperature control are permitted, to accommodate the practicalities of handling during preparation, transport, storage, display and service of food, provided that it does not result in a risk to health. Food businesses manufacturing, handling and wrapping processed foodstuffs are to have suitable rooms, large enough for the separate storage of raw materials from processed material and sufficient separate refrigerated storage.
6. Where foodstuffs are to be held or served at chilled temperatures they are to be cooled as quickly as possible following the heat-processing stage, or final preparation stage if no heat process is applied, to a temperature which does not result in a risk to health.
7. The thawing of foodstuffs is to be undertaken in such a way as to minimise the risk of growth of pathogenic microorganisms or the formation of toxins in the foods. During thawing, foods are to be subjected to temperatures that would not result in a risk to health. Where run-off liquid from the thawing process may present a risk to health it is to be adequately drained. Following thawing, food is to be handled in such a manner as to minimise the risk of growth of pathogenic microorganisms or the formation of toxins.
8. Hazardous and/or inedible substances, including animal feed, are to be adequately labelled and stored in separate and secure containers.
CHAPTER X
PROVISIONS APPLICABLE TO THE WRAPPING AND PACKAGING OF FOODSTUFFS
1. Material used for wrapping and packaging are not to be a source of contamination.
2. Wrapping materials are to be stored in such a manner that they are not exposed to a risk of contamination.
3. Wrapping and packaging operations are to be carried out so as to avoid contamination of the products. Where appropriate and in particular in the case of cans and glass jars, the integrity of the container’s construction and its cleanliness is to be assured.
4. Wrapping and packaging material re-used for foodstuffs is to be easy to clean and, where necessary, to disinfect. CHAPTER XI
HEAT TREATMENT
The following requirements apply only to food placed on the market in hermetically sealed containers:
1. any heat treatment process used to process an unprocessed product or to process further a processed product is:
(a) to raise every party of the product treated to a given temperature for a given period of time; and
(b) to prevent the product from becoming contaminated during the process;
2. to ensure that the process employed achieves the desired objectives, food business operators are to check regularly the main relevant parameters (particularly temperature, pressure, sealing and microbiology), including by the use of automatic devices;
3. the process used should conform to an internationally recognised standard (for example, pasteurisation, ultra high temperature or sterilisation). CHAPTER XII
TRAINING
Food business operators are to ensure:
1. that food handlers are supervised and instructed and/or trained in food hygiene matters commensurate with their work activity;
2. that those responsible for the development and maintenance of the procedure referred to in Article 5(1) of this Regulation or for the operation of relevant guides have received adequate training in the application of the HACCP principles; and
3. compliance with any requirements of national law concerning training programmes for persons working in certain food sectors.
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88dce6fe3707ba35f35b52c0501d1153834b4be8 | REGULATION (EC) No 853/2004 OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 29 April 2004
laying down specific hygiene rules for on the hygiene of foodstuffs
THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION,
Having regard to the Treaty establishing the European Community, and in particular Article 152(4)(b) thereof,
Having regard to the proposal from the Commission \*
Having regard to the Opinion of the European Economic and Social Committee †,
Having consulted the Committee of the Regions,
Acting in accordance with the procedure laid down in Article 251 of the Treaty ‡,
______________________________________________________________________
- OJ C 365 E, 19.12.2000, p. 58. † OJ C 155, 29.5.2001, p. 39. ‡ Opinion of the European Parliament of 15 May 2002 (OJ C 180 E, 31.7.2003, p. 288), Council Common Position of 27 October 2003 (OJ C 48 E, 24.2.2004, p. 23), Position of the European Parliament of 30 March 2004 (not yet published in the Official Journal) and Council Decision of 16 April 2004. Whereas:
(1) By Regulation (EC) No 2004\*, the European Parliament and the Council laid down general rules for food business operators on the hygiene of foodstuffs.
(2) Certain foodstuffs may present specific hazards to human health, requiring the setting of specific hygiene rules. This is particularly the case for food of animal origin, in which microbiological and chemical hazards have frequently been reported.
(3) In the context of the common agricultural policy, many Directives have been adopted to establish specific health rules for the production and placing on the market of the products listed in Annex I to the Treaty. These health rules have reduced trade barriers for the products concerned, contributing to the creation of the internal market while ensuring a high level of protection of public health.
(4) With regard to public health, these rules contain common principles, in particular in relation to the manufacturers' and competent authorities' responsibilities, structural, operational and hygiene requirements for establishments, procedures for the approval of establishments, requirements for storage and transport and health marks.
(5) These principles constitute a common basis for the hygienic production of food of animal origin, permitting the simplification of the existing Directives.
(6) It is desirable to achieve further simplification by applying the same rules wherever appropriate to all products of animal origin.
- Page … of this Official Journal. (7) The requirement in Regulation (EC) No 2004∗ whereby food business operators carrying out any stage of production, processing and distribution of food after primary production and associated operations must put in place, implement and maintain procedures based on hazard analysis and critical control point (HACCP) principles also permits simplification.
(8) Taken together, these elements justify a recasting of the specific hygiene rules contained in existing Directives.
(9) The principal objectives of the recasting are to secure a high level of consumer protection with regard to food safety, in particular by making food business operators throughout the Community subject to the same rules, and to ensure the proper functioning of the internal market in products of animal origin, thus contributing to the achievement of the objectives of the common agricultural policy.
(10) It is necessary to maintain and, where required to ensure consumer protection, to tighten detailed hygiene rules for products of animal origin.
(11) Community rules should not apply either to primary production for private domestic use or to the domestic preparation, handling or storage of food for private domestic consumption. Moreover, where small quantities of primary products or of certain types of meat are supplied directly by the food business operator producing them to the final consumer or to a local retail establishment, it is appropriate to protect public health through national law, in particular because of the close relationship between the producer and the consumer.
∗ Official Publications Office is to insert official number of Regulation on the hygiene of foodstuffs (as in recital 1). (12) The requirements of Regulation (EC) No /2004 * are generally sufficient to ensure food safety in establishments carrying out retail activities involving the direct sale or supply of food of animal origin to the final consumer. This Regulation should generally apply to wholesale activities (that is, when a retail establishment carries out operations with a view to supplying food of animal origin to another establishment). Nevertheless, with the exception of the specific temperature requirements laid down in this Regulation, the requirements of Regulation (EC) No /2004 * should suffice for wholesale activities consisting only of storage or transport.
(13) Member States should have some discretion to extend or to limit the application of the requirements of this Regulation to retail under national law. However, they may limit their application only if they consider that the requirements of Regulation (EC) No /2004 * are sufficient to achieve food hygiene objectives and when the supply of food of animal origin from a retail establishment to another establishment is a marginal, localised and restricted activity. Such supply should therefore be only a small part of the establishment's business; the establishments supplied should be situated in its immediate vicinity; and the supply should concern only certain types of products or establishments.
- Official Publications Office is to insert official number of Regulation on the hygiene of foodstuffs (as in recital 1). (14) In accordance with Article 10 of the Treaty, Member States are to take all appropriate measures to ensure that food business operators comply with the obligations laid down in this Regulation.
(15) The traceability of food is an essential element in ensuring food safety. In addition to complying with the general rules of Regulation (EC) No 178/2002 \*, food business operators responsible for establishments that are subject to approval in accordance with this Regulation should ensure that all products of animal origin that they place on the market bear either a health mark or an identification mark.
(16) Food imported into the Community is to comply with the general requirements laid down in Regulation (EC) No 178/2002 or to satisfy rules that are equivalent to Community rules. This Regulation defines specific hygiene requirements for food of animal origin imported into the Community.
______________________________________________________________________
- Regulation (EC) No 178/2002 of the European Parliament and of the Council of 28 January 2002 laying down the general principles and requirements of food law, establishing the European Food Safety Authority and laying down procedures in matters of food safety (OJ L 31, 1.2.2002, p. 1). Regulation as amended by Regulation (EC) No 1642/2003 (OJ L 245, 29.9.2003, p.4). (17) The adoption of this Regulation should not reduce the level of protection provided by the additional guarantees agreed for Finland and Sweden on their accession to the Community and confirmed by Decisions 94/968/EC \*, 95/50/EC †, 95/160/EC ‡, 95/161/EC §, 95/168/EC \*\*, 95/409/EC ††, 95/410/EC ‡‡ and 95/411/EC §§. It should establish a procedure for the granting, for a transitional period, of guarantees to any Member State that has an approved national control programme which, for the food of animal origin concerned, is equivalent to those approved for Finland and Sweden. Regulation (EC) No 2160/2003 of the European Parliament and of the Council of 17 November 2003 on the control of salmonella and other specified food-borne zoonotic agents \*\*\* provides for a similar procedure in respect of live animals and hatching eggs.
(18) It is appropriate for the structural and hygiene requirements laid down in this Regulation to apply to all types of establishments, including small businesses and mobile slaughterhouses.
- OJ L 371, 31.12.1994, p. 36. † OJ L 53, 9.3.1995, p. 31. ‡ OJ L 105 9.5.1995, p. 40. § OJ L 105, 9.5.1995, p. 44. \*\* OJ L 109, 16.5.1995, p. 44. †† OJ L 243, 11.10.1995, p. 21. ‡‡ OJ L 243, 11.10.1995, p. 25. §§ OJ L 243, 11.10.1995, p. 29. \*\*\* OJ L 325, 12.12.2003, p. 1. (19) Flexibility is appropriate to enable the continued use of traditional methods at any of the stages of production, processing or distribution of food and in relation to structural requirements for establishments. Flexibility is particularly important for regions that are subject to special geographical constraints, including the outermost regions referred to in Article 299(2) of the Treaty. However, flexibility should not compromise food hygiene objectives. Moreover, since all food produced in accordance with the hygiene rules will normally be in free circulation throughout the Community, the procedure allowing Member States to exercise flexibility should be fully transparent. It should provide, where necessary to resolve disagreements, for discussion within the Standing Committee on the Food Chain and Animal Health established by Regulation (EC) No 178/2002 and for the Commission to coordinate the process and take appropriate measures.
(20) The definition of mechanically separated meat (MSM) should be a generic one covering all methods of mechanical separation. Rapid technological developments in this area mean that a flexible definition is appropriate. The technical requirements for MSM should differ, however, depending on a risk assessment of the product resulting from different methods.
(21) There are interactions between food business operators, including the animal feed sector, and connections between animal health, animal welfare and public health considerations at all stages of production, processing and distribution. This requires adequate communication between the different stakeholders along the food chain from primary production to retail. (22) In order to ensure proper inspection of hunted wild game placed on the Community market, bodies of hunted animals and their viscera should be presented for official post-mortem inspection at a game-handling establishment. However, to preserve certain hunting traditions without prejudicing food safety, it is appropriate to provide for training for hunters who place wild game on the market for human consumption. This should enable hunters to undertake an initial examination of wild game on the spot. In these circumstances, it is not necessary to require trained hunters to deliver all viscera to the game-handling establishment for post-mortem examination, if they carry out this initial examination and identify no anomalies or hazards. However, Member States should be allowed to establish stricter rules within their territories to take account of specific risks.
(23) This Regulation should establish criteria for raw milk pending the adoption of new requirements for its placing on the market. These criteria should be trigger values, implying that, in the event of any overshooting, food business operators are to take corrective action and to notify the competent authority. The criteria should not be maximum figures beyond which raw milk cannot be placed on the market. This implies that, in certain circumstances, raw milk not fully meeting the criteria can safely be used for human consumption, if appropriate measures are taken. As regards raw milk and raw cream intended for direct human consumption, it is appropriate to enable each Member State to maintain or establish appropriate health measures to ensure the achievement of the objectives of this Regulation on its territory. (24) It is appropriate for the criterion for raw milk used to manufacture dairy products to be three times as high as the criterion for raw milk collected from the farm. The criterion for milk used to manufacture processed dairy products is an absolute value, whereas for raw milk collected from the farm it is an average. Compliance with the temperature requirements laid down in this Regulation will not halt all bacterial growth during transport and storage.
(25) The present recasting means that the existing hygiene rules can be repealed. Directive 2004/.../EC of the European Parliament and of the Council of ..... repealing certain Directives on food hygiene and health conditions for the production and placing on the market of certain products of animal origin intended for human consumption * achieves this.
(26) In addition, the rules of this Regulation on eggs replace those of Council Decision 94/371/EC of 20 June 1994 laying down specific public health conditions for the putting on the market of certain types of eggs †, which the repeal of Annex II to Council Directive 92/118/EEC ‡ renders void.
(27) Scientific advice should underpin Community legislation on food hygiene. To this end, the European Food Safety Authority should be consulted whenever necessary.
______________________________________________________________________
- Page … of this Official Journal. † OJ L 168, 2.7.1994, p. 34. ‡ Council Directive 92/118/EEC of 17 December 1992 laying down animal health and public health requirements governing trade in and imports into the Community of products not subject to the said requirements laid down in specific Community rules referred to in Annex A (I) to Directive 89/662/EEC and, as regards pathogens, to Directive 90/425/EEC (OJ L 62, 15.3.1993, p. 49). Directive as last amended by Commission Regulation (EC) No 445/2004 (OJ L 72, 11.3.2004, p. 60). (28) To take account of technical and scientific progress, close and effective cooperation should be ensured between the Commission and the Member States within the Standing Committee on the Food Chain and Animal Health.
(29) The requirements of this Regulation should not apply until all parts of the new legislation on food hygiene have entered into force. It is also appropriate to provide for at least 18 months to elapse between entry into force and the application of the new rules, to allow the industries affected time to adapt.
(30) The measures necessary for the implementation of this Regulation should be adopted in accordance with Council Decision 1999/468/EC of 28 June 1999 laying down the procedures for the exercise of implementing powers conferred on the Commission \*,
- OJ L 184, 17.7.1999, p. 23. HAVE ADOPTED THIS REGULATION:
CHAPTER I
GENERAL PROVISIONS
Article 1 Scope
1. This Regulation lays down specific rules on the hygiene of food of animal origin for food business operators. These rules supplement those laid down by Regulation (EC) No 2004\*. They shall apply to unprocessed and processed products of animal origin.
2. Unless expressly indicated to the contrary, this Regulation shall not apply to food containing both products of plant origin and processed products of animal origin. However, processed products of animal origin used to prepare such food shall be obtained and handled in accordance with the requirements of this Regulation.
3. This Regulation shall not apply in relation to:
(a) primary production for private domestic use;
(b) the domestic preparation, handling or storage of food for private domestic consumption;
- Official Publications Office is to insert official number of Regulation on the hygiene of foodstuffs. (c) the direct supply, by the producer, of small quantities of primary products to the final consumer or to local retail establishments directly supplying the final consumer;
(d) the direct supply, by the producer, of small quantities of meat from poultry and lagomorphs slaughtered on the farm to the final consumer or to local retail establishments directly supplying such meat to the final consumer as fresh meat;
(e) hunters who supply small quantities of wild game or wild game meat directly to the final consumer or to local retail establishments directly supplying the final consumer.
4. Member States shall establish, under national law, rules governing the activities and persons referred to in paragraph 3(c), (d) and (e). Such national rules shall ensure the achievement of the objectives of this Regulation.
5. (a) Unless expressly indicated to the contrary, this Regulation shall not apply to retail.
(b) However, this Regulation shall apply to retail when operations are carried out with a view to the supply of food of animal origin to another establishment, unless:
(i) the operations consist only of storage or transport, in which case the specific temperature requirements laid down in Annex III shall nevertheless apply; or
(ii) the supply of food of animal origin from the retail establishment is to other retail establishments only and, in accordance with national law, is a marginal, localised and restricted activity. (c) Member States may adopt national measures to apply the requirements of this Regulation to retail establishments situated on their territory to which it would not apply pursuant to subparagraphs (a) or (b).
6. This Regulation shall apply without prejudice to:
(a) relevant animal and public health rules, including more stringent rules laid down for the prevention, control and eradication of certain transmissible spongiform encephalopathies;
(b) animal welfare requirements; and
(c) requirements concerning the identification of animals and the traceability of products of animal origin.
Article 2 Definitions
The following definitions shall apply for the purposes of this Regulation:
1. the definitions laid down in Regulation (EC) No 178/2002;
2. the definitions laid down in Regulation (EC) No 852/2004 \*;
3. the definitions laid down in Annex I; and
4. any technical definitions contained in Annexes II and III.
- Official Publications Office is to insert official number of Regulation on the hygiene of foodstuffs. CHAPTER II
FOOD BUSINESS OPERATORS' OBLIGATIONS
Article 3 General obligations
1. Food business operators shall comply with the relevant provisions of Annexes II and III.
2. Food business operators shall not use any substance other than potable water – or, when Regulation (EC) No /2004 * or this Regulation permits its use, clean water – to remove surface contamination from products of animal origin, unless use of the substance has been approved in accordance with the procedure referred to in Article 12(2). Food business operators shall also comply with any conditions for use that may be adopted under the same procedure. The use of an approved substance shall not affect the food business operator's duty to comply with the requirements of this Regulation.
Article 4 Registration and approval of establishments
1. Food business operators shall place products of animal origin manufactured in the Community on the market only if they have been prepared and handled exclusively in establishments:
(a) that meet the relevant requirements of Regulation (EC) No /2004 \*, those of Annexes II and III of this Regulation and other relevant requirements of food law; and
______________________________________________________________________
- Official Publications Office is to insert official number of Regulation on the hygiene of foodstuffs. (b) that the competent authority has registered or, where required in accordance with paragraph 2, approved.
2. Without prejudice to Article 6(3) of Regulation (EC) No 2004\*, establishments handling those products of animal origin for which Annex III to this Regulation lays down requirements shall not operate unless the competent authority has approved them in accordance with paragraph 3 of this Article, with the exception of establishments carrying out only:
(a) primary production;
(b) transport operations;
(c) the storage of products not requiring temperature-controlled storage conditions; or
(d) retail operations other than those to which this Regulation applies pursuant to Article 1(5)(b).
3. An establishment subject to approval in accordance with paragraph 2 shall not operate unless the competent authority has, in accordance with Regulation (EC) No 2004 of the European Parliament and of the Council of .......... laying down specific rules for the organisation of official controls on products of animal origin intended for human consumption\*:
(a) granted the establishment approval to operate following an on-site visit; or
(b) provided the establishment with conditional approval.
- Page … of this Official Journal.
- Official Publications Office is to insert official number of Regulation on the hygiene of foodstuffs.
4. Food business operators shall cooperate with the competent authorities in accordance with Regulation (EC) No 2004\*. In particular, food business operators shall ensure that an establishment ceases to operate if the competent authority withdraws its approval or, in the case of conditional approval, fails to prolong it or to grant full approval.
5. This Article shall not prevent an establishment from placing food on the market between the date of application of this Regulation and the first subsequent inspection by the competent authority, if the establishment:
(a) is subject to approval in accordance with paragraph 2 and placed products of animal origin on the market in accordance with Community legislation immediately prior to the application of this Regulation; or
(b) is of a type in respect of which there was no requirement for approval before the application of this Regulation.
- Official Publications Office is to insert official number of Regulation on the organisation of official controls (see Article 4(3)). Article 5 Health and identification marking
1. Food business operators shall not place on the market a product of animal origin handled in an establishment subject to approval in accordance with Article 4(2) unless it has either:
(a) a health mark applied in accordance with Regulation (EC) No /2004 \*; or
(b) when that Regulation does not provide for the application of a health mark, an identification mark applied in accordance with Annex II, Section I, of this Regulation.
2. Food business operators may apply an identification mark to a product of animal origin only if the product has been manufactured in accordance with this Regulation in establishments meeting the requirements of Article 4.
3. Food business operators may not remove a health mark applied in accordance with Regulation (EC) No /2004 * from meat unless they cut or process it or work upon it in another manner.
- Official Publications Office is to insert official number of Regulation on the organisation of official controls. Article 6 Products of animal origin from outside the Community
1. Food business operators importing products of animal origin from third countries shall ensure that importation takes place only if:
(a) the third country of dispatch appears on a list, drawn up in accordance with Article 11 of Regulation (EC) No [\*]/2004, of third countries from which imports of that product are permitted;
(b) (i) the establishment from which that product was dispatched, and in which it was obtained or prepared, appears on a list, drawn up in accordance with Article 12 of Regulation (EC) No [\*]/2004, of establishments from which imports of that product are permitted, when applicable,
(ii) in the case of fresh meat, minced meat, meat preparations, meat products and MSM, the product was manufactured from meat obtained in slaughterhouses and cutting plants appearing on lists drawn up and updated in accordance with Article 12 of Regulation (EC) No [\*]/2004 or in approved Community establishments, and
(iii) in the case of live bivalve molluscs, echinoderms, tunicates and marine gastropods, the production area appears on a list drawn up in accordance with Article 13 of that Regulation, when applicable;
- Official Publications Office is to insert the official number of the Regulation on the organisation of official controls. (c) the product satisfies:
(i) the requirements of this Regulation, including the requirements of Article 5 on health and identification marking;
(ii) the requirements of Regulation (EC) No [\*]/2004; and
(iii) any import conditions laid down in accordance with Community legislation governing import controls for products of animal origin, and
(d) the requirements of Article 14 of Regulation (EC) No [\*\*]/2004 concerning certificates and documents are satisfied, when applicable.
2. By way of derogation from paragraph 1, the importation of fishery products may also take place in accordance with the special provisions laid down in Article 15 of Regulation (EC) No [\*\*]/2004.
3. Food business operators importing products of animal origin shall ensure that:
(a) products are made available for control upon importation in accordance with Directive 97/78/EC \*;
______________________________________________________________________
- Official Publications Office is to insert the official number of the Regulation on the hygiene of foodstuffs.
\*\* Official Publications Office is to insert the official number of the Regulation on the organisation of official controls.
- Directive 97/78/EC of 18 December 1997 laying down the principles governing the organisation of veterinary checks on products entering the Community from third countries (OJ L 24, 30.1.1998, p. 9). Directive amended by the Act of Accession 2003. (b) importation complies with the requirements of Directive 2002/99/EC\*; and
c) operations under their control that take place after importation are carried out in accordance with the requirements of Annex III.
4. Food business operators importing food containing both products of plant origin and processed products of animal origin shall ensure that the processed products of animal origin contained in such food satisfy the requirements of paragraphs 1 to 3. They must be able to demonstrate that they have done so (for example, through appropriate documentation or certification, which need not be in the format specified in paragraph 1(d)).
CHAPTER III
TRADE
Article 7
Documents
1. When required in accordance with Annex II or III, food business operators shall ensure that certificates or other documents accompany consignments of products of animal origin.
2. In accordance with the procedure referred to in Article 12(2):
(a) model documents may be established; and
(b) provision may be made for the use of electronic documents.
- Council Directive 2002/99/EC of 16 December 2002 laying down the animal health rules governing the production, processing, distribution and introduction of products of animal origin for human consumption (OJ L 18, 23.1.2003, p. 11). Article 8 Special guarantees
1. Food business operators intending to place the following food of animal origin on the market in Sweden or Finland shall comply with the rules set out in paragraph 2 in respect of salmonella:
(a) meat from bovine and porcine animals, including minced meat but excluding meat preparations and MSM;
(b) meat from poultry of the following species: domestic fowl, turkeys, guinea-fowl, ducks and geese, including minced meat but excluding meat preparations and MSM; and
(c) eggs.
2. (a) In the case of meat from bovine and porcine animals and meat from poultry, samples of consignments shall have been taken in the dispatching establishment and been subjected to a microbiological test with negative results in accordance with Community legislation.
(b) In the case of eggs, packing centres shall provide a guarantee that consignments originate from flocks that have been subjected to a microbiological test with negative results in accordance with Community legislation. (c) In the case of meat from bovine and porcine animals, the test provided for in subparagraph (a) need not be carried out for consignments intended for an establishment for the purposes of pasteurisation, sterilisation or treatment having a similar effect. In the case of eggs, the test provided for in subparagraph (b) need not be carried out for consignments intended for the manufacture of processed products by a process that guarantees the elimination of salmonella.
(d) The tests provided for in subparagraphs (a) and (b) need not be carried out for foodstuffs originating in an establishment that is subject to a control programme recognised, in respect of the food of animal origin concerned and in accordance with the procedure referred to in Article 12(2), as equivalent to that approved for Sweden and Finland.
(e) In the case of meat from bovine and porcine animals and meat from poultry, a trade document or certificate conforming to a model laid down by Community legislation shall accompany the food and state that:
(i) the checks referred to in subparagraph (a) have been carried out with negative results; or
(ii) the meat is intended for one of the purposes referred to in subparagraph (c); or
(iii) the meat comes from an establishment covered by subparagraph (d).
(f) In the case of eggs, a certificate stating that the tests referred to in subparagraph (b) have been carried out with negative results, or that the eggs are destined to be used in the manner referred to in subparagraph (c), must accompany consignments. 3. In accordance with the procedure referred to in Article 12(2):
(a) the requirements of paragraphs 1 and 2 may be updated to take account in particular of changes to Member States' control programmes or the adoption of microbiological criteria in accordance with Regulation (EC) No 2004\*; and
(b) the rules laid down in paragraph 2 in respect of any of the foodstuffs referred to in paragraph 1 may be extended, in whole or in part, to any Member State, or any region of a Member State, that has a control programme recognised as equivalent to that approved for Sweden and Finland in respect of the food of animal origin concerned.
4. For the purposes of this Article, "control programme" means a control programme approved in accordance with Regulation (EC) No 2160/2004.
CHAPTER IV
FINAL PROVISIONS
Article 9 Implementing measures and transitional measures
Implementing measures and transitional arrangements may be laid down in accordance with the procedure referred to in Article 12(2).
- Official Publications Office is to insert the official number of the Regulation on the hygiene of foodstuffs. Article 10 Amendment and adaptation of Annexes II and III
1. Annexes II and III may be adapted or updated in accordance with the procedure referred to in Article 12(2), taking into account:
(a) the development of guides to good practice;
(b) the experience gained from the implementation of HACCP-based systems pursuant to Article 5 of Regulation (EC) No 2004\*;
(c) the technological developments and their practical consequences and consumer expectations with regard to food composition;
(d) scientific advice, particularly new risk assessments;
(e) microbiological and temperature criteria for foodstuffs;
(f) changes in patterns of consumption.
2. Exemptions from Annex II and III may be granted in accordance with the procedure referred to in Article 12(2), provided that they do not affect the achievement of the objectives of this Regulation.
- Official Publications Office is to insert the official number of the Regulation on the hygiene of foodstuffs.
3. Member States may, without compromising achievement of the objectives of this Regulation, adopt, in accordance with paragraphs 4 to 8, national measures adapting the requirements laid down in Annex III.
4. (a) The national measures referred to in paragraph 3 shall have the aim of:
(i) enabling the continued use of traditional methods at any of the stages of production, processing or distribution of food; or
(ii) accommodating the needs of food businesses situated in regions that are subject to special geographic constraints.
(b) In other cases, they shall apply only to the construction, layout and equipment of establishments.
5. Any Member State wishing to adopt national measures as referred to in paragraph 3 shall notify the Commission and other Member States. Each notification shall:
(a) provide a detailed description of the requirements that that Member State considers need to be adapted and the nature of the adaptation sought;
(b) describe the foodstuffs and establishments concerned; (c) explain the reasons for the adaptation, including, where relevant, by providing a summary of the hazard analysis carried out and any measures to be taken to ensure that the adaptation will not compromise the objectives of this Regulation; and
(d) give any other relevant information.
6. The other Member States shall have three months from the receipt of a notification referred to in paragraph 5 to send written comments to the Commission. In the case of adaptations arising from paragraph 4(b), this period shall, at the request of any Member State, be extended to four months. The Commission may, and when it receives written comments from one or more Member States shall, consult Member States within the committee referred to in Article 12(1). The Commission may decide, in accordance with the procedure referred to in Article 12(2), whether the envisaged measures may be implemented, subject, if necessary, to appropriate amendments. Where appropriate, the Commission may propose general measures in accordance with paragraph 1 or 2 of this Article.
7. A Member State may adopt national measures adapting the requirements of Annex III only:
(a) in compliance with a decision adopted in accordance with paragraph 6;
(b) if, one month after the expiry of the period referred to in paragraph 6, the Commission has not informed Member States that it has received written comments or that it intends to propose the adoption of a decision in accordance with paragraph 6; or
(c) in accordance with paragraph 8. 8. A Member State may, of its own initiative and subject to the general provisions of the Treaty, maintain or establish national rules:
(a) prohibiting or restricting the placing on the market within its territory of raw milk or raw cream intended for direct human consumption; or
(b) permitting the use, with the authorisation of the competent authority, of raw milk not meeting the criteria laid down in Annex III, Section IX, as regards plate count and somatic cell count of the manufacture of cheeses with an ageing or ripening period of at least 60 days, and dairy products obtained in connection with the manufacture of such cheeses, provided that this does not prejudice the achievement of the objectives of this Regulation.
Article 11 Specific decisions
Without prejudice to the generality of Article 9 and Article 10(1), implementing measures may be laid down, or amendments to Annex II or III adopted, in accordance with the procedure referred to in Article 12(2):
01. to lay down rules for the transport of meat while it is warm;
02. to specify, in respect of MSM, which calcium content is not significantly higher than that of minced meat;
03. to lay down other treatments that may be applied in a processing establishment to live bivalve molluscs from class B or C production areas that have not been submitted to purification or relaying;
04. to specify recognised testing methods for marine biotoxins;
05. to lay down additional health standards for live bivalve molluscs in cooperation with the relevant Community Reference Laboratory, including:
(a) limit values and analysis methods for other marine biotoxins;
(b) virus testing procedures and virological standards; and
(c) sampling plans and the methods and analytical tolerances to be applied to check compliance with the health standards;
06. to lay down health standards or checks, where there is scientific evidence indicating that they are necessary to protect public health;
07. to extend Annex III, Section VII, Chapter IX, to live bivalve molluscs other than pectinidae;
08. to specify criteria for determining when epidemiological data indicate that a fishing ground does not present a health hazard with regard to the presence of parasites and, consequently, for determining when the competent authority may authorise food business operators not to freeze fishery products in accordance with Annex III, Section VIII, Chapter III, Part D;
09. to lay down freshness criteria and limits with regard to histamine and total volatile nitrogen for fisheries products;
10. to permit the use for the manufacture of certain dairy products of raw milk not meeting the criteria laid down in Annex III, Section IX, as regards its plate count and somatic cell count;
11. without prejudice to Directive 96/23/EC \*, to fix a maximum permitted value for the combined total of residues of antibiotic substances in raw milk; and
12. to approve equivalent processes for the production of gelatine or collagen.
**Article 12**
Committee procedure
1. The Commission shall be assisted by the Standing Committee on the Food Chain and Animal Health.
2. Where reference is made to this paragraph, Articles 5 and 7 of Decision 1999/468/EC shall apply, having regard to the provisions of Article 8 thereof.
The period provided for in Article 5(6) of Decision 1999/468/EC shall be set at three months.
3. The Committee shall adopt its rules of procedure.
______________________________________________________________________
- Council Directive 96/23/EC of 29 April 1996 on measures to monitor certain substances and residues thereof in live animals and animal products (OJ L 125, 23.5.1996, p. 10). Directive as amended by Regulation (EC) No 806/2003 (OJ L 122, 16.5.2003, p. 1). Article 13 Consultation of the European Food Safety Authority
The Commission shall consult the European Food Safety Authority on any matter falling within the scope of this Regulation that could have a significant impact on public health and, in particular, before proposing to extend Annex III, Section III, to other animal species.
Article 14 Report to the European Parliament and to the Council
1. The Commission shall, not later than ..., submit a report to the European Parliament and the Council reviewing the experience gained from the implementation of this Regulation.
2. The Commission shall, if appropriate, accompany the report with relevant proposals.
Article 15
This Regulation shall enter into force twenty days after the date of its publication in the Official Journal of the European Union.
It shall apply 18 months after the date on which all of the following acts have entered into force:
(a) Regulation (EC) No…/2004 \*\*;
______________________________________________________________________
- Five years after the entry into force of this Regulation. \*\* Official Publications Office is to insert the official number of the Regulation on the hygiene of foodstuffs. (b) Regulation (EC) No…/2004\*; and
(c) Directive 2004/…/EC\*\*.
However, it shall apply no earlier than 1 January 2006.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Strasbourg, 29.4.2004.
For the European Parliament The President P. COX
For the Council The President M. McDOWELL
- Official Publications Office is to insert here the official number of the Regulation referred to in Article 4(3).
\*\* Official Publications Office is to insert here the official number of the Directive referred to in recital 25. DEFINITIONS
For the purpose of this Regulation:
1. MEAT
1.1. "Meat" means edible parts of the animals referred to in points 1.2 to 1.8, including blood.
1.2. "Domestic ungulates" means domestic bovine (including Bubalus and Bison species), porcine, ovine and caprine animals, and domestic solipeds.
1.3. "Poultry" means farmed birds, including birds that are not considered as domestic but which are farmed as domestic animals, with the exception of ratites.
1.4. "Lagomorphs" means rabbits, hares and rodents.
1.5. "Wild game" means:
- wild ungulates and lagomorphs, as well as other land mammals that are hunted for human consumption and are considered to be wild game under the applicable law in the Member State concerned, including mammals living in enclosed territory under conditions of freedom similar to those of wild game; and
- wild birds that are hunted for human consumption. 1.6. "Farmed game" means farmed ratites and farmed land mammals other than those referred to in point 1.2.
1.7. "Small wild game" means wild game birds and lagomorphs living freely in the wild.
1.8. "Large wild game" means wild land mammals living freely in the wild that do not fall within the definition of small wild game.
1.9. "Carcase" means the body of an animal after slaughter and dressing.
1.10. "Fresh meat" means meat that has not undergone any preserving process other than chilling, freezing or quick-freezing, including meat that is vacuum-wrapped or wrapped in a controlled atmosphere.
1.11. "Offal" means fresh meat other than that of the carcase, including viscera and blood.
1.12. "Viscera" means the organs of the thoracic, abdominal and pelvic cavities, as well as the trachea and oesophagus and, in birds, the crop.
1.13. "Minced meat" means boned meat that has been minced into fragments and contains less than 1% salt.
1.14. "Mechanically separated meat" or "MSM" means the product obtained by removing meat from flesh-bearing bones after boning or from poultry carcases, using mechanical means resulting in the loss or modification of the muscle fibre structure. 1.15. "Meat preparations" means fresh meat, including meat that has been reduced to fragments, which has had foodstuffs, seasonings or additives added to it or which has undergone processes insufficient to modify the internal muscle fibre structure of the meat and thus to eliminate the characteristics of fresh meat.
1.16. "Slaughterhouse" means an establishment used for slaughtering and dressing animals, the meat of which is intended for human consumption.
1.17. "Cutting plant" means an establishment used for boning and/or cutting up meat.
1.18. "Game-handling establishment" means any establishment in which game and game meat obtained after hunting are prepared for placing on the market.
2. LIVE BIVALVE MOLLUSCS
2.1. "Bivalve molluscs" means filter-feeding lamellibranch molluscs.
2.2. "Marine biotoxins" means poisonous substances accumulated by bivalve molluscs, in particular as a result of feeding on plankton containing toxins.
2.3. "Conditioning" means the storage of live bivalve molluscs coming from class A production areas, purification centres or dispatch centres in tanks or any other installation containing clean seawater, or in natural sites, to remove sand, mud or slime, to preserve or to improve organoleptic qualities and to ensure that they are in a good state of vitality before wrapping or packaging. 2.4. "Gatherer" means any natural or legal person who collects live bivalve molluscs by any means from a harvesting area for the purpose of handling and placing on the market.
2.5. "Production area" means any sea, estuarine or lagoon area, containing either natural beds of bivalve molluscs or sites used for the cultivation of bivalve molluscs, and from which live bivalve molluscs are taken.
2.6. "Relaying area" means any sea, estuarine or lagoon area with boundaries clearly marked and indicated by buoys, posts or any other fixed means, and used exclusively for the natural purification of live bivalve molluscs.
2.7. "Dispatch centre" means any on-shore or off-shore establishment for the reception, conditioning, washing, cleaning, grading, wrapping and packaging of live bivalve molluscs fit for human consumption.
2.8. "Purification centre" means an establishment with tanks fed by clean seawater in which live bivalve molluscs are placed for the time necessary to reduce contamination to make them fit for human consumption.
2.9. "Relaying" means the transfer of live bivalve molluscs to sea, lagoon or estuarine areas for the time necessary to reduce contamination to make them fit for human consumption. This does not include the specific operation of transferring bivalve molluscs to areas more suitable for further growth or fattening. 3. FISHERY PRODUCTS
3.1. "Fishery products" means all seawater or freshwater animals (except for live bivalve molluscs, live echinoderms, live tunicates and live marine gastropods, and all mammals, reptiles and frogs) whether wild or farmed and including all edible forms, parts and products of such animals.
3.2. "Factory vessel" means any vessel on board which fishery products undergo one or more of the following operations followed by wrapping or packaging and, if necessary, chilling or freezing: filleting, slicing, skinning, shelling, shucking, mincing or processing.
3.3. "Freezer vessel" means any vessel on board which freezing of fishery products is carried out, where appropriate after preparatory work such as bleeding, heading, gutting and removal of fins and, where necessary, followed by wrapping or packaging.
3.4. "Mechanically separated fishery product" means any product obtained by removing flesh from fishery products using mechanical means resulting in the loss or modification of the flesh structure.
3.5. "Fresh fishery products" means unprocessed fishery products, whether whole or prepared, including products packaged under vacuum or in a modified atmosphere, that have not undergone any treatment to ensure preservation other than chilling.
3.6. "Prepared fishery products" means unprocessed fishery products that have undergone an operation affecting their anatomical wholeness, such as gutting, heading, slicing, filleting, and chopping. 4. MILK
4.1. "Raw milk" means milk produced by the secretion of the mammary gland of farmed animals that has not been heated to more than 40°C or undergone any treatment that has an equivalent effect.
4.2. "Milk production holding" means an establishment where one or more farmed animals are kept to produce milk with a view to placing it on the market as food.
5. EGGS
5.1. "Eggs" means eggs in shell – other than broken, incubated or cooked eggs – that are produced by farmed birds and are fit for direct human consumption or for the preparation of egg products.
5.2. "Liquid egg" means unprocessed egg contents after removal of the shell.
5.3. "Cracked eggs" means eggs with damaged shell and intact membranes.
5.4. "Packing centre" means an establishment where eggs are graded by quality and weight.
6. FROGS' LEGS AND SNAILS
6.1. "Frogs' legs" means the posterior part of the body divided by a transverse cut behind the front limbs, eviscerated and skinned, of the species RNA (family Ranidae). 6.2. "Snails" means terrestrial gastropods of the species Helix pomatia Linné, Helix aspersa Muller, Helix lucorum and species of the family Achatinidae.
7. PROCESSED PRODUCTS
7.1. "Meat products" means processed products resulting from the processing of meat or from the further processing of such processed products, so that the cut surface shows that the product no longer has the characteristics of fresh meat.
7.2. "Dairy products" means processed products resulting from the processing of raw milk or from the further processing of such processed products.
7.3. "Egg products" means processed products resulting from the processing of eggs, or of various components or mixtures of eggs, or from the further processing of such processed products.
7.4. "Processed fishery products" means processed products resulting from the processing of fishery products or from the further processing of such processed products.
7.5. "Rendered animal fat" means fat derived from rendering meat, including bones, and intended for human consumption.
7.6. "Greaves" means the protein-containing residue of rendering, after partial separation of fat and water.
7.7. "Gelatine" means natural, soluble protein, gelling or non-gelling, obtained by the partial hydrolysis of collagen produced from bones, hides and skins, tendons and sinews of animals. 7.8. "Collagen" means the protein-based product derived from animal bones, hides, skins and tendons manufactured in accordance with the relevant requirements of this Regulation.
7.9. "Treated stomachs, bladders and intestines" means stomachs, bladders and intestines that have been submitted to a treatment such as salting, heating or drying after they have been obtained and after cleaning.
8. OTHER DEFINITIONS
8.1. "Products of animal origin" means:
- food of animal origin, including honey and blood;
- live bivalve molluscs, live echinoderms, live tunicates and live marine gastropods intended for human consumption; and
- other animals destined to be prepared with a view to being supplied live to the final consumer.
8.2. "Wholesale market" means a food business that includes several separate units which share common installations and sections where foodstuffs are sold to food business operators. ANNEX II
REQUIREMENTS CONCERNING SEVERAL PRODUCTS OF ANIMAL ORIGIN
SECTION I: IDENTIFICATION MARKING
When required in accordance with Article 5 or 6, and subject to the provisions of Annex III, food business operators must ensure that products of animal origin have an identification mark applied in compliance with the following provisions.
A. APPLICATION OF THE IDENTIFICATION MARK
1. The identification mark must be applied before the product leaves the establishment.
2. However, a new mark need not be applied to a product unless its packaging and/or wrapping is removed or it is further processed in another establishment, in which case the new mark must indicate the approval number of the establishment where these operations take place.
3. An identification mark is not necessary for eggs in respect of which Regulation (EC) No 1907/90\* lays down requirements concerning labelling or marking.
4. Food business operators must, in accordance with Article 18 of Regulation (EC) No 178/2002, have in place systems and procedures to identify food business operators from whom they have received, and to whom they have delivered, products of animal origin.
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- Council Regulation (EEC) No 1907/90 of 26 June 1990 on certain marketing standards for eggs (OJ L 173, 6.7.1990, p. 5). Regulation as last amended by Regulation (EC) No 2052/2003 (OJ L 305, 22.11.2003, p.1). B. FORM OF THE IDENTIFICATION MARK
5. The mark must be legible and indelible, and the characters easily decipherable. It must be clearly displayed for the competent authorities.
6. The mark must indicate the name of the country in which the establishment is located, which may be written out in full or shown as a two-letter code in accordance with the relevant ISO standard.
In the case of Member States, however, these codes are AT, BE, DE, DK, ES, FI, FR, GR, IE, IT, LU, NL, PT, SE and UK.
Food business operators may continue to use stocks and equipment that they ordered before the entry into force of this Regulation until they are exhausted or require replacement.
07. The mark must indicate the approval number of the establishment. If an establishment manufactures both food to which this Regulation applies and food to which it does not, the food business operator may apply the same identification mark to both types of food.
08. When applied in an establishment located within the Community, the mark must be oval in shape and include the abbreviation CE, EC, EF, EG, EK or EY. C. METHOD OF MARKING
09. The mark may, depending on the presentation of different products of animal origin, be applied directly to the product, the wrapping or the packaging, or be printed on a label affixed to the product, the wrapping or the packaging. The mark may also be an irremovable tag made of a resistant material.
10. In the case of packaging containing cut meat or offal, the mark must be applied to a label fixed to the packaging, or printed on the packaging, in such a way that it is destroyed when the packaging is opened. This is not necessary, however, if the process of opening destroys the packaging. When wrapping provides the same protection as packaging, the label may be affixed to the wrapping.
11. For products of animal origin that are placed in transport containers or large packages and are intended for further handling, processing, wrapping or packaging in another establishment, the mark may be applied to the external surface of the container or packaging.
12. In the case of liquid, granulate and powdered products of animal origin carried in bulk, and fishery products carried in bulk, an identification mark is not necessary if accompanying documentation contains the information specified in paragraphs 6, 7 and, where appropriate, 8.
13. When products of animal origin are placed in a package destined for direct supply to the final consumer, it is sufficient to apply the mark to the exterior of that package only.
14. When the mark is applied directly to products of animal origin, the colours used must be authorised in accordance with Community rules on the use of colouring substances in foodstuffs.
SECTION II: OBJECTIVES OF HACCP-BASED PROCEDURES
1. Food business operators operating slaughterhouses must ensure that the procedures that they have put in place in accordance with the general requirements of Article 5 of Regulation (EC) No …/2004 * meet the requirements that the hazard analysis shows to be necessary and the specific requirements listed in paragraph 2.
2. The procedures must guarantee that each animal or, where appropriate, each lot of animals accepted onto the slaughterhouse premises:
(a) is properly identified;
(b) is accompanied by the relevant information from the holding of provenance referred to in Section III;
(c) does not come from a holding or an area subject to a movement prohibition or other restriction for reasons of animal or public health, except when the competent authority so permits;
(d) is clean;
- Official Publications Office is to insert the official number of Regulation on the hygiene of foodstuffs. (e) is healthy, as far as the food business operator can judge; and
(f) is in a satisfactory state as regards welfare on arrival at the slaughterhouse.
3. In the event of failure to comply with any of the requirements listed under paragraph 2, the food business operator must notify the official veterinarian and take appropriate measures.
SECTION III: FOOD CHAIN INFORMATION
Food business operators operating slaughterhouses must, as appropriate, request, receive, check and act upon food chain information as set out in this Section in respect of all animals, other than wild game, sent or intended to be sent to the slaughterhouse.
1. Slaughterhouse operators must not accept animals onto the slaughterhouse premises unless they have requested and been provided with relevant food safety information contained in the records kept at the holding of provenance in accordance with Regulation (EC) No …/2004 \*.
2. Slaughterhouse operators must be provided with the information no less than 24 hours before the arrival of animals at the slaughterhouse, except in the circumstances mentioned in point 7.
3. The relevant food safety information referred to in point 1 is to cover, in particular:
(a) the status of the holding of provenance or the regional animal health status;
(b) the animals' health status;
- Official Publications Office is to insert the official number of Regulation on the hygiene of foodstuffs. (c) veterinary medicinal products or other treatments administered to the animals within a relevant period and with a withdrawal period greater than zero, together with their dates of administration and withdrawal periods;
(d) the occurrence of diseases that may affect the safety of meat;
(e) the results, if they are relevant to the protection of public health, of any analysis carried out on samples taken from the animals or other samples taken to diagnose diseases that may affect the safety of meat, including samples taken in the framework of the monitoring and control of zoonoses and residues;
(f) relevant reports about previous ante- and post-mortem inspections of animals from the same holding of provenance including, in particular, reports from the official veterinarian;
(g) production data, when this might indicate the presence of disease; and
(h) the name and address of the private veterinarian normally attending the holding of provenance. 4. (a) However, it is not necessary for the slaughterhouse operator to be provided with:
(i) the information referred to in point 3(a), (b), (f) and (h), if the operator is already aware of this information (for example, through a standing arrangement or a quality assurance scheme); or
(ii) the information referred to in point 3(a), (b), (f) and (g), if the producer declares that there is no relevant information to report.
(b) The information need not be provided as a verbatim extract from the records of the holding of provenance. It may be provided through electronic data exchange or in the form of a standardised declaration signed by the producer.
5. Food business operators deciding to accept animals onto the slaughterhouse premises after evaluating the relevant food chain information must make it available to the official veterinarian without delay and, except in the circumstances mentioned in point 7, no less than 24 hours before the arrival of the animal or lot. The food business operator must notify the official veterinarian of any information that gives rise to health concerns before ante-mortem inspection of the animal concerned.
6. If any animal arrives at the slaughterhouse without food chain information, the operator must immediately notify the official veterinarian. Slaughter of the animal may not take place until the official veterinarian so permits.
7. If the competent authority so permits, food chain information may accompany the animals to which it relates to the slaughterhouse, rather than arriving at least 24 hours in advance, in the case of:
(a) porcine animals, poultry or farmed game that have undergone ante-mortem inspection at the holding of provenance, if a certificate that the veterinarian has signed stating that he or she examined the animals at the holding and found them to be healthy accompanies them;
(b) domestic solipeds;
(c) animals that have undergone emergency slaughter, if a declaration, that the veterinarian has signed recording the favourable outcome of the ante-mortem inspection accompanies them; and
(d) animals that are not delivered directly from the holding of provenance to the slaughterhouse.
Slaughterhouse operators must evaluate the relevant information. If they accept the animals for slaughter, they must give the documents mentioned in subparagraphs (a) and (c) to the official veterinarian. Slaughter or dressing of the animals may not take place until the official veterinarian so permits. 8. Food business operators must check passports accompanying domestic solipeds to ensure that the animal is intended for slaughter for human consumption. If they accept the animal for slaughter, they must give the passport to the official veterinarian." SPECIFIC REQUIREMENTS
SECTION I: MEAT OF DOMESTIC UNGULATES
CHAPTER I: TRANSPORT OF LIVE ANIMALS TO THE SLAUGHTERHOUSE
Food business operators transporting live animals to slaughterhouses must ensure compliance with the following requirements.
1. During collection and transport, animals must be handled carefully without causing unnecessary distress.
2. Animals showing symptoms of disease or originating in herds known to be contaminated with agents of public health importance may only be transported to the slaughterhouse when the competent authority so permits.
CHAPTER II: REQUIREMENTS FOR SLAUGHTERHOUSES
Food business operators must ensure that the construction, layout and equipment of slaughterhouses in which domestic ungulates are slaughtered meet the following requirements.
1. (a) Slaughterhouses must have adequate and hygienic lairage facilities or, climate permitting, waiting pens that are easy to clean and disinfect. These facilities must be equipped for watering the animals and, if necessary, feeding them. The drainage of the wastewater must not compromise food safety. (b) They must also have separate lockable facilities or, climate permitting, pens for sick or suspect animals with separate draining and sited in such a way as to avoid contamination of other animals, unless the competent authority considers that such facilities are unnecessary.
(c) The size of the lairage facilities must ensure that the welfare of the animals is respected. Their layout must facilitate ante-mortem inspections, including the identification of the animals or groups of animals.
2. To avoid contaminating meat, they must:
(a) have a sufficient number of rooms, appropriate to the operations being carried out;
(b) have a separate room for the emptying and cleaning of stomachs and intestines, unless the competent authority authorises the separation in time of these operations within a specific slaughterhouse on a case-by-case basis;
(c) ensure separation in space or time of the following operations:
(i) stunning and bleeding;
(ii) in the case of porcine animals, scalding, depilation, scraping and singeing;
(iii) evisceration and further dressing;
(iv) handling clean guts and tripe; (v) preparation and cleaning of other offal, particularly the handling of skinned heads if it does not take place at the slaughter line;
(vi) packaging offal; and
(vii) dispatching meat;
(d) have installations that prevent contact between the meat and the floors, walls and fixtures; and
(e) have slaughter lines (where operated) that are designed to allow constant progress of the slaughter process and to avoid cross-contamination between the different parts of the slaughter line. Where more than one slaughter line is operated in the same premises, there must be adequate separation of the lines to prevent cross-contamination.
3. They must have facilities for disinfecting tools with hot water supplied at not less than 82°C, or an alternative system having an equivalent effect.
4. The equipment for washing hands used by the staff engaged in handling exposed meat must have taps designed to prevent the spread of contamination.
5. There must be lockable facilities for the refrigerated storage of detained meat and separate lockable facilities for the storage of meat declared unfit for human consumption.
6. There must be a separate place with appropriate facilities for the cleaning, washing and disinfection of means of transport for livestock. However, slaughterhouses need not have these places and facilities if the competent authority so permits and official authorised places and facilities exist nearby.
7. They must have lockable facilities reserved for the slaughter of sick and suspect animals. This is not essential if this slaughter takes place in other establishments authorised by the competent authority for this purpose, or at the end of the normal slaughter period.
8. If manure or digestive tract content is stored in the slaughterhouse, there must be a special area or place for that purpose.
9. They must have an adequately equipped lockable facility or, where needed, room for the exclusive use of the veterinary service.
CHAPTER III: REQUIREMENTS FOR CUTTING PLANTS
Food business operators must ensure that cutting plants handling meat of domestic ungulates:
1. are constructed so as to avoid contamination of meat, in particular by:
(a) allowing constant progress of the operations; or
(b) ensuring separation between the different production batches;
2. have rooms for the separate storage of packaged and exposed meat, unless stored at different times or in such a way that the packaging material and the manner of storage cannot be a source of contamination for the meat;
3. have cutting rooms equipped to ensure compliance with the requirements laid down in Chapter V;
4. have equipment for washing hands with taps designed to prevent the spread of contamination, for use by staff engaged in handling exposed meat; and
5. have facilities for disinfecting tools with hot water supplied at not less than 82°C, or an alternative system having an equivalent effect.
CHAPTER IV: SLAUGHTER HYGIENE
Food business operators operating slaughterhouses in which domestic ungulates are slaughtered must ensure compliance with the following requirements.
1. After arrival in the slaughterhouse, the slaughter of the animals must not be unduly delayed. However, where required for welfare reasons, animals must be given a resting period before slaughter.
2. (a) Meat from animals other than those referred to in subparagraphs (b) and (c) must not be used for human consumption if they die otherwise than by being slaughtered in the slaughterhouse. (b) Only live animals intended for slaughter may be brought into the slaughter premises, with the exception of:
(i) animals that have undergone emergency slaughter outside the slaughterhouse in accordance with Chapter VI;
(ii) animals slaughtered at the place of production in accordance with Section III; and
(iii) wild game, in compliance with Section IV, Chapter II.
(c) Meat from animals that undergo slaughter following an accident in a slaughterhouse may be used for human consumption if, on inspection, no serious lesions other than those due to the accident are found.
3. The animals or, where appropriate, each batch of animals sent for slaughter must be identified so that their origin can be traced.
4. Animals must be clean.
5. Slaughterhouse operators must follow the instructions of the veterinarian appointed by the competent authority in accordance with Regulation (EC) No…/2004 * to ensure that ante-mortem inspection of every animal to be slaughtered is carried out under suitable conditions.
- Official Publications Office is to insert the official number of Regulation on the organisation of official controls.
6. Animals brought into the slaughter hall must be slaughtered without undue delay.
7. Stunning, bleeding, skinning, evisceration and other dressing must be carried out without undue delay and in a manner that avoids contaminating the meat. In particular:
(a) the trachea and oesophagus must remain intact during bleeding, except in the case of slaughter according to a religious custom;
(b) during the removal of hides and fleece:
(i) contact between the outside of the skin and the carcase must be prevented; and
(ii) operators and equipment coming into contact with the outer surface of hides and fleece must not touch the meat;
(c) measures must be taken to prevent the spillage of digestive tract content during and after evisceration and to ensure that evisceration is completed as soon as possible after stunning; and
(d) removal of the udder must not result in contamination of the carcase with milk or colostrum. 8. Complete skinning of the carcase and other parts of the body intended for human consumption must be carried out, except for porcine animals and the heads and feet of ovine and caprine animals and calves. Heads and feet must be handled so as to avoid contamination of other meat.
09. When not skinned, porcine animals must have their bristles removed immediately. The risk of contamination of the meat with scalding water must be minimised. Only approved additives may be used for this operation. Porcine animals must be thoroughly rinsed afterwards with potable water.
10. The carcases must not contain visible faecal contamination. Any visible contamination must be removed without delay by trimming or alternative means having an equivalent effect.
11. Carcases and offal must not come into contact with floors, walls or work stands.
12. Slaughterhouse operators must follow the instructions of the competent authority to ensure that post-mortem inspection of all slaughtered animals is carried out under suitable conditions in accordance with Regulation (EC) No…/2004.
13. Until post-mortem inspection is completed, parts of a slaughtered animal subject to such inspection must:
(a) remain identifiable as belonging to a given carcase; and
- Official Publications Office is to insert the official number of Regulation on the organisation of official controls. (b) come into contact with no other carcase, offal or viscera, including those that have already undergone post-mortem inspection.
However, provided that it shows no pathological lesion, the penis may be discarded immediately.
14. Both kidneys must be removed from their fatty covering. In the case of bovine and porcine animals, and solipeds, the peri-renal capsule must also be removed.
15. If the blood or other offal of several animals is collected in the same container before completion of post-mortem inspection, the entire contents must be declared unfit for human consumption if the carcase of one or more of the animals concerned has been declared unfit for human consumption.
16. After post-mortem inspection:
(a) the tonsils of bovine animals and solipeds must be removed hygienically;
(b) parts unfit for human consumption must be removed as soon as possible from the clean sector of the establishment;
(c) meat detained or declared unfit for human consumption and inedible by-products must not come into contact with meat declared fit for human consumption; and (d) viscera or parts of viscera remaining in the carcase, except for the kidneys, must be removed entirely and as soon as possible, unless the competent authority authorises otherwise.
17. After completion of slaughter and post-mortem inspection, the meat must be stored in accordance with the requirements laid down in Chapter VII.
18. When destined for further handling:
(a) stomachs must be scalded or cleaned;
(b) intestines must be emptied and cleaned; and
(c) heads and feet must be skinned or scalded and depilated.
19. Where establishments are approved for the slaughter of different animal species or for the handling of carcases of farmed game and wild game, precautions must be taken to prevent cross-contamination by separation either in time or in space of operations carried out on the different species. Separate facilities for the reception and storage of unskinned carcases of farmed game slaughtered at the farm and for wild game must be available.
20. If the slaughterhouse does not have lockable facilities reserved for the slaughter of sick or suspect animals, the facilities used to slaughter such animals must be cleaned, washed and disinfected under official supervision before the slaughter of other animals is resumed. CHAPTER V: HYGIENE DURING CUTTING AND BONING
Food business operators must ensure that cutting and boning of meat of domestic ungulates takes place in accordance with the following requirements.
1. Carcases of domestic ungulates may be cut into half-carcases or quarters, and half carcases into no more than three wholesale cuts, in slaughterhouses. Further cutting and boning must be carried out in a cutting plant.
2. The work on meat must be organised in such a way as to prevent or minimise contamination. To this end, food business operators must ensure in particular that:
(a) meat intended for cutting is brought into the workrooms progressively as needed;
(b) during cutting, boning, trimming, slicing, dicing, wrapping and packaging, the meat is maintained at not more than 3°C for offal and 7°C for other meat, by means of an ambient temperature of not more than 12°C or an alternative system having an equivalent effect; and
(c) where the premises are approved for the cutting of meat of different animal species, precautions are taken to avoid cross-contamination, where necessary by separation of the operations on the different species in either space or time.
3. However, meat may be boned and cut before it reaches the temperature referred to in point 2(b) in accordance with Chapter VII, point 3.
4. Meat may also be boned and cut prior to reaching the temperature referred to in point 2(b) when the cutting room is on the same site as the slaughter premises. In this case, the meat must be transferred to the cutting room either directly from the slaughter premises or after a waiting period in a chilling or refrigerating room. As soon as it is cut and, where appropriate, packaged, the meat must be chilled to the temperature referred to in point 2(b).
CHAPTER VI: EMERGENCY SLAUGHTER OUTSIDE THE SLAUGHTERHOUSE
Food business operators must ensure that meat from domestic ungulates that have undergone emergency slaughter outside the slaughterhouse may be used for human consumption only if it complies with all the following requirements.
1. An otherwise healthy animal must have suffered an accident that prevented its transport to the slaughterhouse for welfare reasons.
2. A veterinarian must carry out an ante-mortem inspection of the animal.
3. The slaughtered and bled animal must be transported to the slaughterhouse hygienically and without undue delay. Removal of the stomach and intestines, but no other dressing, may take place on the spot, under the supervision of the veterinarian. Any viscera removed must accompany the slaughtered animal to the slaughterhouse and be identified as belonging to that animal.
4. If more than two hours elapse between slaughter and arrival at the slaughterhouse, the animal must be refrigerated. Where climatic conditions so permit, active chilling is not necessary.
5. A declaration by the food business operator who reared the animal, stating the identity of the animal and indicating any veterinary products or other treatments administered to the animal, dates of administration and withdrawal periods, must accompany the slaughtered animal to the slaughterhouse.
6. A declaration issued by the veterinarian recording the favourable outcome of the ante-mortem inspection, the date and time of, and reason for, emergency slaughter, and the nature of any treatment administered by the veterinarian to the animal, must accompany the slaughtered animal to the slaughterhouse.
7. The slaughtered animal must be fit for human consumption following post-mortem inspection carried out in the slaughterhouse in accordance with Regulation (EC) No…/2004 \*, including any additional tests required in the case of emergency slaughter.
8. Food business operators must follow any instructions that the official veterinarian may give after post-mortem inspection concerning the use of the meat.
9. Food business operators may not place meat from animals having undergone emergency slaughter on the market unless it bears a special health mark which cannot be confused either with the health mark provided for in Regulation (EC) No…/2004 * or with the identification mark provided for in Annex II, Section I to this Regulation. Such meat may be placed on the market only in the Member State where slaughter takes place and in accordance with national law.
- Official Publications Office is to insert the official number of Regulation on the organisation of official controls. CHAPTER VII: STORAGE AND TRANSPORT
Food business operators must ensure that the storage and transport of meat of domestic ungulates takes place in accordance with the following requirements.
1. (a) Unless other specific provisions provide otherwise, post-mortem inspection must be followed immediately by chilling in the slaughterhouse to ensure a temperature throughout the meat of not more than 3°C for offal and 7°C for other meat along a chilling curve that ensures a continuous decrease of the temperature. However, meat may be cut and boned during chilling in accordance with Chapter V, point 4.
(b) During the chilling operations, there must be adequate ventilation to prevent condensation on the surface of the meat.
2. Meat must attain the temperature specified in point 1 and remain at that temperature during storage.
3. Meat must attain the temperature specified in point 1 before transport, and remain at that temperature during transport. However, transport may also take place if the competent authority so authorises to enable the production of specific products, provided that:
(a) such transport takes place in accordance with the requirements that the competent authority specifies in respect of transport from one given establishment to another; and
(b) the meat leaves the slaughterhouse, or a cutting room on the same site as the slaughter premises, immediately and transport takes no more than two hours. 4. Meat intended for freezing must be frozen without undue delay, taking into account where necessary a stabilisation period before freezing.
5. Exposed meat must be stored and transported separately from packaged meat, unless stored or transported at different times or in such a way that the packaging material and the manner of storage or transport cannot be a source of contamination for the meat.
SECTION II: MEAT FROM POULTRY AND LAGOMORPHS
CHAPTER I: TRANSPORT OF LIVE ANIMALS TO THE SLAUGHTERHOUSE
Food business operators transporting live animals to slaughterhouses must ensure compliance with the following requirements.
1. During collection and transport, animals must be handled carefully without causing unnecessary distress.
2. Animals showing symptoms of disease or originating in flocks known to be contaminated with agents of public-health importance may only be transported to the slaughterhouse when permitted by the competent authority.
3. Crates for delivering animals to the slaughterhouse and modules, where used, must be made of non-corrodible material and be easy to clean and disinfect. Immediately after emptying and, if necessary, before re-use, all equipment used for collecting and delivering live animals must be cleaned, washed and disinfected. CHAPTER II: REQUIREMENTS FOR SLAUGHTERHOUSES
Food business operators must ensure that the construction, layout and equipment of slaughterhouses in which poultry or lagomorphs are slaughtered meet the following requirements.
1. They must have a room or covered space for the reception of the animals and for their inspection before slaughter.
2. To avoid contaminating meat, they must:
(a) have a sufficient number of rooms, appropriate to the operations being carried out;
(b) have a separate room for evisceration and further dressing, including the addition of seasonings to whole poultry carcases, unless the competent authority authorises separation in time of these operations within a specific slaughterhouse on a case-by-case basis;
(c) ensure separation in space or time of the following operations:
(i) stunning and bleeding;
(ii) plucking or skinning, and any scalding; and
(iii) dispatching meat; (d) have installations that prevent contact between the meat and the floors, walls and fixtures; and
(e) have slaughter lines (where operated) that are designed to allow a constant progress of the slaughter process and to avoid cross-contamination between the different parts of the slaughter line. Where more than one slaughter line is operated in the same premises, there must be adequate separation of the lines to prevent cross-contamination.
3. They must have facilities for disinfecting tools with hot water supplied at not less than 82°C, or an alternative system having an equivalent effect.
4. The equipment for washing hands used by the staff engaged in handling exposed meat must have taps designed to prevent the spread of contamination.
5. There must be lockable facilities for the refrigerated storage of detained meat and separate lockable facilities for the storage of meat declared unfit for human consumption.
6. There must be a separate place with appropriate facilities for the cleaning, washing and disinfection of:
(a) transport equipment such as crates; and
(b) means of transport.
These places and facilities are not compulsory for (b) if officially authorised places and facilities exist nearby. 7. They must have an adequately equipped lockable facility or, where needed, room for the exclusive use of the veterinary service.
CHAPTER III: REQUIREMENTS FOR CUTTING PLANTS
1. Food business operators must ensure that cutting plants handling meat from poultry or lagomorphs:
(a) are constructed so as to avoid contamination of meat, in particular by:
(i) allowing constant progress of the operations; or
(ii) ensuring separation between the different production batches;
(b) have rooms for the separate storage of packaged and exposed meat, unless stored at different times or in such a way that the packaging material and the manner of storage cannot be a source of contamination for the meat;
(c) have cutting rooms equipped to ensure compliance with the requirements laid down in Chapter V;
(d) have equipment for washing hands used by staff handling exposed meat with taps designed to prevent the spread of contamination; and
(e) have facilities for disinfecting tools with hot water supplied at not less than 82°C, or an alternative system having an equivalent effect.
2. If the following operations are undertaken in a cutting plant:
(a) the evisceration of geese and ducks reared for the production of "foie gras", which have been stunned, bled and plucked on the fattening farm; or
(b) the evisceration of delayed eviscerated poultry,
food business operators must ensure that separate rooms are available for that purpose.
CHAPTER IV: SLAUGHTER HYGIENE
Food business operators operating slaughterhouses in which poultry or lagomorphs are slaughtered must ensure compliance with the following requirements.
1. (a) Meat from animals other than those referred to in (b) must not be used for human consumption if they die otherwise than by being slaughtered in the slaughterhouse.
(b) Only live animals intended for slaughter may be brought into the slaughter premises, with the exception of:
(i) delayed eviscerated poultry, geese and ducks reared for the production of "foie gras" and birds that are not considered as domestic but which are farmed as domestic animals, if slaughtered at the farm in accordance with Chapter VI; (ii) farmed game slaughtered at the place of production in accordance with Section III; and
(iii) small wild game in accordance with Section IV, Chapter III.
2. Slaughterhouse operators must follow the instructions of the competent authority to ensure that ante-mortem inspection is carried out under suitable conditions.
3. Where establishments are approved for the slaughter of different animal species or for the handling of farmed ratites and small wild game, precautions must be taken to prevent cross contamination by separation either in time or in space of the operations carried out on the different species. Separate facilities for the reception and storage of carcases of farmed ratites slaughtered at the farm and for small wild game must be available.
4. Animals brought into the slaughter room must be slaughtered without undue delay.
5. Stunning, bleeding, skinning or plucking, evisceration and other dressing must be carried out without undue delay in such a way that contamination of the meat is avoided. In particular, measures must be taken to prevent the spillage of digestive tract contents during evisceration.
6. Slaughterhouse operators must follow the instructions of the competent authority to ensure that the post-mortem inspection is carried out under suitable conditions, and in particular that slaughtered animals can be inspected properly.
7. After post-mortem inspection:
(a) parts unfit for human consumption must be removed as soon as possible from the clean sector of the establishment;
(b) meat detained or declared unfit for human consumption and inedible by-products must not come into contact with meat declared fit for human consumption; and
(c) viscera or parts of viscera remaining in the carcase, except for the kidneys, must be removed entirely, if possible, and as soon as possible, unless otherwise authorised by the competent authority.
8. After inspection and evisceration, slaughtered animals must be cleaned and chilled to not more than 4°C as soon as possible, unless the meat is cut while warm.
9. When carcases are subjected to an immersion chilling process, account must be taken of the following.
(a) Every precaution must be taken to avoid contamination of carcases, taking into account parameters such as carcase weight, water temperature, volume and direction of water flow and chilling time.
(b) Equipment must be entirely emptied, cleaned and disinfected whenever this is necessary and at least once a day. 10. Sick or suspect animals, and animals slaughtered in application of disease eradication or control programmes, must not be slaughtered in the establishment except when permitted by the competent authority. In that event, slaughter must be performed under official supervision and steps taken to prevent contamination; the premises must be cleaned and disinfected before being used again.
CHAPTER V: HYGIENE DURING AND AFTER CUTTING AND BONING
Food business operators must ensure that cutting and boning of meat of poultry and lagomorphs takes place in accordance with the following requirements.
1. The work on meat must be organised in such a way as to prevent or minimise contamination. To this end, food business operators must ensure in particular that:
(a) meat intended for cutting is brought into the workrooms progressively as needed;
(b) during cutting, boning, trimming, slicing, dicing, wrapping and packaging, the temperature of the meat is maintained at not more than 4°C by means of an ambient temperature of 12°C or an alternative system having an equivalent effect; and
(c) where the premises are approved for the cutting of meat of different animal species, precautions are taken to avoid cross-contamination, where necessary by separation of the operations on the different species in either space or time.
2. However, meat may be boned and cut prior to reaching the temperature referred to in point 1(b) when the cutting room is on the same site as the slaughter premises, provided that it is transferred to the cutting room either:
(a) directly from the slaughter premises; or
(b) after a waiting period in a chilling or refrigerating room.
3. As soon as it is cut and, where appropriate, packaged, the meat must be chilled to the temperature referred to in point 1(b).
4. Exposed meat must be stored and transported separately from packaged meat, unless stored or transported at different times or in such a way that the packaging material and the manner of storage or transport cannot be a source of contamination for the meat.
CHAPTER VI: SLAUGHTER ON THE FARM
Food business operators may slaughter poultry referred to in Chapter IV, point 1(b)(i), on the farm only with the authorisation of the competent authority and in compliance with the following requirements.
1. The farm must undergo regular veterinary inspection.
2. The food business operator must inform the competent authority in advance of the date and time of slaughter.
3. The holding must have facilities for concentrating the birds to allow an ante-mortem inspection of the group to be made.
4. The holding must have premises suitable for the hygienic slaughter and further handling of the birds.
5. Animal welfare requirements must be complied with.
6. The slaughtered birds must be accompanied to the slaughterhouse by a declaration by the food business operator who reared the animal indicating any veterinary products or other treatments administered to the animal, dates of administration and withdrawal periods, and the date and time of slaughter.
7. The slaughtered animal must be accompanied to the slaughterhouse by a certificate issued by the official veterinarian or approved veterinarian in accordance with Regulation (EC) No …/2004 \*.
8. In the case of poultry reared for the production of "foie gras", the uneviscerated birds must be transported immediately and, if necessary, refrigerated to a slaughterhouse or cutting plant. They must be eviscerated within 24 hours of slaughter under the supervision of the competent authority.
9. Delayed eviscerated poultry obtained at the farm of production may be kept for up to 15 days at a temperature of not more than 4°C. It must then be eviscerated in a slaughterhouse or in a cutting plant located in the same Member State as the farm of production.
- Official Publications Office is to insert the official number of Regulation on the organisation of official controls. SECTION III: MEAT OF FARMED GAME
1. The provisions of Section I apply to the production and placing on the market of meat from even-toed farmed game mammals (Crevice and Suede), unless the competent authority considers them inappropriate.
2. The provisions of Section II apply to the production and placing on the market of meat from ratites. However, those of Section I apply where the competent authority considers them appropriate. Appropriate facilities must be provided, adapted to the size of the animals.
3. Notwithstanding points 1 and 2, food business operators may slaughter farmed ratites and farmed ungulates referred to in point 1 at the place of origin with the authorisation of the competent authority if:
(a) the animals cannot be transported, to avoid any risk for the handler or to protect the welfare of the animals;
(b) the herd undergoes regular veterinary inspection;
(c) the owner of the animals submits a request;
(d) the competent authority is informed in advance of the date and time of slaughter of the animals;
(e) the holding has procedures for concentrating the animals to allow an ante-mortem inspection of the group to be made; (f) the holding has facilities suitable for the slaughter, bleeding and, where ratites are to be plucked, plucking of the animals;
(g) animal welfare requirements are complied with;
(h) slaughtered and bled animals are transported to the slaughterhouse hygienically and without undue delay. If transport takes more than two hours, the animals are, if necessary, refrigerated. Evisceration may take place on the spot, under the supervision of the veterinarian;
(i) a declaration by the food business operator who reared the animals, stating their identity and indicating any veterinary products or other treatments administered, dates of administration and withdrawal periods, accompanies the slaughtered animals to the slaughterhouse; and
(j) during transport to the approved establishment, a certificate issued and signed by the official veterinarian or approved veterinarian, attesting to a favourable result of the ante-mortem inspection, correct slaughter and bleeding and the date and time of slaughter, accompanies the slaughtered animals.
4. Food business operators may also slaughter bison on the farm in accordance with paragraph 3 in exceptional circumstances. SECTION IV: WILD GAME MEAT
CHAPTER I: TRAINING OF HUNTERS IN HEALTH AND HYGIENE
1. Persons who hunt wild game with a view to placing it on the market for human consumption must have sufficient knowledge of the pathology of wild game, and of the production and handling of wild game and wild game meat after hunting, to undertake an initial examination of wild game on the spot.
2. It is however enough if at least one person of a hunting team has the knowledge referred to in paragraph 1. References in this Section to a "trained person" are references to that person.
3. The trained person could also be the gamekeeper or the game manager if he or she is part of the hunting team or located in the immediate vicinity of where hunting is taking place. In the latter case, the hunter must present the wild game to the gamekeeper or game manager and inform them of any abnormal behaviour observed before killing.
4. Training must be provided to the satisfaction of the competent authority to enable hunters to become trained persons. It should cover at least the following subjects:
(a) the normal anatomy, physiology and behaviour of wild game;
(b) abnormal behaviour and pathological changes in wild game due to diseases, environmental contamination or other factors which may affect human health after consumption; (c) the hygiene rules and proper techniques for the handling, transportation, evisceration etc. of wild game animals after killing; and
(d) legislation and administrative provisions on the animal and public health and hygiene conditions governing the placing on the market of wild game.
5. The competent authority should encourage hunters' organisations to provide such training.
CHAPTER II: HANDLING OF LARGE WILD GAME
1. After killing, large wild game must have their stomachs and intestines removed as soon as possible and, if necessary, be bled.
2. The trained person must carry out an examination of the body, and of any viscera removed, to identify any characteristics that may indicate that the meat presents a health risk. The examination must take place as soon as possible after killing.
3. Meat of large wild game may be placed on the market only if the body is transported to a game-handling establishment as soon as possible after the examination referred to in point 2. The viscera must accompany the body as specified in point 4. The viscera must be identifiable as belonging to a given animal.
4. (a) If no abnormal characteristics are found during the examination referred to in paragraph 2, no abnormal behaviour was observed before killing, and there is no suspicion of environmental contamination, the trained person must attach to the animal body a numbered declaration stating this. This declaration must also indicate the date, time and place of killing. In this case, the head and the viscera need not accompany the body, except in the case of species susceptible to Trichinosis (porcine animals, solipeds and others), whose head (except for tusks) and diaphragm must accompany the body. However, hunters must comply with any additional requirements imposed in the Member State where hunting takes place, in particular to permit the monitoring of certain residues and substances in accordance with Directive 96/23/EC;
(b) In other circumstances, the head (except for tusks, antlers and horns) and all the viscera except for the stomach and intestines must accompany the body. The trained person who carried out the examination must inform the competent authority of the abnormal characteristics, abnormal behaviour or suspicion of environmental contamination that prevented him or her from making a declaration in accordance with (a);
(c) If no trained person is available to carry out the examination referred to in paragraph 2 in a particular case, the head (except for tusks, antlers and horns) and all the viscera except for the stomach and the intestines must accompany the body. 5. Chilling must begin within a reasonable period of time after killing and achieve a temperature throughout the meat of not more than 7°C. Where climatic conditions so permit, active chilling is not necessary.
6. During transport to the game-handling establishment, heaping must be avoided.
7. Large wild game delivered to a game-handling establishment must be presented to the competent authority for inspection.
8. In addition, unskinned large wild game may be skinned and placed on the market only if:
(a) before skinning, it is stored and handled separately from other food and not frozen; and
(b) after skinning, it undergoes a final inspection in accordance with Regulation (EC) No …/2004 \*
9. The rules laid down in Section I, Chapter V, apply to the cutting and boning of large wild game.
CHAPTER III: HANDLING OF SMALL WILD GAME
1. The trained person must carry out an examination to identify any characteristics that may indicate that the meat presents a health risk. The examination must take place as soon as possible after killing.
- Official Publications Office is to insert the official number of Regulation on the organisation of official controls.
2. If abnormal characteristics are found during the examination, abnormal behaviour was observed before killing, or environmental contamination is suspected, the trained person must inform the competent authority.
3. Meat of small wild game may be placed on the market only if the body is transported to a game-handling establishment as soon as possible after the examination referred to in point 1.
4. Chilling must begin within a reasonable period of time of killing and achieve a temperature throughout the meat of not more than 4°C. Where climatic conditions so permit, active chilling is not necessary.
5. Evisceration must be carried out, or completed, without undue delay upon arrival at the game-handling establishment, unless the competent authority permits otherwise.
6. Small wild game delivered to a game-handling establishment must be presented to the competent authority for inspection.
7. The rules laid down in Section II, Chapter V, apply to the cutting and boning of small wild game. CHAPTER I: REQUIREMENTS FOR PRODUCTION ESTABLISHMENTS
Food business operators operating establishments producing minced meat, meat preparations or MSM must ensure that they:
1. are constructed so as to avoid contamination of meat and products, in particular by:
(a) allowing constant progress of the operations; or
(b) ensuring separation between the different production batches;
2. have rooms for the separate storage of packaged and exposed meat and products, unless stored at different times or in such a way that the packaging material and the manner of storage cannot be a source of contamination for the meat or products;
3. have rooms equipped to ensure compliance with the temperature requirements laid down in Chapter III;
4. have equipment for washing hands used by staff handling exposed meat and products with taps designed to prevent the spread of contamination; and
5. have facilities for disinfecting tools with hot water supplied at not less than 82°C, or an alternative system having an equivalent effect. CHAPTER II: REQUIREMENTS FOR RAW MATERIAL
Food business operators producing minced meat, meat preparations or MSM must ensure that the raw materials used satisfy the following requirements.
1. The raw material used to prepare minced meat must meet the following requirements.
(a) It must comply with the requirements for fresh meat;
(b) It must derive from skeletal muscle, including adherent fatty tissues;
(c) It must not derive from:
(i) scrap cuttings and scrap trimmings (other than whole muscle cuttings);
(ii) MSM;
(iii) meat containing bone fragments or skin; or
(iv) meat of the head with the exception of the masseters, the non-muscular part of the linea alba, the region of the carpus and the tarsus, bone scrapings and the muscles of the diaphragm (unless the serosa has been removed).
2. The following raw material may be used to prepare meat preparations:
(a) fresh meat; (b) meat meeting the requirements of point 1; and
(c) if the meat preparation is clearly not intended to be consumed without first undergoing heat treatment:
(i) meat derived from the mincing or fragmentation of meat meeting the requirements of point 1 other than point 1(c)(i); and
(ii) MSM meeting the requirements of Chapter III, point 3(d).
3. The raw material used to produce MSM must meet the following requirements.
(a) It must comply with the requirements for fresh meat;
(b) The following material must not be used to produce MSM:
(i) for poultry, the feet, neckskin and head; and
(ii) for other animals, the bones of the head, feet, tails, femur, tibia, fibula, humerus, radius and ulna. CHAPTER III: HYGIENE DURING AND AFTER PRODUCTION
Food business operators producing minced meat, meat preparations or MSM must ensure compliance with the following requirements.
1. The work on meat must be organised in such a way as to prevent or minimise contamination. To this end, food business operators must ensure in particular that the meat used is:
(a) at a temperature of not more than 4°C for poultry, 3°C for offal and 7°C for other meat; and
(b) brought into the preparation room progressively as needed.
2. The following requirements apply to the production of minced meat and meat preparations.
(a) Unless the competent authority authorises boning immediately before mincing, frozen or deep-frozen meat used for the preparation of minced meat or meat preparations must be boned before freezing. It may be stored only for a limited period.
(b) When prepared from chilled meat, minced meat must be prepared:
(i) in the case of poultry, within no more than 3 days of their slaughter;
(ii) in the case of animal other than poultry, within no more than 6 days of their slaughter; or (iii) within no more than 15 days from the slaughter of the animals in the case of boned, vacuum-packed beef and veal.
(c) Immediately after production, minced meat and meat preparations must be wrapped or packaged and be:
(i) chilled to an internal temperature of not more than 2°C for minced meat and 4°C for meat preparations; or
(ii) frozen to an internal temperature of not more than -18°C.
These temperature conditions must be maintained during storage and transport.
3. The following requirements apply to the production and use of MSM produced using techniques that do not alter the structure of the bones used in the production of MSM and the calcium content of which is not significantly higher than that of minced meat.
(a) Raw material for deboning from an on-site slaughterhouse must be no more than 7 days old; otherwise, raw material for deboning must be no more than 5 days old. However, poultry carcases must be no more than 3 days old.
(b) Mechanical separation must take place immediately after deboning.
(c) If not used immediately after being obtained, MSM must be wrapped or packaged and then chilled to a temperature of not more than 2°C or frozen to an internal temperature of not more than -18°C. These temperature requirements must be maintained during storage and transport. (d) If the food business operator has carried out analyses demonstrating that MSM complies with the microbiological criteria for minced meat adopted in accordance with Regulation (EC) No…/2004, it may be used in meat preparations that are clearly not intended to be consumed without first undergoing heat treatment and in meat products.
(e) MSM not shown to comply with the criteria referred to in (d) may be used only to manufacture heat-treated meat products in establishments approved in accordance with this Regulation.
4. The following requirements apply to the production and use of MSM produced using techniques other than those mentioned in point 3.
(a) Raw material for deboning from an on-site slaughterhouse must be no more than 7 days old; otherwise, raw material for deboning must be no more than 5 days old. However, poultry carcases must be no more than 3 days old.
(b) If mechanical separation does not take place immediately after deboning the flesh-bearing bones must be stored and transported at a temperature of not more than 2°C or, if frozen, at a temperature of not more than -18°C.
(c) Flesh-bearing bones obtained from frozen carcases must not be refrozen.
(d) If not used within one hour of being obtained, MSM must be chilled immediately to a temperature of not more than 2°C.
- Official Publications Office is to insert the official number of Regulation on the hygiene of foodstuffs. (e) If, after chilling, MSM is not processed within 24 hours, it must be frozen within 12 hours of production and reach an internal temperature of not more than -18°C within six hours.
(f) Frozen MSM must be wrapped or packaged before storage or transport, must not be stored for more than three months and must be maintained at a temperature of not more than –18°C during storage and transport.
(g) MSM may be used only to manufacture heat-treated meat products in establishments approved in accordance with this Regulation.
5. Minced meat, meat preparations and MSM must not be re-frozen after thawing.
CHAPTER IV: LABELLING
1. In addition to the requirements of Directive 2000/13/EC \*, food business operators must ensure compliance with the requirement of point 2 if, and to the extent that, national rules in the Member State in the territory of which the product is placed on the market so require.
2. Packages intended for supply to the final consumer containing minced meat from poultry or solipeds or meat preparations containing MSM must bear a notice indicating that such products should be cooked before consumption.
- Directive 2000/13/EC of the European Parliament and of the Council of 20 March 2000 on the approximation of the laws of the Member States relating to the labelling, presentation and advertising of foodstuffs (OJ L 109, 6.5.2000, p. 29). Directive as last amended by Directive 2003/89/EC (OJ L 308, 25.11.2001, p. 15). SECTION VI: MEAT PRODUCTS
1. Food business operators must ensure that the following items are not used in the preparation of meat products:
(a) genital organs of either female or male animals, except testicles;
(b) urinary organs, except the kidneys and the bladder;
(c) the cartilage of the larynx, the trachea and the extra-lobular bronchi;
(d) eyes and eyelids;
(e) the external auditory meatus;
(f) horn tissue; and
(g) in poultry, the head – except the comb and the ears, the wattles and caruncles – the oesophagus, the crop, the intestines and the genital organs.
2. All meat, including minced meat and meat preparations, used to produce meat product must meet the requirements for fresh meat. However, minced meat and meat preparations used to produce meat products need not satisfy other specific requirements of Section V. SECTION VII: LIVE BIVALVE MOLLUSCS
3. This Section applies to live bivalve molluscs. With the exception of the provisions on purification, it also applies to live echinoderms, tunicates and marine gastropods.
4. Chapters I to VIII apply to animals harvested from production areas that the competent authority has classified in accordance with Regulation (EC) No …/2004 \*. Chapter IX applies to pectinidae harvested outside those areas.
5. Chapters V, VI, VIII and IX, and paragraph 3 of Chapter VII, apply to retail.
6. The requirements of this Section supplement those laid down in Regulation (EC) No …/2004 \*\*.
(a) In the case of operations that take place before live bivalve molluscs arrive at a dispatch or purification centre, they supplement the requirements of Annex I to that Regulation.
(b) In the case of other operations, they supplement the requirements of Annex II to that Regulation.
______________________________________________________________________
- Official Publications Office is to insert the official number of Regulation on the organisation of official controls.
\*\* Official Publications Office is to insert the official number of Regulation on the hygiene of foodstuffs. CHAPTER I: GENERAL REQUIREMENTS FOR THE PLACING ON THE MARKET OF LIVE BIVALVE MOLLUSCS
1. Live bivalve molluscs may not be placed on the market for retail sale otherwise than via a dispatch centre, where an identification mark must be applied in accordance with Chapter VII.
2. Food business operators may accept batches of live bivalve molluscs only if the documentary requirements set out in paragraphs 3 to 7 have been complied with.
3. Whenever a food business operator moves a batch of live bivalve molluscs between establishments, up to and including the arrival of the batch at a dispatch centre or processing establishment, a registration document must accompany the batch.
4. The registration document must be in at least one official language of the Member State in which the receiving establishment is located and contain at least the information specified below.
(a) In the case of a batch of live bivalve molluscs sent from a production area, the registration document must contain at least the following information:
(i) the gatherer's identity and address;
(ii) the date of harvesting; (iii) the location of the production area described in as precise detail as is practicable or by a code number;
(iv) the health status of the production area;
(v) the shellfish species and quantity; and
(vi) the destination of the batch.
(b) In the case of a batch of live bivalve molluscs sent from a relaying area, the registration document must contain at least the information referred to in (a) and the following information:
(i) the location of the relaying area; and
(ii) the duration of relaying.
(c) In the case of a batch of live bivalve molluscs sent from a purification centre, the registration document must contain at least the information referred to in (a) and the following information:
(i) the address of the purification centre; (ii) the duration of purification; and
(iii) the dates on which the batch entered and left the purification centre.
5. Food business operators sending batches of live bivalve molluscs must complete the relevant sections of the registration document so that they are easy to read and cannot be altered. Food business operators receiving batches must date-stamp the document on receipt of the batch or record the date of receipt in another manner.
6. Food business operators must keep a copy of the registration document relating to each batch sent and received for at least twelve months after its dispatch or receipt (or such longer period as the competent authority may specify).
7. However, if:
(a) the staff gathering live bivalve molluscs also operate the dispatch centre, purification centre, relaying area or processing establishment receiving the live bivalve molluscs; and
(b) a single competent authority supervises all the establishments concerned,
registration documents are not necessary if that competent authority so permits. CHAPTER II: HYGIENE REQUIREMENTS FOR THE PRODUCTION AND HARVESTING OF LIVE BIVALVE MOLLUSCS
A. REQUIREMENTS FOR PRODUCTION AREAS
1. Gatherers may only harvest live bivalve molluscs from production areas with fixed locations and boundaries that the competent authority has classified – where appropriate, in cooperation with food business operators – as being of class A, B or C in accordance with Regulation (EC) No …/2004 \*.
2. Food business operators may place live bivalve molluscs collected from class A production areas on the market for direct human consumption only if they meet the requirements of Chapter V.
3. Food business operators may place live bivalve molluscs collected from class B production areas on the market for human consumption only after treatment in a purification centre or after relaying.
4. Food business operators may place live bivalve molluscs collected from class C production areas on the market for human consumption only after relaying over a long period in accordance with Part C of this Chapter.
- Official Publications Office is to insert the official number of Regulation on the organisation of official controls.
5. After purification or relaying, live bivalve molluscs from class B or C production areas must meet all of the requirements of Chapter V. However, live bivalve molluscs from such areas that have not been submitted for purification or relaying may be sent to a processing establishment, where they must undergo treatment to eliminate pathogenic microorganisms (where appropriate, after removal of sand, mud or slime in the same or another establishment). The permitted treatment methods are:
(a) sterilisation in hermetically sealed containers; and
(b) heat treatments involving:
(i) immersion in boiling water for the period required to raise the internal temperature of the mollusc flesh to not less than 90°C and maintenance of this minimum temperature for a period of not less than 90 seconds;
(ii) cooking for three to five minutes in an enclosed space where the temperature is between 120 and 160°C and the pressure is between 2 and 5 kg/cm², followed by shelling and freezing of the flesh to a core temperature of -20°C; and
(iii) steaming under pressure in an enclosed space satisfying the requirements relating to cooking time and the internal temperature of the mollusc flesh mentioned under (i). A validated methodology must be used. Procedures based on the HACCP principles must be in place to verify the uniform distribution of heat. 6. Food business operators must not produce live bivalve molluscs in, or harvest them from, areas that the competent authority has not classified, or which are unsuitable for health reasons. Food business operators must take account of any relevant information concerning areas' suitability for production and harvesting, including information obtained from own-checks and the competent authority. They must use this information, particularly information on environmental and weather conditions, to determine the appropriate treatment to apply to harvested batches.
B. REQUIREMENTS FOR HARVESTING AND HANDLING FOLLOWING HARVESTING
Food business operators harvesting live bivalve molluscs, or handling them immediately after harvesting, must ensure compliance with the following requirements.
1. Harvesting techniques and further handling must not cause additional contamination or excessive damage to the shells or tissues of the live bivalve molluscs or result in changes significantly affecting their suitability for treatment by purification, processing or relaying. Food business operators must in particular:
(a) adequately protect live bivalve molluscs from crushing, abrasion or vibration;
(b) not expose live bivalve molluscs to extreme temperatures;
(c) not re-immersce live bivalve molluscs in water that could cause additional contamination; and
(d) if carrying out conditioning in natural sites, use only areas that the competent authority has classified as being of class A.
2. Means of transport must permit adequate drainage, be equipped to ensure the best survival conditions possible and provide efficient protection against contamination.
C. REQUIREMENTS FOR RELAYING LIVE BIVALVE MOLLUSCS
Food business operators relaying live bivalve molluscs must ensure compliance with the following requirements.
1. Food business operators may use only those areas that the competent authority has approved for relaying live bivalve molluscs. Buoys, poles or other fixed means must clearly identify the boundaries of the sites. There must be a minimum distance between relaying areas, and also between relaying areas and production areas, so as to minimise any risk of the spread of contamination.
2. Conditions for relaying must ensure optimal conditions for purification. In particular, food business operators must:
(a) use techniques for handling live bivalve molluscs intended for relaying that permit the resumption of filter-feeding activity after immersion in natural waters;
(b) not relay live bivalve molluscs at a density that prevents purification;
(c) immerse live bivalve molluscs in seawater at the relaying area for an appropriate period, fixed depending on the water temperature, which period must be of at least two months' duration unless the competent authority agrees to a shorter period on the basis of the food business operator's risk analysis; and (d) ensure sufficient separation of sites within a relaying area to prevent mixing of batches; the "all in, all out" system must be used, so that a new batch cannot be brought in before the whole of the previous batch has been removed.
3. Food business operators managing relaying areas must keep permanent records of the source of live bivalve molluscs, relaying periods, relaying areas used and the subsequent destination of the batch after relaying, for inspection by the competent authority.
CHAPTER III: STRUCTURAL REQUIREMENTS FOR DISPATCH AND PURIFICATION CENTRES
1. The location of premises on land must not be subject to flooding by ordinary high tides or run-off from surrounding areas.
2. Tanks and water storage containers must meet the following requirements:
(a) Internal surfaces must be smooth, durable, impermeable and easy to clean.
(b) They must be constructed so as to allow complete draining of water.
(c) Any water intake must be situated in a position that avoids contamination of the water supply.
3. In addition, in purification centres, purification tanks must be suitable for the volume and type of products to be purified. CHAPTER IV: HYGIENE REQUIREMENTS FOR PURIFICATION AND DISPATCH CENTRES
A. REQUIREMENTS FOR PURIFICATION CENTRES
Food business operators purifying live bivalve molluscs must ensure compliance with the following requirements.
1. Before purification commences, live bivalve molluscs must be washed free of mud and accumulated debris using clean water.
2. Operation of the purification system must allow live bivalve molluscs rapidly to resume and to maintain filter-feeding activity, to eliminate sewage contamination, not to become re-contaminated and to be able to remain alive in a suitable condition after purification for wrapping, storage and transport before being placed on the market.
3. The quantity of live bivalve molluscs to be purified must not exceed the capacity of the purification centre. The live bivalve molluscs must be continuously purified for a period sufficient to achieve compliance with allow the health standards of Chapter V and microbiological criteria adopted in accordance with Regulation (EC) No …/2004 \*
4. Should a purification tank contain several batches of live bivalve molluscs, they must be of the same species and the length of the treatment must be based on the time required by the batch needing the longest period of purification.
- Official Publications Office is to insert the official number of Regulation on the hygiene of foodstuffs.
5. Containers used to hold live bivalve molluscs in purification systems must have a construction that allows clean seawater to flow through. The depth of layers of live bivalve molluscs must not impede the opening of shells during purification.
6. No crustaceans, fish or other marine species may be kept in a purification tank in which live bivalve molluscs are undergoing purification.
7. Every package containing purified live bivalve molluscs sent to a dispatch centre must be provided with a label certifying that all molluscs have been purified.
B. REQUIREMENTS FOR DISPATCH CENTRES
Food business operators operating dispatch centres must ensure compliance with the following requirements.
1. Handling of live bivalve molluscs, particularly conditioning, calibration, wrapping and packing, must not cause contamination of the product or affect the viability of the molluscs.
2. Before dispatch, the shells of live bivalve molluscs must be washed thoroughly with clean water.
3. Live bivalve molluscs must come from:
(a) a class A production area;
(b) a relaying area; (c) a purification centre; or
(d) another dispatch centre.
4. The requirements laid down in points 1 and 2 also apply to dispatch centres situated on board vessels. Molluscs handled in such centres must come from a class A production area or a relaying area.
CHAPTER V: HEALTH STANDARDS FOR LIVE BIVALVE MOLLUSCS
In addition to ensuring compliance with microbiological criteria adopted in accordance with Regulation (EC) No …/2004 \*, food business operators must ensure that live bivalve molluscs placed on the market for human consumption meet the standards laid down in this Chapter.
1. They must have organoleptic characteristics associated with freshness and viability, including shells free of dirt, an adequate response to percussion and normal amounts of intravalvular liquid.
2. They must not contain marine biotoxins in total quantities (measured in the whole body or any part edible separately) that exceed the following limits:
(a) for Paralytic Shellfish Poison (PSP), 800 micrograms per kilogram;
(b) for Amnesic Shellfish Poison (ASP), 20 milligrams of domoic acid per kilogram;
- Official Publications Office is to insert the official number of Regulation on the hygiene of foodstuffs. (c) for okadaic acid, dinophysistoxins and pectenotoxins together, 160 micrograms of okadaic acid equivalents per kilogram;
(d) for yessotoxins, 1 milligram of yessotoxin equivalent per kilogram; and
(e) for azaspiracids, 160 micrograms of azaspiracid equivalents per kilogram.
CHAPTER VI: WRAPPING AND PACKAGING OF LIVE BIVALVE MOLLUSCS
1. Oysters must be wrapped or packaged with the concave shell downwards.
2. Individual consumer-size packages of live bivalve molluscs must be closed and remain closed after leaving the dispatch centre and until presented for sale to the final consumer.
CHAPTER VII: IDENTIFICATION MARKING AND LABELLING
1. The label, including the identification mark, must be waterproof.
2. In addition to the general requirements for identification marks contained in Annex II, Section I, the following information must be present on the label:
(a) the species of bivalve mollusc (common name and scientific name); and
(b) the date of packaging, comprising at least the day and the month.
By way of derogation from Directive 2000/13/EC, the date of minimum durability may be replaced by the entry "these animals must be alive when sold". 3. The retailer must keep the label attached to the packaging of live bivalve molluscs that are not in individual consumer-size packages for at least 60 days after splitting up the contents.
CHAPTER VIII: OTHER REQUIREMENTS
1. Food business operators storing and transporting live bivalve molluscs must ensure that they are kept at a temperature that does not adversely affect food safety or their viability.
2. Live bivalve molluscs must not be re-immersed in, or sprayed with, water after they have been packaged for retail sale and left the dispatch centre.
CHAPTER IX: SPECIFIC REQUIREMENTS FOR PECTINIDAE HARVESTED OUTSIDE CLASSIFIED PRODUCTION AREAS
Food business operators harvesting pectinidae outside classified production areas or handling such pectinidae must comply with the following requirements.
1. Pectinidae may not be placed on the market unless they are harvested and handled in accordance with Chapter II, Part B, and meet the standards laid down in Chapter V, as proved by a system of own-checks.
2. In addition, where data from official monitoring programmes enable the competent authority to classify fishing grounds – where appropriate, in cooperation with food business operators – the provisions of Chapter II, Part A, apply by analogy to pectinidae.
3. Pectinidae may not be placed on the market for human consumption otherwise than via a fish auction, a dispatch centre or a processing establishment. When they handle pectinidae, food business operators operating such establishments must inform the competent authority and, as regards dispatch centres, comply with the relevant requirements of Chapters III and IV.
4. Food business operators handling pectinidae must comply:
(a) with the documentary requirements of Chapter I, points 3 to 7, where applicable. In this case, the registration document must clearly indicate the location of the area where the pectinidae were harvested; or
(b) as regards packaged pectinidae, and wrapped pectinidae if the wrapping provides protection equivalent to that of packaging, with the requirements of Chapter VII concerning identification marking and labelling.
SECTION VIII: FISHERY PRODUCTS
1. This Section does not apply to bivalve molluscs, echinoderms, tunicates and marine gastropods when placed on the market live. With the exception of Chapters I and II, it applies to such animals when not placed on the market live, in which case they must have been obtained in accordance with Section VII.
2. Chapter III, Parts A, C and D, Chapter IV and Chapter V apply to retail.
3. The requirements of this Section supplement those laid down in Regulation (EC) No …/2004.
(a) In the case of establishments, including vessels, engaged in primary production and associated operations they supplement the requirements of Annex I to that Regulation.
(b) In the case of other establishments, including vessels, they supplement the requirements of Annex II to that Regulation.
4. In relation to fishery products:
(a) primary production covers the farming, fishing and collection of live fishery products with a view to their being placed on the market; and
(b) associated operations cover any of the following operations, if carried out on board fishing vessels: slaughter, bleeding, heading, gutting, removing fins, refrigeration and wrapping; they also include:
(1) the transport and storage of fishery products the nature of which has not been substantially altered, including live fishery products, within fish farms on land and,
(2) the transport of fishery products the nature of which has not been substantially altered, including live fishery products, from the place of production to the first establishment of destination.
- Official Publications Office is to insert the official number of Regulation on the hygiene of foodstuffs. CHAPTER I: REQUIREMENTS FOR VESSELS
Food business operators must ensure that:
1. vessels used to harvest fishery products from their natural environment, or to handle or process them after harvesting, comply with the structural and equipment requirements laid down in Part I; and
2. operations carried out on board vessels take place in accordance with the rules laid down in Part II.
I. STRUCTURAL AND EQUIPMENT REQUIREMENTS
A. Requirements for all vessels
1. Vessels must be designed and constructed so as not to cause contamination of the products with bilge-water, sewage, smoke, fuel, oil, grease or other objectionable substances.
2. Surfaces with which fishery products come into contact must be of suitable corrosion-resistant material that is smooth and easy to clean. Surface coatings must be durable and non-toxic.
3. Equipment and material used for working on fishery products must be made of corrosion-resistant material that is easy to clean and disinfect.
4. When vessels have a water intake for water used with fishery products, it must be situated in a position that avoids contamination of the water supply. B. Requirements for vessels designed and equipped to preserve fresh fishery products for more than twenty-four hours
5. Vessels designed and equipped to preserve fishery products for more than twenty-four hours must be equipped with holds, tanks or containers for the storage of fishery products at the temperatures laid down in Chapter VII.
6. Holds must be separated from the engine compartments and from the crew quarters by partitions which are sufficient to prevent any contamination of the stored fishery products. Holds and containers used for the storage of fishery products must ensure their preservation under satisfactory conditions of hygiene and, where necessary, ensure that melt water does not remain in contact with the products.
7. In vessels equipped for chilling fishery products in cooled clean seawater, tanks must incorporate devices for achieving a uniform temperature throughout the tanks. Such devices must achieve a chilling rate that ensures that the mix of fish and clean seawater reaches not more than 3°C 6 hours after loading and not more than 0 °C after 16 hours and allow the monitoring and, where necessary, recording of temperatures.
C. Requirements for freezer vessels
Freezer vessels must:
1. have freezing equipment with sufficient capacity to lower the temperature rapidly so as to achieve a core temperature of not more than -18°C;
2. have refrigeration equipment with sufficient capacity to maintain fishery products in the storage holds at not more than -18°C. Storage holds must be equipped with a temperature-recording device in a place where it can be easily read. The temperature sensor of the reader must be situated in the area where the temperature in the hold is the highest; and
3. meet the requirements for vessels designed and equipped to preserve fishery products for more than 24 hours laid down in Part B, paragraph 2.
D. Requirements for factory vessels
1. Factory vessels must have at least:
(a) a receiving area reserved for taking fishery products on board, designed to allow each successive catch to be separated. This area must be easy to clean and designed so as to protect the products from the sun or the elements and from any source of contamination;
(b) a hygienic system for conveying fishery products from the receiving area to the work area;
(c) work areas that are large enough for the hygienic preparation and processing of fishery products, easy to clean and disinfect and designed and arranged in such a way as to prevent any contamination of the products;
(d) storage areas for the finished products that are large enough and designed so that they are easy to clean. If a waste-processing unit operates on board, a separate hold must be designated for the storage of such waste; (e) a place for storing packaging materials that is separate from the product preparation and processing areas;
(f) special equipment for disposing waste or fishery products that are unfit for human consumption directly into the sea or, where circumstances so require, into a watertight tank reserved for that purpose. If waste is stored and processed on board with a view to its sanitation, separate areas must be allocated for that purpose;
(g) a water intake situated in a position that avoids contamination of the water supply; and
(h) hand-washing equipment for use by the staff engaged in handling exposed fishery products with taps designed to prevent the spread of contamination.
2. However, factory vessels on board which crustaceans and molluscs are cooked, chilled and wrapped, need not meet the requirements of paragraph 1 if no other form of handling or processing takes place on board such vessels.
3. Factory vessels that freeze fishery products must have equipment meeting the requirements for freezer vessels laid down in Part C, points 1 and 2.
II. HYGIENE REQUIREMENTS
1. When in use, the parts of vessels or containers set aside for the storage of fishery products must be kept clean and maintained in good repair and condition. In particular, they must not be contaminated by fuel or bilge water.
2. As soon as possible after they are taken on board, fishery products must be protected from contamination and from the effects of the sun or any other source of heat. When they are washed, the water used must be either potable water or, where appropriate, clean water.
3. Fishery products must be handled and stored so as to prevent bruising. Handlers may use spiked instruments to move large fish or fish which might injure them, provided that the flesh of the products suffers no damage.
4. Fishery products other than those kept alive must undergo chilling as soon as possible after loading. However, when chilling is not possible, fishery products must be landed as soon as possible.
5. Ice used to chill fishery products must be made from potable water or clean water.
6. Where fish are headed and/or gutted on board, such operations must be carried out hygienically as soon as possible after capture, and the products must be washed immediately and thoroughly with potable water or clean water. In that event, the viscera and parts that may constitute a danger to public health must be removed as soon as possible and kept apart from products intended for human consumption. Livers and roes intended for human consumption must be preserved under ice, at a temperature approaching that of melting ice, or be frozen.
7. Where freezing in brine of whole fish intended for canning is practised, a temperature of not more than -9 °C must be achieved for the product. The brine must not be a source of contamination for the fish. CHAPTER II: REQUIREMENTS DURING AND AFTER LANDING
8. Food business operators responsible for the unloading and landing of fishery products must:
(a) ensure that unloading and landing equipment that comes into contact with fishery products is constructed of material that is easy to clean and disinfect and maintained in a good state of repair and cleanliness; and
(b) avoid contamination of fishery products during unloading and landing, in particular by:
(i) carrying out unloading and landing operations rapidly;
(ii) placing fishery products without delay in a protected environment at the temperature specified in Chapter VII; and
(iii) not using equipment and practices that cause unnecessary damage to the edible parts of the fishery products.
9. Food business operators responsible for auction and wholesale markets or parts thereof where fishery products are displayed for sale must ensure compliance with the following requirements.
(a) (i) There must be lockable facilities for the refrigerated storage of detained fishery products and separate lockable facilities for the storage of fishery products declared unfit for human consumption. (ii) If the competent authority so requires, there must be an adequately equipped lockable facility or, where needed, room for the exclusive use of the competent authority.
(b) At the time of display or storage of fishery products:
(i) the premises must not be used for other purposes;
(ii) vehicles emitting exhaust fumes likely to impair the quality of fishery products must not have access to the premises;
(iii) persons having access to the premises must not introduce other animals; and
(iv) the premises must be well lit to facilitate official controls.
3. When chilling was not possible on board the vessel, fresh fishery products, other than those kept alive, must undergo chilling as soon as possible after landing and be stored at a temperature approaching that of melting ice.
4. Food business operators must cooperate with relevant competent authorities so as to permit them to carry out official controls in accordance with Regulation (EC) No…/2004 \*, in particular as regards any notification procedures for the landing of fishery products that the competent authority of the Member State the flag of which the vessel is flying or the competent authority of the Member State where the fishery products are landed might consider necessary.
- Official Publications Office is to insert the official number of Regulation on the organisation of official controls. CHAPTER III: REQUIREMENTS FOR ESTABLISHMENTS, INCLUDING VESSELS, HANDLING FISHERY PRODUCTS
Food business operators must ensure compliance with the following requirements, where relevant, in establishments handling fishery products.
A. REQUIREMENTS FOR FRESH FISHERY PRODUCTS
1. Where chilled, unpackaged products are not distributed, dispatched, prepared or processed immediately after reaching an establishment on land, they must be stored under ice in appropriate facilities. Re-icing must be carried out as often as necessary. Packaged fresh fishery products must be chilled to a temperature approaching that of melting ice.
2. Operations such as heading and gutting must be carried out hygienically. Where gutting is possible from a technical and commercial viewpoint, it must be carried out as quickly as possible after the products have been caught or landed. The products must be washed thoroughly with potable water or, on board vessels, clean water immediately after these operations.
3. Operations such as filleting and cutting must be carried out so as to avoid contamination or spoilage of fillets and slices. Fillets and slices must not remain on the worktables beyond the time necessary for their preparation. Fillets and slices must be wrapped and, where necessary, packaged and must be chilled as quickly as possible after their preparation.
4. Containers used for the dispatch or storage of unpackaged prepared fresh fishery products stored under ice must ensure that melt water does not remain in contact with the products.
5. Whole and gutted fresh fishery products may be transported and stored in cooled water on board vessels. They may also continue to be transported in cooled water after landing, and be transported from aquaculture establishments, until they arrive at the first establishment on land carrying out any activity other than transport or sorting.
B. REQUIREMENTS FOR FROZEN PRODUCTS
Establishments on land that freeze fishery products must have equipment that satisfies the requirements laid down for freezer vessels in Chapter I, Part I.C, points 1 and 2.
C. REQUIREMENTS FOR MECHANICALLY SEPARATED FISHERY PRODUCTS
Food business operators manufacturing mechanically separated fishery products must ensure compliance with the following requirements.
1. The raw materials used must satisfy the following requirements.
(a) Only whole fish and bones after filleting may be used to produce mechanically separated fishery products;
(b) All raw materials must be free from guts.
2. The manufacturing process must satisfy the following requirements:
(a) Mechanical separation must take place without undue delay after filleting;
(b) If whole fish are used, they must be gutted and washed beforehand;
(c) After production, mechanically separated fishery products must be frozen as quickly as possible or incorporated in a product intended for freezing or a stabilising treatment.
D. REQUIREMENTS CONCERNING PARASITES
1. The following fishery products must be frozen at a temperature of not more than -20 °C in all parts of the product for not less than 24 hours; this treatment must be applied to the raw product or the finished product:
(a) fishery products to be consumed raw or almost raw;
(b) fishery products from the following species, if they are to undergo a cold smoking process in which the internal temperature of the fishery product is not more than 60 °C:
(i) herring;
(ii) mackerel;
(iii) sprat;
(iv) (wild) Atlantic and Pacific salmon; and (c) marinated and/or salted fishery products, if the processing is insufficient to destroy nematode larvae.
2. Food business operators need not carry out the treatment required under paragraph 1 if:
(a) epidemiological data are available indicating that the fishing grounds of origin do not present a health hazard with regard to the presence of parasites; and
(b) the competent authority so authorises.
3. A document from the manufacturer, stating the type of process they have undergone, must accompany fishery products referred to in paragraph 1 when placed on the market, except when supplied to the final consumer.
CHAPTER IV: REQUIREMENTS FOR PROCESSED FISHERY PRODUCTS
Food business operators cooking crustaceans and molluscs must ensure compliance with the following requirements.
1. Rapid cooling must follow cooking. Water used for this purpose must be potable water or, on board vessels, clean water. If no other method of preservation is used, cooling must continue until a temperature approaching that of melting ice is reached.
2. Shelling or shucking must be carried out hygienically, avoiding contamination of the product. Where such operations are done by hand, workers must pay particular attention to washing their hands.
3. After shelling or shucking, cooked products must be frozen immediately, or be chilled as soon as possible to the temperature laid down in Chapter VII.
CHAPTER V: HEALTH STANDARDS FOR FISHERY PRODUCTS
In addition to ensuring compliance with microbiological criteria adopted in accordance with Regulation (EC) No …/2004 \*, food business operators must ensure, depending on the nature of the product or the species, that fishery products placed on the market for human consumption meet the standards laid down in this Chapter.
A. ORGANOLEPTIC PROPERTIES OF FISHERY PRODUCTS
Food business operators must carry out an organoleptic examination of fishery products. In particular, this examination must ensure that fishery products comply with any freshness criteria.
B. HISTAMINE
Food business operators must ensure that the limits with regard to histamine are not exceeded.
- Official Publications Office is to insert the official number of Regulation on the hygiene of foodstuffs. C. TOTAL VOLATILE NITROGEN
Unprocessed fishery products must not be placed on the market if chemical tests reveal that the limits with regard to TVB-N or TMA-N have been exceeded.
D. PARASITES
Food business operators must ensure that fishery products have been subjected to a visual examination for the purpose of detecting visible parasites before being placed on the market. They must not place fishery products that are obviously contaminated with parasites on the market for human consumption.
E. TOXINS HARMFUL TO HUMAN HEALTH
1. Fishery products derived from poisonous fish of the following families must not be placed on the market: Tetraodontidae, Molidae, Diodontidae and Canthigasteridae.
2. Fishery products containing biotoxins such as ciguatoxin or muscle-paralysing toxins must not be placed on the market. However, fishery products derived from bivalve molluscs, echinoderms, tunicates and marine gastropods may be placed on the market if they have been produced in accordance with Section VII and comply with the standards laid down in Chapter V, point 2, of that Section. CHAPTER VI: WRAPPING AND PACKAGING OF FISHERY PRODUCTS
3. Receptacles in which fresh fishery products are kept under ice must be water-resistant and ensure that melt water does not remain in contact with the products.
4. Frozen blocks prepared on board vessels must be adequately wrapped before landing.
5. When fishery products are wrapped on board fishing vessels, food business operators must ensure that wrapping material:
(a) is not a source of contamination;
(b) is stored in such a manner that it is not exposed to a risk of contamination;
(c) intended for re-use is easy to clean and, where necessary, to disinfect.
CHAPTER VII: STORAGE OF FISHERY PRODUCTS
Food business operators storing fishery products must ensure compliance with the following requirements.
1. Fresh fishery products, thawed unprocessed fishery products, and cooked and chilled products from crustaceans and molluscs, must be maintained at a temperature approaching that of melting ice.
2. Frozen fishery products must be kept at a temperature of not more than -18°C in all parts of the product; however, whole frozen fish in brine intended for the manufacture of canned food may be kept at a temperature of not more than -9°C.
3. Fishery products kept alive must be kept at a temperature and in a manner that does not adversely affect food safety or their viability.
CHAPTER VIII: TRANSPORT OF FISHERY PRODUCTS
Food business operators transporting fishery products must ensure compliance with the following requirements.
1. During transport, fishery products must be maintained at the required temperature. In particular:
(a) fresh fishery products, thawed unprocessed fishery products, and cooked and chilled products from crustaceans and molluscs, must be maintained at a temperature approaching that of melting ice; (b) frozen fishery products, with the exception of frozen fish in brine intended for the manufacture of canned food, must be maintained during transport at an even temperature of not more than -18°C in all parts of the product, possibly with short upward fluctuations of not more than 3°C.
2. Food business operators need not comply with point 1(b) when frozen fishery products are transported from a cold store to an approved establishment to be thawed on arrival for the purposes of preparation and/or processing, if the journey is short and the competent authority so permits.
3. If fishery products are kept under ice, melt water must not remain in contact with the products.
4. Fishery products to be placed on the market live must be transported in such a way as not adversely to affect food safety or their viability.
SECTION IX: RAW MILK AND DAIRY PRODUCTS
CHAPTER I: RAW MILK – PRIMARY PRODUCTION
Food business operators producing or, as appropriate, collecting raw milk must ensure compliance with the requirements laid down in this Chapter. I. HEALTH REQUIREMENTS FOR RAW MILK PRODUCTION
1. Raw milk must come from animals:
(a) that do not show any symptoms of infectious diseases communicable to humans through milk;
(b) that are in a good general state of health, present no sign of disease that might result in the contamination of milk and, in particular, are not suffering from any infection of the genital tract with discharge, enteritis with diarrhoea and fever, or a recognisable inflammation of the udder;
(c) that do not have any udder wound likely to affect the milk;
(d) to which no unauthorised substances or products have been administered and that have not undergone illegal treatment within the meaning of Directive 96/23/EC; and
(e) in respect of which, where authorised products or substances have been administered, the withdrawal periods prescribed for these products or substances have been observed.
2. (a) In particular, as regards brucellosis, raw milk must come from:
(i) cows or buffaloes belonging to a herd which, within the meaning of Directive 64/432/EEC \*, is free or officially free of brucellosis;
(ii) sheep or goats belonging to a holding officially free or free of brucellosis within the meaning of Directive 91/68/EEC †; or
(iii) females of other species belonging, for species susceptible to brucellosis, to herds regularly checked for that disease under a control plan that the competent authority has approved.
(b) As regards tuberculosis, raw milk must come from:
(i) cows or buffaloes belonging to a herd which, within the meaning of Directive 64/432/EEC, is officially free of tuberculosis; or
(ii) females of other species belonging, for species susceptible to tuberculosis, to herds regularly checked for this disease under a control plan that the competent authority has approved.
______________________________________________________________________
- Council Directive 64/432/EEC of 26 June 1964 on animal health problems affecting intra-Community trade in bovine animals and swine (OJ 121, 29.7.1964, p. 1977/64). Directive as last amended by the 2003 Act of Accession.
† Council Directive 91/68/EEC of 28 January 1991 on animal health conditions governing intra-Community trade in ovine and caprine animals (OJ L 46, 19.2.1991, p. 19). Directive as last amended by Regulation (EC) No 806/2003 (OJ L 122, 16.5.2003, p.1). (c) If goats are kept together with cows, such goats must be inspected and tested for tuberculosis.
3. However, raw milk from animals that do not meet the requirements of point 2 may be used with the authorisation of the competent authority:
(a) in the case of cows or buffaloes that do not show a positive reaction to tests for tuberculosis or brucellosis, nor any symptoms of these diseases, after having undergone a heat treatment such as to show a negative reaction to the phosphatase test;
(b) in the case of sheep or goats that do not show a positive reaction to tests for brucellosis, or which have been vaccinated against brucellosis as part of an approved eradication programme, and which do not show any symptom of that disease, either:
(i) for the manufacture of cheese with a maturation period of at least two months; or
(ii) after having undergone heat treatment such as to show a negative reaction to the phosphatase test; and
(c) in the case of females of other species that do not show a positive reaction to tests for tuberculosis or brucellosis, nor any symptoms of these diseases, but belong to a herd where brucellosis or tuberculosis has been detected after the checks referred to in point 2(a)(iii) or 2(b)(ii), if treated to ensure its safety. 4. Raw milk from any animal not complying with the requirements of points 1 to 3 – in particular, any animal showing individually a positive reaction to the prophylactic tests vis-à-vis tuberculosis or brucellosis as laid down in Directive 64/432/EEC and Directive 91/68/EEC – must not be used for human consumption.
5. The isolation of animals that are infected, or suspected of being infected, with any of the diseases referred to in point 1 or 2 must be effective to avoid any adverse effect on other animals' milk.
II. HYGIENE ON MILK PRODUCTION HOLDINGS
A. Requirements for premises and equipment
1. Milking equipment, and premises where milk is stored, handled or cooled must be located and constructed so as to limit the risk of contamination of milk.
2. Premises for the storage of milk must be protected against vermin, have adequate separation from premises where animals are housed and, where necessary to meet the requirements laid down in Part B, have suitable refrigeration equipment.
3. Surfaces of equipment that are intended to come into contact with milk (utensils, containers, tanks, etc. intended for milking, collection or transport) must be easy to clean and, where necessary, disinfect and be maintained in a sound condition. This requires the use of smooth, washable and non-toxic materials.
4. After use, such surfaces must be cleaned and, where necessary, disinfected. After each journey, or after each series of journeys when the period of time between unloading and the following loading is very short, but in all cases at least once a day, containers and tanks used for the transport of raw milk must be cleaned and disinfected in an appropriate manner before re-use.
B. Hygiene during milking, collection and transport
1. Milking must be carried out hygienically, ensuring in particular:
(a) that, before milking starts, the teats, udder and adjacent parts are clean;
(b) that milk from each animal is checked for organoleptic or physico-chemical abnormalities by the milker or a method achieving similar results and that milk presenting such abnormalities is not used for human consumption;
(c) that milk from animals showing clinical signs of udder disease is not used for human consumption otherwise than in accordance with the instructions of a veterinarian;
(d) the identification of animals undergoing medical treatment likely to transfer residues to the milk, and that milk obtained from such animals before the end of the prescribed withdrawal period is not used for human consumption; and (e) that teat dips or sprays are used only if the competent authority has approved them and in a manner that does not produce unacceptable residue levels in the milk.
2. Immediately after milking, milk must be held in a clean place designed and equipped to avoid contamination. It must be cooled immediately to not more than 8 °C in the case of daily collection, or not more than 6 °C if collection is not daily.
3. During transport the cold chain must be maintained and, on arrival at the establishment of destination, the temperature of the milk must not be more than 10ºC.
4. Food business operators need not comply with the temperature requirements laid down in points 2 and 3 if the milk meets the criteria provided for in Part III and either:
(a) the milk is processed within 2 hours of milking; or
(b) a higher temperature is necessary for technological reasons related to the manufacture of certain dairy products and the competent authority so authorises.
C. Staff hygiene
1. Persons performing milking and/or handling raw milk must wear suitable clean clothes.
2. Persons performing milking must maintain a high degree of personal cleanliness. Suitable facilities must be available near the place of milking to enable persons performing milking and handling raw milk to wash their hands and arms.
III. CRITERIA FOR RAW MILK
1. The following criteria for raw milk apply pending the establishment of standards in the context of more specific legislation on the quality of milk and dairy products.
2. A representative number of samples of raw milk collected from milk production holdings taken by random sampling must be checked for compliance with points 3 and 4.
The checks may be carried out by, or on behalf of:
(a) the food business operator producing the milk;
(b) the food business operator collecting or processing the milk;
(c) a group of food business operators; or
(d) in the context of a national or regional control scheme. 3. (a) Food business operators must initiate procedures to ensure that raw milk meets the following criteria:
(i) for raw cows' milk:
| Plate count at 30 °C (per ml) | ≤ 100 000 (\*) | |-------------------------------|--------------| | Somatic cell count (per ml) | ≤ 400 000 (\*\*) |
(ii) for raw milk from other species:
| Plate count at 30 °C (per ml) | ≤ 1 500 000 (\*) |
(b) However, if raw milk from species other than cows is intended for the manufacture of products made with raw milk by a process that does not involve any heat treatment, food business operators must take steps to ensure that the raw milk used meets the following criterion.
| Plate count at 30 °C (per ml) | ≤ 500 000 (\*) |
(\*) Rolling geometric average over a two-month period, with at least two samples per month.
(\*\*) Rolling geometric average over a three-month period, with at least one sample per month, unless the competent authority specifies another methodology to take account of seasonal variations in production levels. 4. Without prejudice to Directive 96/23/EC, food business operators must initiate procedures to ensure that raw milk is not placed on the market if either:
(a) it contains antibiotic residues in a quantity that, in respect of any one of the substances referred to in Annexes I and III to Regulation (EEC) No 2377/90 \*, exceeds the levels authorised under that Regulation; or
(b) the combined total of residues of antibiotic substances exceeds any maximum permitted value.
5. When raw milk fails to comply with point 3 or 4, the food business operator must inform the competent authority and take measures to correct the situation.
CHAPTER II: REQUIREMENTS CONCERNING DAIRY PRODUCTS
I. TEMPERATURE REQUIREMENTS
1. Food business operators must ensure that, upon acceptance at a processing establishment, milk is quickly cooled to not more than 6 °C and kept at that temperature until processed.
2. However, food business operators may keep milk at a higher temperature if:
(a) processing begins immediately after milking, or within 4 hours of acceptance at the processing establishment; or
______________________________________________________________________
- Council Regulation (EEC) No 2377/90 of 26 June 1990 laying down a Community procedure for the establishment of maximum residue limits of veterinary medicinal products in foodstuffs of animal origin (OJ L 224, 18.8.1990, p. 1). Regulation as last amended by Commission Regulation (EC) No 324/2004 (OJ L 58, 26.2.2004, p. 16). (b) the competent authority authorises a higher temperature for technological reasons concerning the manufacture of certain dairy products.
II. REQUIREMENTS FOR HEAT TREATMENT
1. When raw milk or dairy products undergo heat treatment, food business operators must ensure that this satisfies the requirements of Regulation (EC) No …/2004 \*, Annex II, Chapter XI.
2. When considering whether to subject raw milk to heat treatment, food business operators must:
(a) have regard to the procedures developed in accordance with the HACCP principles pursuant to Regulation (EC) No ..../2004 \*; and
(b) comply with any requirements that the competent authority may impose in this regard when approving establishments or carrying out checks in accordance with Regulation (EC) No …/2004 \*\*.
______________________________________________________________________
- Official Publications Office is to insert official number of Regulation on the hygiene of foodstuffs.
\*\* Official Publications Office is to insert official number of Regulation on the organisation of official controls. III. CRITERIA FOR RAW COWS' MILK
1. Food business operators manufacturing dairy products must initiate procedures to ensure that, immediately before processing:
(a) raw cows' milk used to prepare dairy products has a plate count at 30°C of less than 300 000 per ml; and
(b) processed cows' milk used to prepare dairy products has a plate count at 30°C of less than 100 000 per ml.
2. When milk fails to meet the criteria laid down in paragraph 1, the food business operator must inform the competent authority and take measures to correct the situation.
CHAPTER III: WRAPPING AND PACKAGING
Sealing of consumer packages must be carried out immediately after filling in the establishment where the last heat treatment of liquid dairy products takes place, by means of sealing devices that prevent contamination. The sealing system must be designed in such a way that, after opening, the evidence of its opening remains clear and easy to check. CHAPTER IV: LABELLING
1. In addition to the requirements of Directive 2000/13/EC, except in the cases envisaged in Article 13(4) and (5) of that Directive, labelling must clearly show:
(a) in the case of raw milk intended for direct human consumption, the words "raw milk";
(b) in the case of products made with raw milk, the manufacturing process for which does not include any heat treatment or any physical or chemical treatment, the words "made with raw milk".
2. The requirements of paragraph 1 apply to products destined for retail trade. The term "labelling" includes any packaging, document, notice, label, ring or collar accompanying or referring to such products.
CHAPTER V: IDENTIFICATION MARKING
By way of derogation from the requirements of Annex II, Section I:
1. rather than indicating the approval number of the establishment, the identification mark may include a reference to where on the wrapping or packaging the approval number of the establishment is indicated;
2. in the case of the reusable bottles, the identification mark may indicate only the initials of the consigning country and the approval number of the establishment. SECTION X: EGGS AND EGG PRODUCTS
CHAPTER I: EGGS
1. At the producer's premises, and until sale to the consumer, eggs must be kept clean, dry, free of extraneous odour, effectively protected from shocks and out of direct sunshine.
2. Eggs must be stored and transported at a temperature, preferably constant, that is best suited to assure optimal conservation of their hygiene properties.
3. Eggs must be delivered to the consumer within a maximum time limit of 21 days of laying.
CHAPTER II: EGG PRODUCTS
I. REQUIREMENTS FOR ESTABLISHMENTS
Food business operators must ensure that establishments for the manufacture of egg products are constructed, laid out and equipped so as to ensure separation of the following operations:
1. washing, drying and disinfecting dirty eggs, where carried out;
2. breaking eggs, collecting their contents and removing parts of shells and membranes; and
3. operations other than those referred to in points 1 and 2. II. RAW MATERIALS FOR THE MANUFACTURE OF EGG PRODUCTS
Food business operators must ensure that raw materials used to manufacture egg products comply with the following requirements.
1. The shells of eggs used in the manufacture of egg products must be fully developed and contain no breaks. However, cracked eggs may be used for the manufacture of egg products if the establishment of production or a packing centre delivers them directly to a processing establishment, where they must be broken as soon as possible.
2. Liquid egg obtained in an establishment approved for that purpose may be used as raw material. Liquid egg must be obtained in accordance with the requirements of points 1, 2, 3, 4 and 7 of Part III.
III. SPECIAL HYGIENE REQUIREMENTS FOR THE MANUFACTURE OF EGG PRODUCTS
Food business operators must ensure that all operations are carried out in such a way as to avoid any contamination during production, handling and storage of egg products, in particular by ensuring compliance with the following requirements.
1. Eggs must not be broken unless they are clean and dry.
2. Eggs must be broken in a manner that minimises contamination, in particular by ensuring adequate separation from other operations. Cracked eggs must be processed as soon as possible.
3. Eggs other than those of hens, turkeys or guinea fowl must be handled and processed separately. All equipment must be cleaned and disinfected before processing of hens', turkeys' and guinea fowls' eggs is resumed.
4. Egg contents may not be obtained by the centrifuging or crushing of eggs, nor may centrifuging be used to obtain the remains of egg whites from empty shells for human consumption.
5. After breaking, each particle of the egg product must undergo processing as quickly as possible to eliminate microbiological hazards or to reduce them to an acceptable level. A batch that has been insufficiently processed may immediately undergo processing again in the same establishment, if this processing renders it fit for human consumption. When a batch is found to be unfit for human consumption, it must be denatured so as to ensure that it is not used for human consumption.
6. Processing is not required for egg white intended for the manufacture of dried or crystallised albumin destined subsequently to undergo heat treatment.
7. If processing is not carried out immediately after breaking, liquid egg must be stored either frozen or at a temperature of not more than 4 °C. The storage period before processing at 4 °C must not exceed 48 hours. However, these requirements do not apply to products to be de-sugared, if de-sugaring process is performed as soon as possible.
8. Products that have not been stabilised so as to be kept at room temperature must be cooled to not more than 4 °C. Products for freezing must be frozen immediately after processing.
IV. ANALYTICAL SPECIFICATIONS
1. The concentration of 3-OH-butyric acid must not exceed 10 mg/kg in the dry matter of the unmodified egg product.
2. The lactic acid content of raw material used to manufacture egg products must not exceed 1 g/kg of dry matter. However, for fermented products, this value must be the one recorded before the fermentation process.
3. The quantity of eggshell remains, egg membranes and any other particles in the processed egg product must not exceed 100 mg/kg of egg product.
V. LABELLING AND IDENTIFICATION MARKING
1. In addition to the general requirements for identification marking laid down in Annex II, Section I, consignments of egg products, destined not for retail but for use as an ingredient in the manufacture of another product, must have a label giving the temperature at which the egg products must be maintained and the period during which conservation may thus be assured.
2. In the case of liquid eggs, the label referred to in paragraph 1 must also bear the words: "non-pasteurised egg products - to be treated at place of destination" and indicate the date and hour of breaking.
SECTION XI: FROGS' LEGS AND SNAILS
Food business operators preparing frogs' legs or snails for human consumption must ensure compliance with the following requirements.
1. Frogs and snails must be killed in an establishment constructed, laid out and equipped for that purpose.
2. Establishment in which frogs' legs are prepared must have a room reserved for the storage and washing of live frogs, and for their slaughter and bleeding. This room must be physically separate from the preparation room.
3. Frogs and snails that die otherwise than by being killed in the establishment must not be prepared for human consumption.
4. Frogs and snails must be subjected to an organoleptic examination carried out by sampling. If that examination indicates that they might present a hazard, they must not be used for human consumption.
5. Immediately following preparation, frogs' legs must be washed fully with running potable water and immediately chilled to a temperature approaching that of melting ice, frozen or processed.
6. After killing, snails' hepato-pancreas must, if it might present a hazard, be removed and not be used for human consumption.
SECTION XII: RENDERED ANIMAL FATS AND GREAVES
CHAPTER I: REQUIREMENTS APPLICABLE TO ESTABLISHMENTS COLLECTING OR PROCESSING RAW MATERIALS
Food business operators must ensure that establishments collecting or processing raw materials for the production of rendered animal fats and greaves comply with the following requirements.
1. Centres for the collection of raw materials and further transport to processing establishments must be equipped with facilities for the storage of raw materials at a temperature of not more than 7°C.
2. Each processing establishment must have:
(a) refrigeration facilities; (b) a dispatch room, unless the establishment dispatches rendered animal fat only in tankers; and
(c) if appropriate, suitable equipment for the preparation of products consisting of rendered animal fats mixed with other foodstuffs and/or seasonings.
3. However, the refrigeration facilities required under points 1 and 2(a) are not necessary if the arrangements for the supply of raw materials ensure that they are never stored or transported without active refrigeration otherwise than as provided for in Chapter II, point 1(d).
CHAPTER II: HYGIENE REQUIREMENTS FOR THE PREPARATION OF RENDERED ANIMAL FAT AND GREAVES
Food business operators preparing rendered animal fats and greaves must ensure compliance with the following requirements.
1. Raw materials must:
(a) derive from animals which have been slaughtered in a slaughterhouse, and which have been found fit for human consumption following ante-mortem and post-mortem inspection;
(b) consist of adipose tissues or bones, which are reasonably free from blood and impurities; (c) come from establishments registered or approved under Regulation (EC) No …/2003 * or under this Regulation; and
(d) be transported, and stored until rendering, in hygienic conditions and at an internal temperature of not more than 7 °C. However, raw materials may be stored and transported without active refrigeration if rendered within 12 hours after the day on which they were obtained.
2. During rendering the use of solvents is prohibited.
3. When the fat for refining meets the standards laid down in point 4, rendered animal fat prepared in accordance with points 1 and 2 may be refined in the same establishment or in another establishment with a view to improving its physico-chemical quality.
- Official Publications Office is to insert official number of Regulation on the hygiene of foodstuffs.
4. Rendered animal fat, depending on type, must meet the following standards:
| | Ruminants | Porcine animals | Other animal fat | |------------------------|-----------|-----------------|-----------------| | | Edible tallow | Tallow for refining | Edible fat | Lard and other fat for refining | Edible fat | For refining | | Premier jus (1) | 0.75 | 1.25 | 3.0 | 0.75 | 1.25 | 2.0 | 1.25 | 3.0 | | Other | 4 meq/kg | 4 meq/kg | 6 meq/kg | 4 meq/kg | 4 meq/kg | 6 meq/kg | 4 meq/kg | 10 meq/kg | | FFA (m/m% oleic acid) maximum | 0.75 | 1.25 | 3.0 | 0.75 | 1.25 | 2.0 | 1.25 | 3.0 | | Peroxide maximum | 4 meq/kg | 4 meq/kg | 6 meq/kg | 4 meq/kg | 4 meq/kg | 6 meq/kg | 4 meq/kg | 10 meq/kg | | Total insoluble impurities | Maximum 0.15% | Maximum 0.5% | | Odour, taste, colour | Normal | | | | | | | |
(1) Rendered animal fat obtained by low-temperature rendering of fresh fat from the heart, caul, kidneys and mesentery of bovine animals, and fat from cutting rooms.
(2) Rendered animal fat obtained from the adipose tissues of porcine animals.
5. Greaves intended for human consumption must be stored in accordance with the following temperature requirements.
(a) When greaves are rendered at a temperature of not more than 70°C, they must be stored:
(i) at a temperature of not more than 7°C for a period not exceeding 24 hours; or
(ii) at a temperature of not more than –18°C. (b) When greaves are rendered at a temperature of more than 70°C and have a moisture content of 10% (m/m) or more, they must be stored:
(i) at a temperature of not more than 7°C for a period not exceeding 48 hours or a time/temperature ratio giving an equivalent guarantee; or
(ii) at a temperature of not more than -18°C.
(c) When greaves are rendered at a temperature of more than 70°C and have a moisture content of less than 10% (m/m), there are no specific requirements.
SECTION XIII: TREATED STOMACHS, BLADDERS AND INTESTINES
Food business operators treating stomachs, bladders and intestines must ensure compliance with the following requirements.
1. Animal intestines, bladders and stomachs may be placed on the market only if:
(a) they derive from animals which have been slaughtered in a slaughterhouse, and which have been found fit for human consumption following ante-mortem and post-mortem inspection;
(b) they are salted, heated or dried; and
(c) after the treatment referred to in (b), effective measures are taken to prevent re-contamination.
2. Treated stomachs, bladders and intestines that cannot be kept at ambient temperature must be stored chilled using facilities intended for that purpose until their dispatch. In particular, products that are not salted or dried must be kept at a temperature of not more than 3°C.
SECTION XIV: GELATINE
1. Food business operators manufacturing gelatine must ensure compliance with the requirements of this Section.
2. For the purpose of this Section, "tanning" means the hardening of hides, using vegetable tanning agents, chromium salts or other substances such as aluminium salts, ferric salts, silicic salts, aldehydes and quinones, or other synthetic hardening agents.
CHAPTER I: REQUIREMENTS FOR RAW MATERIALS
1. For the production of gelatine intended for use in food, the following raw materials may be used:
(a) bones;
(b) hides and skins of farmed ruminant animals;
(c) pig skins;
(d) poultry skin; (e) tendons and sinews;
(f) wild game hides and skins; and
(g) fish skin and bones.
2. The use of hides and skins is prohibited if they have undergone any tanning process, regardless of whether this process was completed.
3. Raw materials listed in point 1(a) to (e) must derive from animals which have been slaughtered in a slaughterhouse and whose carcases have been found fit for human consumption following ante-mortem and post-mortem inspection or, in the case of hides and skins from wild game, found fit for human consumption.
4. Raw materials must come from establishments registered or approved under Regulation (EC) No …/2004 * or under this Regulation.
5. Collection centres and tanneries may also supply raw material for the production of gelatine intended for human consumption if the competent authority specifically authorises them for this purpose and they fulfil the following requirements.
(a) They must have storage rooms with hard floors and smooth walls that are easy to clean and disinfect and, where appropriate, provided with refrigeration facilities.
- Official Publications Office is to insert official number of Regulation on the hygiene of foodstuffs. (b) The storage rooms must be kept in a satisfactory state of cleanliness and repair, so that they do not constitute a source of contamination for the raw materials.
(c) If raw material not in conformity with this Chapter is stored and/or processed in these premises, it must be segregated from raw material in conformity with this Chapter throughout the period of receipt, storage, processing and dispatch.
CHAPTER II: TRANSPORT AND STORAGE OF RAW MATERIALS
1. In place of the identification mark provided for in Annex II, Section I, a document indicating the establishment of origin and containing the information set out in the Appendix to this Annex must accompany raw materials during transport, when delivered to a collection centre or tannery and when delivered to the gelatine-processing establishment.
2. Raw materials must be transported and stored chilled or frozen unless they are processed within 24 hours after their departure. However, degreased and dried bones or ossein, salted, dried and limed hides, and hides and skins treated with alkali or acid may be transported and stored at ambient temperature. CHAPTER III: REQUIREMENTS FOR THE MANUFACTURE OF GELATINE
3. The production process for gelatine must ensure that:
(a) all ruminant bone material derived from animals born, reared or slaughtered in countries or regions classified as having a low incidence of BSE in accordance with Community legislation is subjected to a process which ensures that all bone material is finely crushed and degreased with hot water and treated with dilute hydrochloric acid (at minimum concentration of 4% and pH < 1.5) over a period of at least two days, followed by an alkaline treatment of saturated lime solution (pH > 12.5) for a period of at least 20 days with a sterilisation step of 138-140 °C during four seconds or by any approved equivalent process; and
(b) other raw material is subjected to a treatment with acid or alkali, followed by one or more rinses. The pH must be adjusted subsequently. Gelatine must be extracted by heating one or several times in succession, followed by purification by means of filtration and sterilisation.
4. If a food business operator manufacturing gelatine complies with the requirements applying to gelatine intended for human consumption in respect of all the gelatine that it produces, it may produce and store gelatine not intended for human consumption in the same establishment. CHAPTER IV: REQUIREMENTS FOR FINISHED PRODUCTS
Food business operators must ensure that gelatine complies with the residue limits set out in the following table.
| Residue | Limit | |--------------------------|--------| | As | 1 ppm | | Pb | 5 ppm | | Cd | 0.5 ppm| | Hg | 0.15 ppm| | Cr | 10 ppm | | Cu | 30 ppm | | Zn | 50 ppm | | SO₂ (Reith Williams) | 50 ppm | | H₂O₂ (European Pharmacopoeia 1986 (V₂O₂)) | 10 ppm |
SECTION XV: COLLAGEN
1. Food business operators manufacturing collagen must ensure compliance with the requirements of this Section.
2. For the purpose of this Section, "tanning" means the hardening of hides, using vegetable tanning agents, chromium salts or other substances such as aluminium salts, ferric salts, silicic salts, aldehydes and quinones, or other synthetic hardening agents. CHAPTER I: REQUIREMENTS FOR RAW MATERIALS
3. For the production of collagen intended for use in food, the following raw materials may be used:
(a) hides and skins of farmed ruminant animals;
(b) pig skins and bones;
(c) poultry skin and bones;
(d) tendons;
(e) wild game hides and skins; and
(f) fish skin and bones.
4. The use of hides and skins is prohibited if they have undergone any tanning process, regardless of whether this process was completed.
5. Raw materials listed in point 1(a) to (d) must derive from animals which have been slaughtered in a slaughterhouse and whose carcases have been found fit for human consumption following ante-and post-mortem inspection or, in the case of hides and skins from wild game, found fit for human consumption.
6. Raw materials must come from establishments registered or approved under Regulation (EC) No …/2004 or under this Regulation.
7. Collection centres and tanneries may also supply raw material for the production of collagen intended for human consumption if the competent authority specifically authorises them for this purpose and they fulfil the following requirements.
(a) They must have storage rooms with hard floors and smooth walls that are easy to clean and disinfect and, where appropriate, provided with refrigeration facilities.
(b) The storage rooms must be kept in a satisfactory state of cleanliness and repair, so that they do not constitute a source of contamination for the raw materials.
(c) If raw material not in conformity with this Chapter is stored and/or processed in these premises, it must be segregated from raw material in conformity with this Chapter throughout the period of receipt, storage, processing and dispatch.
CHAPTER II: TRANSPORT AND STORAGE OF RAW MATERIALS
1. In place of the identification mark provided for in Annex II, Section I, a document indicating the establishment of origin and containing the information set out in the Appendix to this Annex must accompany raw materials during transport, when delivered to a collection centre or tannery and when delivered to the collagen-processing establishment.
- Official Publications Office is to insert official number of Regulation on the hygiene of foodstuffs.
2. Raw materials must be transported and stored chilled or frozen unless they are processed within 24 hours after their departure. However, degreased and dried bones or ossein, salted, dried and limed hides, and hides and skins treated with alkali or acid may be transported and stored at ambient temperature.
CHAPTER III: REQUIREMENTS FOR THE MANUFACTURE OF COLLAGEN
1. Collagen must be produced by a process that ensures that the raw material is subjected to a treatment involving washing, pH adjustment using acid or alkali followed by one or more rinses, filtration and extrusion or by an approved equivalent process.
2. After having been subjected to the process referred to in paragraph 1 above, collagen may undergo a drying process.
3. If a food business operator manufacturing collagen complies with the requirements applying to collagen intended for human consumption in respect of all the collagen that it produces, it may produce and store collagen not intended for human consumption in the same establishment. CHAPTER IV: REQUIREMENTS FOR FINISHED PRODUCTS
Food business operators must ensure that collagen complies with the residue limits set out in the following table.
| Residue | Limit | |--------------------------|---------| | As | 1 ppm | | Pb | 5 ppm | | Cd | 0,5 ppm | | Hg | 0,15 ppm| | Cr | 10 ppm | | Cu | 30 ppm | | Zn | 50 ppm | | SO₂ (Reith Williams) | 50 ppm | | H₂O₂ (European Pharmacopoeia 1986 (V₂O₂)) | 10 ppm |
CHAPTER V: LABELLING
Wrapping and packaging containing collagen must bear the words "collagen fit for human consumption" and indicate the date of preparation. MODEL DOCUMENT TO ACCOMPANY RAW MATERIAL DESTINED FOR THE PRODUCTION OF GELATINE OR COLLAGEN
I. Identification of raw material
Type of products: ................................................................................................................................. Date of manufacture: ............................................................................................................................ Type of packaging: ............................................................................................................................... Number of packages: ............................................................................................................................ Guaranteed storage period: .................................................................................................................. Net weight (kg): .................................................................................................................................
II. Origin of raw material
Address(es) and registration number(s) of the approved production establishment(s): .............. ...........................................................................................................................................................
III. Destination of raw material
The raw material will be sent: from: .................................................................................................................................................. (place of loading) to: .................................................................................................................................................. (country and place of destination)
by the following means of transport: .......................................................................................... Name and address of consignor: ........................................................................................................ Name and address of consignee: ........................................................................................................
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0cebec2abfcbf4176c992310be668e4ca04ae01c | REGULATION (EU) No 1169/2011 OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 25 October 2011
on the provision of food information to consumers, amending Regulations (EC) No 1924/2006 and (EC) No 1925/2006 of the European Parliament and of the Council, and repealing Commission Directive 87/250/EEC, Council Directive 90/496/EEC, Commission Directive 1999/10/EC, Directive 2000/13/EC of the European Parliament and of the Council, Commission Directives 2002/67/EC and 2008/5/EC and Commission Regulation (EC) No 608/2004
(Text with EEA relevance)
THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION,
Having regard to the Treaty on the Functioning of the European Union, and in particular Article 114 thereof,
Having regard to the proposal from the European Commission,
Having regard to the opinion of the European Economic and Social Committee (1),
Acting in accordance with the ordinary legislative procedure (2),
Whereas:
(1) Article 169 of the Treaty on the Functioning of the European Union (TFEU) provides that the Union is to contribute to the attainment of a high level of consumer protection by the measures it adopts pursuant to Article 114 thereof.
(2) The free movement of safe and wholesome food is an essential aspect of the internal market and contributes significantly to the health and well-being of citizens, and to their social and economic interests.
(3) In order to achieve a high level of health protection for consumers and to guarantee their right to information, it should be ensured that consumers are appropriately informed as regards the food they consume. Consumers’ choices can be influenced by, inter alia, health, economic, environmental, social and ethical considerations.
(4) According to Regulation (EC) No 178/2002 of the European Parliament and of the Council of 28 January 2002 laying down the general principles and requirements of food law, establishing the European Food Safety Authority and laying down procedures in matters of food safety (3) it is a general principle of food law to provide a basis for consumers to make informed choices in relation to food they consume and to prevent any practices that may mislead the consumer.
(5) Directive 2005/29/EC of the European Parliament and of the Council of 11 May 2005 concerning unfair business-to-consumer commercial practices in the internal market (4) covers certain aspects of the provision of information to consumers specifically to prevent misleading actions and omissions of information. The general principles on unfair commercial practices should be complemented by specific rules concerning the provision of food information to consumers.
(6) Union rules on food labelling applicable to all foods are laid down in Directive 2000/13/EC of the European Parliament and of the Council of 20 March 2000 on the approximation of the laws of the Member States relating to the labelling, presentation and advertising of foodstuffs (5). The majority of the provisions laid down in that Directive date back to 1978 and should therefore be updated.
(7) Council Directive 90/496/EEC of 24 September 1990 on nutrition labelling for foodstuffs (6) lays down rules on the content and presentation of nutrition information on prepacked foods. According to those rules, the inclusion of nutrition information is voluntary unless a nutrition-related claim is made concerning the food. The majority of the provisions laid down in that Directive date back to 1978 and should therefore be updated.
(8) The general labelling requirements are complemented by a number of provisions applicable to all foods in particular circumstances or to certain categories of foods. In addition, there are a number of specific rules which are applicable to specific foods.
(1) OJ C 77, 31.3.2009, p. 81. (2) Position of the European Parliament of 16 June 2010 (OJ C 236 E, 12.8.2011, p. 187) and position of the Council at first reading of 21 February 2011 (OJ C 102 E, 2.4.2011, p. 1). Position of the European Parliament of 6 July 2011 (not yet published in the Official Journal) and decision of the Council of 29 September 2011. (3) OJ L 31, 1.2.2002, p. 1. (4) OJ L 149, 11.6.2005, p. 22. (5) OJ L 109, 6.5.2000, p. 29. (6) OJ L 276, 6.10.1990, p. 40. (9) While the original objectives and the core components of the current labelling legislation are still valid, it is necessary to streamline it in order to ensure easier compliance and greater clarity for stakeholders and to modernise it in order to take account of new developments in the field of food information. This Regulation will both serve the interests of the internal market by simplifying the law, ensuring legal certainty and reducing administrative burden, and benefit citizens by requiring clear, comprehensible and legible labelling of foods.
(10) The general public has an interest in the relationship between diet and health and in the choice of an appropriate diet to suit individual needs. The Commission White Paper of 30 May 2007 on a Strategy for Europe on Nutrition, Overweight and Obesity related health issues (the 'Commission White Paper') noted that nutrition labelling is one important method of informing consumers about the composition of foods and of helping them to make an informed choice. The Commission Communication of 13 March 2007 entitled 'EU Consumer Policy strategy 2007-2013 — Empowering consumers, enhancing their welfare, effectively protecting them' underlined that allowing consumers to make an informed choice is essential both to effective competition and consumer welfare. Knowledge of the basic principles of nutrition and appropriate nutrition information on foods would contribute significantly towards enabling the consumer to make such an informed choice. Education and information campaigns are an important mechanism for improving consumer understanding of food information.
(11) In order to enhance legal certainty and ensure rationality and consistency of enforcement, it is appropriate to repeal Directives 90/496/EEC and 2000/13/EC and to replace them by a single regulation which ensures certainty for consumers and other stakeholders and reduces the administrative burden.
(12) For the sake of clarity, it is appropriate to repeal and include in this Regulation other horizontal acts, namely Commission Directive 87/250/EEC of 15 April 1987 on the indication of alcoholic strength by volume in the labelling of alcoholic beverages for sale to the ultimate consumer (1), Commission Directive 1999/10/EC of 8 March 1999 providing for derogations from the provisions of Article 7 of Council Directive 79/112/EEC as regards the labelling of foodstuffs (2), Commission Directive 2002/67/EC of 18 July 2002 on the labelling of foodstuffs containing quinine, and of foodstuffs containing caffeine (3), Commission Regulation (EC) No 608/2004 of 31 March 2004 concerning the labelling of foods and food ingredients with added phytosterols, phytosterol esters, phytostanols and/or phytostanol esters (4) and Commission Directive 2008/5/EC of 30 January 2008 concerning the compulsory indication on the labelling of certain foodstuffs of particulars other than those provided for in Directive 2000/13/EC of the European Parliament and of the Council (5).
(13) It is necessary to set common definitions, principles, requirements and procedures so as to form a clear framework and a common basis for Union and national measures governing food information.
(14) In order to follow a comprehensive and evolutionary approach to the information provided to consumers relating to food they consume, there should be a broad definition of food information law covering rules of a general and specific nature as well as a broad definition of food information covering information provided also by other means than the label.
(15) Union rules should apply only to undertakings, the concept of which implies a certain continuity of activities and a certain degree of organisation. Operations such as the occasional handling and delivery of food, the serving of meals and the selling of food by private persons, for example at charity events, or at local community fairs and meetings, should not fall within the scope of this Regulation.
(16) Food information law should provide sufficient flexibility to be able to keep up to date with new information requirements of consumers and ensure a balance between the protection of the internal market and the differences in the perception of consumers in the Member States.
(17) The prime consideration for requiring mandatory food information should be to enable consumers to identify and make appropriate use of a food and to make choices that suit their individual dietary needs. With this aim, food business operators should facilitate the accessibility of that information to the visually impaired.
(18) In order to enable food information law to adapt to consumers' changing needs for information, any considerations about the need for mandatory food information should also take account of the widely demonstrated interest of the majority of consumers in the disclosure of certain information.
(19) New mandatory food information requirements should however only be established if and where necessary, in accordance with the principles of subsidiarity, proportionality and sustainability.
(1) OJ L 113, 30.4.1987, p. 57. (2) OJ L 69, 16.3.1999, p. 22. (3) OJ L 191, 19.7.2002, p. 20. (4) OJ L 97, 1.4.2004, p. 44. (5) OJ L 27, 31.1.2008, p. 12. (20) Food information law should prohibit the use of information that would mislead the consumer in particular as to the characteristics of the food, food effects or properties, or attribute medicinal properties to foods. To be effective, that prohibition should also apply to the advertising and presentation of foods.
(21) In order to prevent a fragmentation of the rules concerning the responsibility of food business operators with respect to food information it is appropriate to clarify the responsibilities of food business operators in this area. That clarification should be in accordance with the responsibilities regarding the consumer referred to in Article 17 of Regulation (EC) No 178/2002.
(22) A list should be drawn up of all mandatory information which should in principle be provided for all foods intended for the final consumer and mass caterers. That list should maintain the information that is already required under existing Union legislation given that it is generally considered as a valuable acquis in respect of consumer information.
(23) In order to take account of changes and developments in the field of food information, provisions should be made to empower the Commission to enable certain particulars to be made available through alternative means. Consultation with stakeholders should facilitate timely and well-targeted changes of food information requirements.
(24) When used in the production of foods and still present therein, certain ingredients or other substances or products (such as processing aids) can cause allergies or intolerances in some people, and some of those allergies or intolerances constitute a danger to the health of those concerned. It is important that information on the presence of food additives, processing aids and other substances or products with a scientifically proven allergenic or intolerance effect should be given to enable consumers, particularly those suffering from a food allergy or intolerance, to make informed choices which are safe for them.
(25) In order to inform consumers of the presence of engineered nanomaterials in food, it is appropriate to provide for a definition of engineered nanomaterials. Taking into account the possibility of food containing or consisting of engineered nanomaterials being a novel food, the appropriate legislative framework for that definition should be considered in the context of the upcoming review of Regulation (EC) No 258/97 of the European Parliament and of the Council of 27 January 1997 concerning novel foods and novel food ingredients (1).
(26) Food labels should be clear and understandable in order to assist consumers who want to make better-informed food and dietary choices. Studies show that easy legibility is an important element in maximising the possibility for labelled information to influence its audience and that illegible product information is one of the main causes of consumer dissatisfaction with food labels. Therefore, a comprehensive approach should be developed in order to take into account all aspects related to legibility, including font, colour and contrast.
(27) In order to ensure the provision of food information, it is necessary to consider all ways of supplying food to consumers, including selling food by means of distance communication. Although it is clear that any food supplied through distance selling should meet the same information requirements as food sold in shops, it is necessary to clarify that in such cases the relevant mandatory food information should also be available before the purchase is concluded.
(28) The technology used in the freezing of foods has developed significantly during recent decades and has become widely used both to improve the circulation of goods on the Union internal market, and to reduce food safety risks. However, the freezing and later defrosting of certain foods, especially meat and fishery products, limits their possible further use and may also have an effect on their safety, taste and physical quality. Conversely, for other products, especially butter, freezing has no such effects. Therefore, where a product has been defrosted, the final consumer should be appropriately informed of its condition.
(29) The indication of the country of origin or of the place of provenance of a food should be provided whenever its absence is likely to mislead consumers as to the true country of origin or place of provenance of that product. In all cases, the indication of country of origin or place of provenance should be provided in a manner which does not deceive the consumer and on the basis of clearly defined criteria which ensure a level playing field for industry and improve consumers’ understanding of the information related to the country of origin or place of provenance of a food. Such criteria should not apply to indications related to the name or address of the food business operator.
(30) In some cases, food business operators may want to indicate the origin of a food on a voluntary basis to draw consumers’ attention to the qualities of their product. Such indications should also comply with harmonised criteria.
(1) OJ L 43, 14.2.1997, p. 1. (31) The indication of origin is currently mandatory for beef and beef products (1) in the Union following the bovine spongiform encephalopathy crisis and it has created consumer expectations. The impact assessment of the Commission confirms that the origin of meat appears to be consumers’ prime concern. There are other meats widely consumed in the Union, such as swine, sheep, goat and poultry meat. It is therefore appropriate to impose a mandatory declaration of origin for those products. The specific origin requirements could differ from one type of meat to another according to the characteristics of the animal species. It is appropriate to provide for the establishment through implementing rules of mandatory requirements that could vary from one type of meat to another taking into account the principle of proportionality and the administrative burden for food business operators and enforcement authorities.
(32) Mandatory origin provisions have been developed on the basis of vertical approaches for instance for honey (2), fruit and vegetables (3), fish (4), beef and beef products (5) and olive oil (6). There is a need to explore the possibility to extend mandatory origin labelling for other foods. It is therefore appropriate to request the Commission to prepare reports covering the following foods: types of meat other than beef, swine, sheep and poultry meat; milk; milk used as an ingredient in dairy products; meat used as an ingredient; unprocessed foods; single-ingredient products; and ingredients that represent more than 50 % of a food. Milk being one of the products for which an indication of origin is considered of particular interest, the Commission report on this product should be made available as soon as possible. Based on the conclusions of such reports, the Commission may submit proposals to modify the relevant Union provisions or may take new initiatives, where appropriate, on a sectoral basis.
(33) The Union’s non-preferential rules of origin are laid down in Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code (7) and its implementing provisions in Commission Regulation (EEC) No 2454/93 of 2 July 1993 laying down provisions for the implementation of Council Regulation (EEC) No 2913/92 establishing the Community Customs Code (8). Determination of the country of origin of foods will be based on those rules, which are well known to food business operators and administrations and should ease their implementation.
(34) The nutrition declaration for a food concerns information on the presence of energy and certain nutrients in foods. The mandatory provision of nutrition information on packaging should assist nutrition actions as part of public health policies which could involve the provision of scientific recommendations for nutrition education for the public and support informed food choices.
(35) To facilitate the comparison of products in different package sizes, it is appropriate to retain the requirement that the mandatory nutrition declaration should refer to 100 g or 100 ml amounts and, if appropriate, to allow additional portion-based declarations. Therefore, where food is prepacked and individual portions or consumption units are identified, a nutrition declaration per portion or per consumption unit, in addition to the expression per 100 g or per 100 ml, should be allowed. Furthermore, in order to provide comparable indications relating to portions or consumption units, the Commission should be empowered to adopt rules on the expression of the nutrition declaration per portion or per consumption unit for specific categories of food.
(36) The Commission White Paper highlighted certain nutritional elements of importance to public health such as saturated fat, sugars or sodium. Therefore, it is appropriate that the requirements on the mandatory provision of nutrition information should take into account such elements.
(37) Since one of the objectives pursued by this Regulation is to provide a basis to the final consumer for making informed choices, it is important to ensure in this respect that the final consumer easily understands the information provided on the labelling. Therefore it is appropriate to use on the labelling the term ‘salt’ instead of the corresponding term of the nutrient ‘sodium’.
(38) In the interest of consistency and coherence of Union law the voluntary inclusion of nutrition or health claims on food labels should be in accordance with the Regulation (EC) No 1924/2006 of the European Parliament and of the Council of 20 December 2006 on nutrition and health claims made on foods (9).
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(1) Regulation (EC) No 1760/2000 of the European Parliament and of the Council of 17 July 2000 establishing a system for the identification and registration of bovine animals and regarding the labelling of beef and beef products (OJ L 204, 11.8.2000, p. 1). (2) Council Directive 2001/110/EC of 20 December 2001 relating to honey (OJ L 10, 12.1.2002, p. 47). (3) Commission Regulation (EC) No 1580/2007 of 21 December 2007 laying down implementing rules of Council Regulations (EC) No 2200/96, (EC) No 2201/96 and (EC) No 1182/2007 in the fruit and vegetable sector (OJ L 350, 31.12.2007, p. 1). (4) Council Regulation (EC) No 104/2000 of 17 December 1999 on the common organisation of the markets in fishery and aquaculture products (OJ L 17, 21.1.2000, p. 22). (5) Regulation (EC) No 1760/2000. (6) Commission Regulation (EC) No 1019/2002 of 13 June 2002 on marketing standards for olive oil (OJ L 155, 14.6.2002, p. 27). (7) OJ L 302, 19.10.1992, p. 1. (8) OJ L 253, 11.10.1993, p. 1. (9) OJ L 404, 30.12.2006, p. 9. (39) To avoid unnecessary burdens on food business operators, it is appropriate to exempt from the mandatory provision of a nutrition declaration certain categories of foods that are unprocessed or for which nutrition information is not a determining factor for consumers’ purchasing decisions, or for which the packaging is too small to accommodate the mandatory labelling requirements, unless the obligation to provide such information is provided for under other Union rules.
(40) Taking into account the specific nature of alcoholic beverages, it is appropriate to invite the Commission to analyse further the information requirements for those products. Therefore, the Commission should, taking into account the need to ensure coherence with other relevant Union policies, produce a report within 3 years of the entry into force of this Regulation concerning the application of the requirements to provide information on ingredients and nutrition information to alcoholic beverages. In addition, taking into account the resolution of the European Parliament of 5 September 2007 on an European Union strategy to support Member States in reducing alcohol-related harm (1), the opinion of the European Economic and Social Committee (2), the work of the Commission, and general public concern about alcohol-related harm especially to young and vulnerable consumers, the Commission, after consultation with stakeholders and the Member States, should consider the need for a definition of beverages such as ‘alcopops’, which are specifically targeted at young people. The Commission should also, if appropriate, propose specific requirements relating to alcoholic beverages in the context of this Regulation.
(41) To appeal to the average consumer and to serve the informative purpose for which it is introduced, and given the current level of knowledge on the subject of nutrition, the nutrition information provided should be simple and easily understood. To have the nutrition information partly in the principal field of vision, commonly known as the ‘front of pack’, and partly on another side on the pack, for instance the ‘back of pack’, might confuse consumers. Therefore, the nutrition declaration should be in the same field of vision. In addition, on a voluntary basis, the most important elements of the nutrition information may be repeated in the principal field of vision, in order to help consumers to easily see the essential nutrition information when purchasing foods. A free choice as to the information that could be repeated might confuse consumers. Therefore it is necessary to clarify which information may be repeated.
(42) In order to encourage food business operators to provide on a voluntary basis the information contained in the nutrition declaration for foods such as alcoholic beverages and non-prepacked foods that may be exempted from the nutrition declaration, the possibility should be given to declare only limited elements of the nutrition declaration. It is nevertheless appropriate to clearly establish the information that may be provided on a voluntary basis in order to avoid misleading the consumer by the free choice of the food business operator.
(43) There have been recent developments in the expression of the nutrition declaration, other than per 100 g, per 100 ml or per portion, or in its presentation, through the use of graphical forms or symbols, by some Member States and organisations in the food sector. Such additional forms of expression and presentation may help consumers to better understand the nutrition declaration. However, there is insufficient evidence across all the Union on how the average consumer understands and uses the alternative forms of expression or presentation of the information. Therefore, it is appropriate to allow for different forms of expression and presentation to be developed on the basis of criteria established in this Regulation and to invite the Commission to prepare a report regarding the use of those forms of expression and presentation, their effect on the internal market and the advisability of further harmonisation.
(44) In order to assist the Commission in producing that report, Member States should provide the Commission with the relevant information on the use of additional forms of expression and presentation of the nutrition declaration on the market in their territory. In order to do so, Member States should be empowered to request food business operators placing on the market in their territory foods bearing additional forms of expression or presentation to notify national authorities of the use of such additional forms and of the relevant justifications regarding the fulfilment of the requirements set out in this Regulation.
(45) It is desirable to ensure a certain level of consistency in the development of additional forms of expression and presentation of the nutrition declaration. It is therefore appropriate to promote the constant exchange and sharing of best practices and experience between Member States and with the Commission and to promote the participation of stakeholders in such exchanges.
(46) The declaration in the same field of vision of the amounts of nutritional elements and comparative indicators in an easily recognisable form to enable an assessment of the nutritional properties of a food should be considered in its entirety as part of the nutrition declaration and should not be treated as a group of individual claims.
(1) OJ C 187 E, 24.7.2008, p. 160. (2) OJ C 77, 31.3.2009, p. 81. Experience shows that in many cases voluntary food information is provided to the detriment of the clarity of the mandatory food information. Therefore, criteria should be provided to help food business operators and enforcement authorities to strike a balance between the provision of mandatory and voluntary food information.
Member States should retain the right, depending on local practical conditions and circumstances, to lay down rules in respect of the provision of information concerning non-prepacked foods. Although in such cases the consumer demand for other information is limited, information on potential allergens is considered very important. Evidence suggests that most food allergy incidents can be traced back to non-prepacked food. Therefore information on potential allergens should always be provided to the consumer.
As regards the matters specifically harmonised by this Regulation, Member States should not be able to adopt national provisions unless authorised by Union law. This Regulation should not prevent Member States from adopting national measures concerning matters not specifically harmonised by this Regulation. However, such national measures should not prohibit, impede or restrict the free movement of goods that are in conformity with this Regulation.
Union consumers show an increasing interest in the implementation of the Union animal welfare rules at the time of slaughter, including whether the animal was stunned before slaughter. In this respect, a study on the opportunity to provide consumers with the relevant information on the stunning of animals should be considered in the context of a future Union strategy for the protection and welfare of animals.
Food information rules should be able to adapt to a rapidly changing social, economic and technological environment.
Member States should carry out official controls in order to enforce compliance with this Regulation in accordance with Regulation (EC) No 882/2004 of the European Parliament and of the Council of 29 April 2004 on official controls performed to ensure the verification of compliance with feed and food law, animal health and animal welfare rules (1).
References to Directive 90/496/EEC in Regulation (EC) No 1924/2006 and in Regulation (EC) No 1925/2006 of the European Parliament and of the Council of 20 December 2006 on the addition of vitamins and minerals and of certain other substances to foods (2) should be updated to take this Regulation into account. Regulations (EC) No 1924/2006 and (EC) No 1925/2006 should therefore be amended accordingly.
Irregular and frequent updating of food information requirements may impose considerable administrative burdens on food businesses, especially small and medium-sized enterprises. It is therefore appropriate to ensure that measures that may be adopted by the Commission in exercising the powers conferred by this Regulation apply on the same day in any calendar year following an appropriate transitional period. Derogations from this principle should be permitted in cases of urgency where the purpose of the measures concerned is the protection of human health.
In order to enable food business operators to adapt the labelling of their products to the new requirements introduced by this Regulation, it is important to provide for appropriate transitional periods for the application of this Regulation.
Given the substantial changes in the requirements related to nutrition labelling introduced by this Regulation, in particular changes in relation to the content of the nutrition declaration, it is appropriate to authorise food business operators to anticipate the application of this Regulation.
Since the objectives of this Regulation cannot be sufficiently achieved by the Member States and can therefore be better achieved at Union level, the Union may adopt measures, in accordance with the principle of subsidiarity as set out in Article 5 of the Treaty on European Union. In accordance with the principle of proportionality, as set out in that Article, this Regulation does not go beyond what is necessary in order to achieve those objectives.
The power to adopt delegated acts in accordance with Article 290 TFEU should be delegated to the Commission in respect of, inter alia, the availability of certain mandatory particulars by means other than on the package or on the label, the list of foods not required to bear a list of ingredients, the re-examination of the list of substances or products causing allergies or intolerances, or the list of nutrients that may be declared on a voluntary basis. It is of particular importance that the Commission carry out appropriate consultations during its preparatory work, including at expert level. The Commission, when preparing and drawing up delegated acts, should ensure simultaneous, timely and appropriate transmission of relevant documents to the European Parliament and to the Council.
(1) OJ L 165, 30.4.2004, p. 1. (2) OJ L 404, 30.12.2006, p. 26. In order to ensure uniform conditions for the implementation of this Regulation, implementing powers should be conferred on the Commission to adopt implementing acts in relation to, inter alia, the modalities of expression of one or more particulars by means of pictograms or symbols instead of words or numbers, the manner of indicating the date of minimum durability, the manner of indicating the country of origin or place of provenance for meat, the precision of the declared values for the nutrition declaration, or the expression per portion or per consumption unit of the nutrition declaration. Those powers should be exercised in accordance with Regulation (EU) No 182/2011 of the European Parliament and of the Council of 16 February 2011 laying down the rules and general principles concerning mechanisms for control by Member States of the Commission’s exercise of implementing powers (1).
HAVE ADOPTED THIS REGULATION:
CHAPTER I GENERAL PROVISIONS
Article 1 Subject matter and scope
1. This Regulation provides the basis for the assurance of a high level of consumer protection in relation to food information, taking into account the differences in the perception of consumers and their information needs whilst ensuring the smooth functioning of the internal market.
2. This Regulation establishes the general principles, requirements and responsibilities governing food information, and in particular food labelling. It lays down the means to guarantee the right of consumers to information and procedures for the provision of food information, taking into account the need to provide sufficient flexibility to respond to future developments and new information requirements.
3. This Regulation shall apply to food business operators at all stages of the food chain, where their activities concern the provision of food information to consumers. It shall apply to all foods intended for the final consumer, including foods delivered by mass caterers, and foods intended for supply to mass caterers.
This Regulation shall apply to catering services provided by transport undertakings when the departure takes place on the territories of the Member States to which the Treaties apply.
4. This Regulation shall apply without prejudice to labelling requirements provided for in specific Union provisions applicable to particular foods.
Article 2 Definitions
1. For the purposes of this Regulation, the following definitions shall apply:
(a) the definitions of ‘food’, ‘food law’, ‘food business’, ‘food business operator’, ‘retail’, ‘placing on the market’ and ‘final consumer’ in Article 2 and in points (1), (2), (3), (7), (8) and (18) of Article 3 of Regulation (EC) No 178/2002;
(b) the definitions of ‘processing’, ‘unprocessed products’ and ‘processed products’ in points (m), (n) and (o) of Article 2(1) of Regulation (EC) No 852/2004 of the European Parliament and of the Council of 29 April 2004 on the hygiene of foodstuffs (2);
(c) the definition of ‘food enzyme’ in point (a) of Article 3(2) of Regulation (EC) No 1332/2008 of the European Parliament and of the Council of 16 December 2008 on food enzymes (3);
(d) the definitions of ‘food additive’, ‘processing aid’ and ‘carrier’ in points (a) and (b) of Article 3(2) of, and in point 5 of Annex I to, Regulation (EC) No 1333/2008 of the European Parliament and of the Council of 16 December 2008 on food additives (4);
(e) the definition of ‘flavourings’ in point (a) of Article 3(2) of Regulation (EC) No 1334/2008 of the European Parliament and of the Council of 16 December 2008 on flavourings and certain food ingredients with flavouring properties for use in and on foods (5);
(f) the definitions of ‘meat’, ‘mechanically separated meat’, ‘meat preparations’, ‘fishery products’ and ‘meat products’ in points 1.1, 1.14, 1.15, 3.1 and 7.1 of Annex I to Regulation (EC) No 853/2004 of the European Parliament and of the Council of 29 April 2004 laying down specific hygiene rules for food of animal origin (6);
(g) the definition of ‘advertising’ in point (a) of Article 2 of Directive 2006/114/EC of the European Parliament and of the Council of 12 December 2006 concerning misleading and comparative advertising (7).
(1) OJ L 55, 28.2.2011, p. 13.
(2) OJ L 139, 30.4.2004, p. 1.
(3) OJ L 354, 31.12.2008, p. 7.
(4) OJ L 354, 31.12.2008, p. 16.
(5) OJ L 354, 31.12.2008, p. 34.
(6) OJ L 139, 30.4.2004, p. 55.
(7) OJ L 376, 27.12.2006, p. 21. 2. The following definitions shall also apply:
(a) ‘food information’ means information concerning a food and made available to the final consumer by means of a label, other accompanying material, or any other means including modern technology tools or verbal communication;
(b) ‘food information law’ means the Union provisions governing the food information, and in particular labelling, including rules of a general nature applicable to all foods in particular circumstances or to certain categories of foods and rules which apply only to specific foods;
(c) ‘mandatory food information’ means the particulars that are required to be provided to the final consumer by Union provisions;
(d) ‘mass caterer’ means any establishment (including a vehicle or a fixed or mobile stall), such as restaurants, canteens, schools, hospitals and catering enterprises in which, in the course of a business, food is prepared to be ready for consumption by the final consumer;
(e) ‘prepacked food’ means any single item for presentation as such to the final consumer and to mass caterers, consisting of a food and the packaging into which it was put before being offered for sale, whether such packaging encloses the food completely or only partially, but in any event in such a way that the contents cannot be altered without opening or changing the packaging; ‘prepacked food’ does not cover foods packed on the sales premises at the consumer’s request or prepacked for direct sale;
(f) ‘ingredient’ means any substance or product, including flavourings, food additives and food enzymes, and any constituent of a compound ingredient, used in the manufacture or preparation of a food and still present in the finished product, even if in an altered form; residues shall not be considered as ‘ingredients’;
(g) ‘place of provenance’ means any place where a food is indicated to come from, and that is not the ‘country of origin’ as determined in accordance with Articles 23 to 26 of Regulation (EEC) No 2913/92; the name, business name or address of the food business operator on the label shall not constitute an indication of the country of origin or place of provenance of food within the meaning of this Regulation;
(h) ‘compound ingredient’ means an ingredient that is itself the product of more than one ingredient;
(i) ‘label’ means any tag, brand, mark, pictorial or other descriptive matter, written, printed, stencilled, marked, embossed or impressed on, or attached to the packaging or container of food;
(j) ‘labelling’ means any words, particulars, trade marks, brand name, pictorial matter or symbol relating to a food and placed on any packaging, document, notice, label, ring or collar accompanying or referring to such food;
(k) ‘field of vision’ means all the surfaces of a package that can be read from a single viewing point;
(l) ‘principal field of vision’ means the field of vision of a package which is most likely to be seen at first glance by the consumer at the time of purchase and that enables the consumer to immediately identify a product in terms of its character or nature and, if applicable, its brand name. If a package has several identical principal fields of vision, the principal field of vision is the one chosen by the food business operator;
(m) ‘legibility’ means the physical appearance of information, by means of which the information is visually accessible to the general population and which is determined by various elements, inter alia, font size, letter spacing, spacing between lines, stroke width, type colour, typeface, width-height ratio of the letters, the surface of the material and significant contrast between the print and the background;
(n) ‘legal name’ means the name of a food prescribed in the Union provisions applicable to it or, in the absence of such Union provisions, the name provided for in the laws, regulations and administrative provisions applicable in the Member State in which the food is sold to the final consumer or to mass caterers;
(o) ‘customary name’ means a name which is accepted as the name of the food by consumers in the Member State in which that food is sold, without that name needing further explanation;
(p) ‘descriptive name’ means a name providing a description of the food, and if necessary of its use, which is sufficiently clear to enable consumers to know its true nature and distinguish it from other products with which it might be confused;
(q) ‘primary ingredient’ means an ingredient or ingredients of a food that represent more than 50 % of that food or which are usually associated with the name of the food by the consumer and for which in most cases a quantitative indication is required; (r) ‘date of minimum durability of a food’ means the date until which the food retains its specific properties when properly stored;
(s) ‘nutrient’ means protein, carbohydrate, fat, fibre, sodium, vitamins and minerals listed in point 1 of Part A of Annex XIII to this Regulation, and substances which belong to or are components of one of those categories;
(t) ‘engineered nanomaterial’ means any intentionally produced material that has one or more dimensions of the order of 100 nm or less or that is composed of discrete functional parts, either internally or at the surface, many of which have one or more dimensions of the order of 100 nm or less, including structures, agglomerates or aggregates, which may have a size above the order of 100 nm but retain properties that are characteristic of the nanoscale.
Properties that are characteristic of the nanoscale include:
(i) those related to the large specific surface area of the materials considered; and/or
(ii) specific physico-chemical properties that are different from those of the non-nanoform of the same material;
(u) ‘means of distance communication’ means any means which, without the simultaneous physical presence of the supplier and the consumer, may be used for the conclusion of a contract between those parties.
3. When food information law establishes new requirements, a transitional period after the entry into force of the new requirements shall be granted, except in duly justified cases. During such transitional period, foods bearing labels not complying with the new requirements may be placed on the market, and stocks of such foods that have been placed on the market before the end of the transitional period may continue to be sold until exhausted.
4. An open and transparent public consultation shall be conducted, including with stakeholders, directly or through representative bodies, during the preparation, evaluation and revision of food information law, except where the urgency of the matter does not allow it.
Article 4
Principles governing mandatory food information
1. Where mandatory food information is required by food information law, it shall concern information that falls, in particular, into one of the following categories:
(a) information on the identity and composition, properties or other characteristics of the food;
(b) information on the protection of consumers’ health and the safe use of a food. In particular, it shall concern information on:
(i) compositional attributes that may be harmful to the health of certain groups of consumers;
(ii) durability, storage and safe use;
(iii) the health impact, including the risks and consequences related to harmful and hazardous consumption of a food;
(c) information on nutritional characteristics so as to enable consumers, including those with special dietary requirements, to make informed choices.
2. When considering the need for mandatory food information and to enable consumers to make informed choices, account shall be taken of a widespread need on the part of the majority of consumers for certain information to which they attach significant value or of any generally accepted benefits to the consumer. Article 5 Consultation of the European Food Safety Authority
Any Union measure in the field of food information law which is likely to have an effect on public health shall be adopted after consultation of the European Food Safety Authority ('the Authority').
CHAPTER III GENERAL FOOD INFORMATION REQUIREMENTS AND RESPONSIBILITIES OF FOOD BUSINESS OPERATORS
Article 6 Basic requirement
Any food intended for supply to the final consumer or to mass caterers shall be accompanied by food information in accordance with this Regulation.
Article 7 Fair information practices
1. Food information shall not be misleading, particularly:
(a) as to the characteristics of the food and, in particular, as to its nature, identity, properties, composition, quantity, durability, country of origin or place of provenance, method of manufacture or production;
(b) by attributing to the food effects or properties which it does not possess;
(c) by suggesting that the food possesses special characteristics when in fact all similar foods possess such characteristics, in particular by specifically emphasising the presence or absence of certain ingredients and/or nutrients;
(d) by suggesting, by means of the appearance, the description or pictorial representations, the presence of a particular food or an ingredient, while in reality a component naturally present or an ingredient normally used in that food has been substituted with a different component or a different ingredient.
2. Food information shall be accurate, clear and easy to understand for the consumer.
3. Subject to derogations provided for by Union law applicable to natural mineral waters and foods for particular nutritional uses, food information shall not attribute to any food the property of preventing, treating or curing a human disease, nor refer to such properties.
4. Paragraphs 1, 2 and 3 shall also apply to:
(a) advertising;
(b) the presentation of foods, in particular their shape, appearance or packaging, the packaging materials used, the way in which they are arranged and the setting in which they are displayed.
Article 8 Responsibilities
1. The food business operator responsible for the food information shall be the operator under whose name or business name the food is marketed or, if that operator is not established in the Union, the importer into the Union market.
2. The food business operator responsible for the food information shall ensure the presence and accuracy of the food information in accordance with the applicable food information law and requirements of relevant national provisions.
3. Food business operators which do not affect food information shall not supply food which they know or presume, on the basis of the information in their possession as professionals, to be non-compliant with the applicable food information law and requirements of relevant national provisions.
4. Food business operators, within the businesses under their control, shall not modify the information accompanying a food if such modification would mislead the final consumer or otherwise reduce the level of consumer protection and the possibilities for the final consumer to make informed choices. Food business operators are responsible for any changes they make to food information accompanying a food.
5. Without prejudice to paragraphs 2 to 4, food business operators, within the businesses under their control, shall ensure compliance with the requirements of food information law and relevant national provisions which are relevant to their activities and shall verify that such requirements are met.
6. Food business operators, within the businesses under their control, shall ensure that information relating to non-prepacked food intended for the final consumer or for supply to mass caterers shall be transmitted to the food business operator receiving the food in order to enable, when required, the provision of mandatory food information to the final consumer.
7. In the following cases, food business operators, within the businesses under their control, shall ensure that the mandatory particulars required under Articles 9 and 10 shall appear on the prepackaging or on a label attached thereto, or on the commercial documents referring to the foods where it can be guaranteed that such documents either accompany the food to which they refer or were sent before or at the same time as delivery:
(a) where prepacked food is intended for the final consumer but marketed at a stage prior to sale to the final consumer and where sale to a mass caterer is not involved at that stage;
(b) where prepacked food is intended for supply to mass caterers for preparation, processing, splitting or cutting up.
Notwithstanding the first subparagraph, food business operators shall ensure that the particulars referred to in points (a), (f), (g) and (h) of Article 9(1) also appear on the external packaging in which the prepacked foods are presented for marketing.
8. Food business operators that supply to other food business operators food not intended for the final consumer or to mass caterers shall ensure that those other food business operators are provided with sufficient information to enable them, where appropriate, to meet their obligations under paragraph 2.
CHAPTER IV MANDATORY FOOD INFORMATION SECTION 1 Content and presentation
Article 9 List of mandatory particulars
1. In accordance with Articles 10 to 35 and subject to the exceptions contained in this Chapter, indication of the following particulars shall be mandatory:
(a) the name of the food;
(b) the list of ingredients;
(c) any ingredient or processing aid listed in Annex II or derived from a substance or product listed in Annex II causing allergies or intolerances used in the manufacture or preparation of a food and still present in the finished product, even if in an altered form;
(d) the quantity of certain ingredients or categories of ingredients;
(e) the net quantity of the food;
(f) the date of minimum durability or the ‘use by’ date;
(g) any special storage conditions and/or conditions of use;
(h) the name or business name and address of the food business operator referred to in Article 8(1);
(i) the country of origin or place of provenance where provided for in Article 26;
(j) instructions for use where it would be difficult to make appropriate use of the food in the absence of such instructions;
(k) with respect to beverages containing more than 1.2 % by volume of alcohol, the actual alcoholic strength by volume;
(l) a nutrition declaration.
2. The particulars referred to in paragraph 1 shall be indicated with words and numbers. Without prejudice to Article 35, they may additionally be expressed by means of pictograms or symbols.
3. Where the Commission adopts delegated and implementing acts referred to in this Article, the particulars referred to in paragraph 1 may alternatively be expressed by means of pictograms or symbols instead of words or numbers.
In order to ensure that consumers benefit from other means of expression of mandatory food information than words and numbers, and provided that the same level of information as with words and numbers is ensured, the Commission, taking into account evidence of uniform consumer understanding, may establish, by means of delegated acts in accordance with Article 51, the criteria subject to which one or more particulars referred to in paragraph 1 may be expressed by pictograms or symbols instead of words or numbers.
4. For the purpose of ensuring the uniform implementation of paragraph 3 of this Article, the Commission may adopt implementing acts on the modalities of application of the criteria defined in accordance with paragraph 3 to express one or more particulars by means of pictograms or symbols instead of words or numbers. Those implementing acts shall be adopted in accordance with the examination procedure referred to in Article 48(2).
Article 10 Additional mandatory particulars for specific types or categories of foods
1. In addition to the particulars listed in Article 9(1), additional mandatory particulars for specific types or categories of foods are laid down in Annex III.
2. In order to ensure consumer information with respect to specific types or categories of foods and to take account of technical progress, scientific developments, the protection of consumers’ health or the safe use of a food, the Commission may amend Annex III by means of delegated acts, in accordance with Article 51.
Where, in the case of the emergence of a risk to consumers’ health, imperative grounds of urgency so require, the procedure provided for in Article 52 shall apply to delegated acts adopted pursuant to this Article.
Article 11 Weights and measures Article 9 shall be without prejudice to more specific Union provisions regarding weights and measures.
Article 12 Availability and placement of mandatory food information
1. Mandatory food information shall be available and shall be easily accessible, in accordance with this Regulation, for all foods.
2. In the case of prepacked food, mandatory food information shall appear directly on the package or on a label attached thereto.
3. In order to ensure that consumers benefit from other means of provision of mandatory food information better adapted for certain mandatory particulars, and provided that the same level of information as by means of the package or the label is ensured, the Commission, taking into account evidence of uniform consumer understanding and of the wide use of these means by consumers, may establish, by means of delegated acts in accordance with Article 51, criteria subject to which certain mandatory particulars may be expressed by means other than on the package or on the label.
4. For the purposes of ensuring the uniform implementation of paragraph 3 of this Article, the Commission may adopt implementing acts on the modalities of application of the criteria referred to in paragraph 3 in order to express certain mandatory particulars by means other than on the package or on the label. Those implementing acts shall be adopted in accordance with the examination procedure referred to in Article 48(2).
5. In the case of non-prepacked food, the provisions of Article 44 shall apply.
Article 13 Presentation of mandatory particulars
1. Without prejudice to the national measures adopted under Article 44(2), mandatory food information shall be marked in a conspicuous place in such a way as to be easily visible, clearly legible and, where appropriate, indelible. It shall not in any way be hidden, obscured, detracted from or interrupted by any other written or pictorial matter or any other intervening material.
2. Without prejudice to specific Union provisions applicable to particular foods, when appearing on the package or on the label attached thereto, the mandatory particulars listed in Article 9(1) shall be printed on the package or on the label in such a way as to ensure clear legibility, in characters using a font size where the x-height, as defined in Annex IV, is equal to or greater than 1,2 mm.
3. In case of packaging or containers the largest surface of which has an area of less than 80 cm², the x-height of the font size referred to in paragraph 2 shall be equal to or greater than 0,9 mm.
4. For the purpose of achieving the objectives of this Regulation, the Commission shall, by means of delegated acts in accordance with Article 51, establish rules for legibility.
For the same purpose as referred to in the first subparagraph, the Commission may, by means of delegated acts in accordance with Article 51, extend the requirements under paragraph 5 of this Article to additional mandatory particulars for specific types or categories of foods.
5. The particulars listed in points (a), (e) and (k) of Article 9(1) shall appear in the same field of vision.
6. Paragraph 5 of this Article shall not apply in the cases specified in Article 16(1) and (2).
Article 14 Distance selling
1. Without prejudice to the information requirements laid down in Article 9, in the case of prepacked foods offered for sale by means of distance communication:
(a) mandatory food information, except the particulars provided in point (f) of Article 9(1), shall be available before the purchase is concluded and shall appear on the material supporting the distance selling or be provided through other appropriate means clearly identified by the food business operator. When other appropriate means are used, the mandatory food information shall be provided without the food business operator charging consumers supplementary costs;
(b) all mandatory particulars shall be available at the moment of delivery. 2. In the case of non-prepacked foods offered for sale by means of distance communication, the particulars required under Article 44 shall be made available in accordance with paragraph 1 of this Article.
3. Point (a) of paragraph 1 shall not apply to foods offered for sale by means of automatic vending machines or automated commercial premises.
**Article 15**
**Language requirements**
1. Without prejudice to Article 9(3), mandatory food information shall appear in a language easily understood by the consumers of the Member States where a food is marketed.
2. Within their own territory, the Member States in which a food is marketed may stipulate that the particulars shall be given in one or more languages from among the official languages of the Union.
3. Paragraphs 1 and 2 shall not preclude the particulars from being indicated in several languages.
**Article 16**
**Omission of certain mandatory particulars**
1. In the case of glass bottles intended for reuse which are indelibly marked and which therefore bear no label, ring or collar only the particulars listed in points (a), (c), (e), (f) and (l) of Article 9(1) shall be mandatory.
2. In the case of packaging or containers the largest surface of which has an area of less than 10 cm² only the particulars listed in points (a), (c), (e) and (f) of Article 9(1) shall be mandatory on the package or on the label. The particulars referred to in point (b) of Article 9(1) shall be provided through other means or shall be made available at the request of the consumer.
3. Without prejudice to other Union provisions requiring a mandatory nutrition declaration, the declaration referred to in point (l) of Article 9(1) shall not be mandatory for the foods listed in Annex V.
4. Without prejudice to other Union provisions requiring a list of ingredients or a mandatory nutrition declaration, the particulars referred to in points (b) and (l) of Article 9(1) shall not be mandatory for beverages containing more than 1.2 % by volume of alcohol.
By 13 December 2014, the Commission shall produce a report concerning the application of Article 18 and Article 30(1) to the products referred to in this paragraph, and addressing whether alcoholic beverages should in future be covered, in particular, by the requirement to provide the information on the energy value, and the reasons justifying possible exemptions, taking into account the need to ensure coherence with other relevant Union policies. In this context, the Commission shall consider the need to propose a definition of ‘alcopops’.
The Commission shall accompany that report by a legislative proposal, if appropriate, determining the rules for a list of ingredients or a mandatory nutrition declaration for those products.
**SECTION 2**
**Detailed provisions on mandatory particulars**
**Article 17**
**Name of the food**
1. The name of the food shall be its legal name. In the absence of such a name, the name of the food shall be its customary name, or, if there is no customary name or the customary name is not used, a descriptive name of the food shall be provided.
2. The use in the Member State of marketing of the name of the food under which the product is legally manufactured and marketed in the Member State of production shall be allowed. However, where the application of the other provisions of this Regulation, in particular those set out in Article 9, would not enable consumers in the Member State of marketing to know the true nature of the food and to distinguish it from foods with which they could confuse it, the name of the food shall be accompanied by other descriptive information which shall appear in proximity to the name of the food.
3. In exceptional cases, the name of the food in the Member State of production shall not be used in the Member State of marketing when the food which it designates in the Member State of production is so different, as regards its composition or manufacture, from the food known under that name in the Member State of marketing that paragraph 2 is not sufficient to ensure, in the Member State of marketing, correct information for consumers.
4. The name of the food shall not be replaced with a name protected as intellectual property, brand name or fancy name.
5. Specific provisions on the name of the food and particulars that shall accompany it are laid down in Annex VI.
**Article 18**
**List of ingredients**
1. The list of ingredients shall be headed or preceded by a suitable heading which consists of or includes the word ‘ingredients’. It shall include all the ingredients of the food, in descending order of weight, as recorded at the time of their use in the manufacture of the food.
2. Ingredients shall be designated by their specific name, where applicable, in accordance with the rules laid down in Article 17 and in Annex VI.
3. All ingredients present in the form of engineered nanomaterials shall be clearly indicated in the list of ingredients. The names of such ingredients shall be followed by the word ‘nano’ in brackets.
4. Technical rules for applying paragraphs 1 and 2 of this Article are laid down in Annex VII.
5. For the purposes of achieving the objectives of this Regulation, the Commission shall, by means of delegated acts in accordance with Article 51, adjust and adapt the definition of engineered nanomaterials referred to in point (t) of Article 2(2) to technical and scientific progress or to definitions agreed at international level.
Article 19
Omission of the list of ingredients
1. The following foods shall not be required to bear a list of ingredients:
(a) fresh fruit and vegetables, including potatoes, which have not been peeled, cut or similarly treated;
(b) carbonated water, the description of which indicates that it has been carbonated;
(c) fermentation vinegars derived exclusively from a single basic product, provided that no other ingredient has been added;
(d) cheese, butter, fermented milk and cream, to which no ingredient has been added other than lactic products, food enzymes and micro-organism cultures essential to manufacture, or in the case of cheese other than fresh cheese and processed cheese the salt needed for its manufacture;
(e) foods consisting of a single ingredient, where:
(i) the name of the food is identical to the ingredient name; or
(ii) the name of the food enables the nature of the ingredient to be clearly identified.
2. In order to take into account the relevance for the consumer of a list of ingredients for specific types or categories of foods, the Commission may, in exceptional cases, by means of delegated acts, in accordance with Article 51, supplement paragraph 1 of this Article, provided that omissions do not result in the final consumer or mass caterers being inadequately informed.
Article 20
Omission of constituents of food from the list of ingredients
Without prejudice to Article 21, the following constituents of a food shall not be required to be included in the list of ingredients:
(a) the constituents of an ingredient which have been temporarily separated during the manufacturing process and later reintroduced but not in excess of their original proportions;
(b) food additives and food enzymes:
(i) whose presence in a given food is solely due to the fact that they were contained in one or more ingredients of that food, in accordance with the carry-over principle referred to in points (a) and (b) of Article 18(1) of Regulation (EC) No 1333/2008, provided that they serve no technological function in the finished product; or
(ii) which are used as processing aids;
(c) carriers and substances which are not food additives but are used in the same way and with the same purpose as carriers, and which are used in the quantities strictly necessary;
(d) substances which are not food additives but are used in the same way and with the same purpose as processing aids and are still present in the finished product, even if in an altered form;
(e) water:
(i) where the water is used during the manufacturing process solely for the reconstitution of an ingredient used in concentrated or dehydrated form; or
(ii) in the case of a liquid medium which is not normally consumed.
Article 21
Labelling of certain substances or products causing allergies or intolerances
1. Without prejudice to the rules adopted under Article 44(2), the particulars referred to in point (c) of Article 9(1) shall meet the following requirements:
(a) they shall be indicated in the list of ingredients in accordance with the rules laid down in Article 18(1), with a clear reference to the name of the substance or product as listed in Annex II; and (b) the name of the substance or product as listed in Annex II shall be emphasised through a typeset that clearly distinguishes it from the rest of the list of ingredients, for example by means of the font, style or background colour.
In the absence of a list of ingredients, the indication of the particulars referred to in point (c) of Article 9(1) shall comprise the word 'contains' followed by the name of the substance or product as listed in Annex II.
Where several ingredients or processing aids of a food originate from a single substance or product listed in Annex II, the labelling shall make it clear for each ingredient or processing aid concerned.
The indication of the particulars referred to in point (c) of Article 9(1) shall not be required in cases where the name of the food clearly refers to the substance or product concerned.
2. In order to ensure better information for consumers and to take account of the most recent scientific progress and technical knowledge, the Commission shall systematically re-examine and, where necessary, update the list in Annex II by means of delegated acts, in accordance with Article 51.
Where, in the case of the emergence of a risk to consumers' health, imperative grounds of urgency so require, the procedure provided for in Article 52 shall apply to delegated acts adopted pursuant to this Article.
Article 22
Quantitative indication of ingredients
1. The indication of the quantity of an ingredient or category of ingredients used in the manufacture or preparation of a food shall be required where the ingredient or category of ingredients concerned:
(a) appears in the name of the food or is usually associated with that name by the consumer;
(b) is emphasised on the labelling in words, pictures or graphics; or
(c) is essential to characterise a food and to distinguish it from products with which it might be confused because of its name or appearance.
2. Technical rules for applying paragraph 1, including specific cases where the quantitative indication shall not be required in respect of certain ingredients, are laid down in Annex VIII.
Article 23
Net quantity
1. The net quantity of a food shall be expressed using litres, centilitres, millilitres, kilograms or grams, as appropriate:
(a) in units of volume in the case of liquid products;
(b) in units of mass in the case of other products.
2. In order to ensure a better understanding by the consumer of the food information on the labelling, the Commission may establish for certain specified foods, by means of delegated acts, in accordance with Article 51, a manner for the expression of the net quantity other than the one laid down in paragraph 1 of this Article.
3. Technical rules for applying paragraph 1, including specific cases where the indication of the net quantity shall not be required, are laid down in Annex IX.
Article 24
Minimum durability date, ‘use by’ date and date of freezing
1. In the case of foods which, from a microbiological point of view, are highly perishable and are therefore likely after a short period to constitute an immediate danger to human health, the date of minimum durability shall be replaced by the ‘use by’ date. After the ‘use by’ date a food shall be deemed to be unsafe in accordance with Article 14(2) to (5) of Regulation (EC) No 178/2002.
2. The appropriate date shall be expressed in accordance with Annex X.
3. In order to ensure a uniform application of the manner of indicating the date of minimum durability referred to in point 1(c) of Annex X, the Commission may adopt implementing acts setting out rules in this regard. Those implementing acts shall be adopted in accordance with the examination procedure referred to in Article 48(2).
Article 25
Storage conditions or conditions of use
1. In cases where foods require special storage conditions and/or conditions of use, those conditions shall be indicated.
2. To enable appropriate storage or use of the food after opening the package, the storage conditions and/or time limit for consumption shall be indicated, where appropriate. Article 26
Country of origin or place of provenance
1. This Article shall apply without prejudice to labelling requirements provided for in specific Union provisions, in particular Council Regulation (EC) No 509/2006 of 20 March 2006 on agricultural products and foodstuffs as traditional specialties guaranteed (1) and Council Regulation (EC) No 510/2006 of 20 March 2006 on the protection of geographical indications and designations of origin for agricultural products and foodstuffs (2).
2. Indication of the country of origin or place of provenance shall be mandatory:
(a) where failure to indicate this might mislead the consumer as to the true country of origin or place of provenance of the food, in particular if the information accompanying the food or the label as a whole would otherwise imply that the food has a different country of origin or place of provenance;
(b) for meat falling within the Combined Nomenclature ('CN') codes listed in Annex XI. The application of this point shall be subject to the adoption of implementing acts referred to in paragraph 8.
3. Where the country of origin or the place of provenance of a food is given and where it is not the same as that of its primary ingredient:
(a) the country of origin or place of provenance of the primary ingredient in question shall also be given; or
(b) the country of origin or place of provenance of the primary ingredient shall be indicated as being different to that of the food.
The application of this paragraph shall be subject to the adoption of the implementing acts referred to in paragraph 8.
4. Within 5 years from the date of application of point (b) of paragraph 2, the Commission shall submit a report to the European Parliament and the Council to evaluate the mandatory indication of the country of origin or place of provenance for products referred to in that point.
5. By 13 December 2014, the Commission shall submit reports to the European Parliament and the Council regarding the mandatory indication of the country of origin or place of provenance for the following foods:
(a) types of meat other than beef and those referred to in point (b) of paragraph 2;
(b) milk;
(c) milk used as an ingredient in dairy products;
(d) unprocessed foods;
(e) single ingredient products;
(f) ingredients that represent more than 50 % of a food.
6. By 13 December 2013, the Commission shall submit a report to the European Parliament and the Council regarding the mandatory indication of the country of origin or place of provenance for meat used as an ingredient.
7. The reports referred to in paragraphs 5 and 6 shall take into account the need for the consumer to be informed, the feasibility of providing the mandatory indication of the country of origin or place of provenance and an analysis of the costs and benefits of the introduction of such measures, including the legal impact on the internal market and the impact on international trade.
The Commission may accompany those reports with proposals to modify the relevant Union provisions.
8. By 13 December 2013, following impact assessments, the Commission shall adopt implementing acts concerning the application of point (b) of paragraph 2 of this Article and the application of paragraph 3 of this Article. Those implementing acts shall be adopted in accordance with the examination procedure referred to in Article 48(2).
9. In the case of foods referred to in point (b) of paragraph 2, in point (a) of paragraph 5 and in paragraph 6, the reports and the impact assessments under this Article shall consider, inter alia, the options for the modalities of expressing the country of origin or place of provenance of those foods, in particular with respect to each of the following determining points in the life of the animal:
(a) place of birth;
(b) place of rearing;
(c) place of slaughter.
Article 27
Instructions for use
1. The instructions for use of a food shall be indicated in such a way as to enable appropriate use to be made of the food.
2. The Commission may adopt implementing acts setting out detailed rules concerning the implementation of paragraph 1 for certain foods. Those implementing acts shall be adopted in accordance with the examination procedure referred to in Article 48(2).
Article 28
Alcoholic strength
1. The rules concerning indication of the alcoholic strength by volume shall, in the case of products classified in CN code 2204, be those laid down in the specific Union provisions applicable to such products.
2. The actual alcoholic strength by volume of beverages containing more than 1.2 % by volume of alcohol other than those referred to in paragraph 1 shall be indicated in accordance with Annex XII.
SECTION 3
Nutrition declaration
Article 29
Relationship with other legislation
1. This Section shall not apply to foods falling within the scope of the following legislation:
(a) Directive 2002/46/EC of the European Parliament and of the Council of 10 June 2002 on the approximation of the laws of the Member States relating to food supplements (1);
(b) Directive 2009/54/EC of the European Parliament and of the Council of 18 June 2009 on the exploitation and marketing of natural mineral waters (2).
2. This Section shall apply without prejudice to Directive 2009/39/EC of the European Parliament and of the Council of 6 May 2009 on foodstuffs intended for particular nutritional uses (3) and specific Directives as referred to in Article 4(1) of that Directive.
Article 30
Content
1. The mandatory nutrition declaration shall include the following:
(a) energy value; and
(b) the amounts of fat, saturates, carbohydrate, sugars, protein and salt.
Where appropriate, a statement indicating that the salt content is exclusively due to the presence of naturally occurring sodium may appear in close proximity to the nutrition declaration.
2. The content of the mandatory nutrition declaration referred to in paragraph 1 may be supplemented with an indication of the amounts of one or more of the following:
(a) mono-unsaturates;
(b) polyunsaturates;
(c) polyols;
(d) starch;
(e) fibre;
(f) any of the vitamins or minerals listed in point 1 of Part A of Annex XIII, and present in significant amounts as defined in point 2 of Part A of Annex XIII.
3. Where the labelling of a prepacked food provides the mandatory nutrition declaration referred to in paragraph 1, the following information may be repeated thereon:
(a) the energy value; or
(b) the energy value together with the amounts of fat, saturates, sugars, and salt.
4. By way of derogation from Article 36(1), where the labelling of the products referred to in Article 16(4) provides a nutrition declaration, the content of the declaration may be limited to the energy value only.
5. Without prejudice to Article 44 and by way of derogation from Article 36(1), where the labelling of the products referred to in Article 44(1) provides a nutrition declaration, the content of that declaration may be limited only to:
(a) the energy value; or
(b) the energy value together with the amounts of fat, saturates, sugars, and salt.
6. In order to take account of the relevance of particulars referred to in paragraphs 2 to 5 of this Article for the information of consumers, the Commission may, by means of delegated acts, in accordance with Article 51, amend the lists in paragraphs 2 to 5 of this Article, by adding or removing particulars.
(1) OJ L 183, 12.7.2002, p. 51. (2) OJ L 164, 26.6.2009, p. 45. (3) OJ L 124, 20.5.2009, p. 21. 7. By 13 December 2014, the Commission, taking into account scientific evidence and experience acquired in Member States, shall submit a report on the presence of trans fats in foods and in the overall diet of the Union population. The aim of the report shall be to assess the impact of appropriate means that could enable consumers to make healthier food and overall dietary choices or that could promote the provision of healthier food options to consumers, including, among others, the provision of information on trans fats to consumers or restrictions on their use. The Commission shall accompany this report with a legislative proposal, if appropriate.
Article 31 Calculation
1. The energy value shall be calculated using the conversion factors listed in Annex XIV.
2. The Commission may adopt, by means of delegated acts, in accordance with Article 51, conversion factors for the vitamins and minerals referred to in point 1 of Part A of Annex XIII, in order to calculate more precisely the content of such vitamins and minerals in foods. Those conversion factors shall be added to Annex XIV.
3. The energy value and the amounts of nutrients referred to in Article 30(1) to (5) shall be those of the food as sold.
Where appropriate, the information may relate to the food after preparation, provided that sufficiently detailed preparation instructions are given and the information relates to the food as prepared for consumption.
4. The declared values shall, according to the individual case, be average values based on:
(a) the manufacturer's analysis of the food;
(b) a calculation from the known or actual average values of the ingredients used; or
(c) a calculation from generally established and accepted data.
The Commission may adopt implementing acts setting out detailed rules for the uniform implementation of this paragraph with regard to the precision of the declared values such as the differences between the declared values and those established in the course of official checks. Those implementing acts shall be adopted in accordance with the examination procedure referred to in Article 48(2).
Article 32 Expression per 100 g or per 100 ml
1. The energy value and the amount of nutrients referred to in Article 30(1) to (5) shall be expressed per 100 g or per 100 ml.
2. When provided, the declaration on vitamins and minerals shall, in addition to the form of expression referred to in paragraph 2, be expressed as a percentage of the reference intakes set out in point 1 of Part A of Annex XIII in relation to per 100 g or per 100 ml.
3. In addition to the form of expression referred to in paragraph 2 of this Article, the energy value and the amounts of nutrients referred to in Article 30(1), (3), (4) and (5) may be expressed, as appropriate, as a percentage of the reference intakes set out in Part B of Annex XIII in relation to per 100 g or per 100 ml.
4. Where information is provided pursuant to paragraph 4, the following additional statement shall be indicated in close proximity to it: 'Reference intake of an average adult (8 400 kJ/2 000 kcal)'.
Article 33 Expression on a per portion basis or per consumption unit
1. In the following cases, the energy value and the amounts of nutrients referred to in Article 30(1) to (5) may be expressed per portion and/or per consumption unit, easily recognisable by the consumer, provided that the portion or the unit used is quantified on the label and that the number of portions or units contained in the package is stated:
(a) in addition to the form of expression per 100 g or per 100 ml referred to in Article 32(2);
(b) in addition to the form of expression per 100 g or per 100 ml referred to in Article 32(3) regarding the amounts of vitamins and minerals;
(c) in addition to or instead of the form of expression per 100 g or per 100 ml referred to in Article 32(4).
2. By way of derogation from Article 32(2), in the cases referred to in point (b) of Article 30(3) the amount of nutrients and/or the percentage of the reference intakes set out in Part B of Annex XIII may be expressed on the basis of per portion or per consumption unit alone.
When the amounts of nutrients are expressed on the basis of per portion or per consumption unit alone in accordance with the first subparagraph, the energy value shall be expressed per 100 g or per 100 ml and on the basis of per portion or per consumption unit. 3. By way of derogation from Article 32(2), in the cases referred to in Article 30(5) the energy value and the amount of nutrients and/or the percentage of the reference intakes set out in Part B of Annex XIII may be expressed on the basis of per portion or per consumption unit alone.
4. The portion or unit used shall be indicated in close proximity to the nutrition declaration.
5. In order to ensure the uniform implementation of the expression of the nutrition declaration per portion or per unit of consumption and to provide for a uniform basis of comparison for the consumer, the Commission shall, taking into account actual consumption behaviour of consumers as well as dietary recommendations, adopt, by means of implementing acts, rules on the expression per portion or per consumption unit for specific categories of foods. Those implementing acts shall be adopted in accordance with the examination procedure referred to in Article 48(2).
Article 34
Presentation
1. The particulars referred to in Article 30(1) and (2) shall be included in the same field of vision. They shall be presented together in a clear format and, where appropriate, in the order of presentation provided for in Annex XV.
2. The particulars referred to in Article 30(1) and (2) shall be presented, if space permits, in tabular format with the numbers aligned. Where space does not permit, the declaration shall appear in linear format.
3. The particulars referred to in Article 30(3) shall be presented:
(a) in the principal field of vision; and
(b) using a font size in accordance with Article 13(2).
The particulars referred to in Article 30(3) may be presented in a format different from that specified in paragraph 2 of this Article.
4. The particulars referred to in Article 30(4) and (5) may be presented in a format different from that specified in paragraph 2 of this Article.
5. In cases where the energy value or the amount of nutrient(s) in a product is negligible, the information on those elements may be replaced by a statement such as ‘Contains negligible amounts of …’ and shall be indicated in close proximity to the nutrition declaration when present.
In order to ensure the uniform implementation of this paragraph, the Commission may adopt implementing acts regarding the energy value and amounts of nutrients referred to in Article 30(1) to (5) which can be regarded as negligible. Those implementing acts shall be adopted in accordance with the examination procedure referred to in Article 48(2).
6. In order to ensure a uniform application of the manner of presenting the nutrition declaration under the formats referred to in paragraphs 1 to 4 of this Article, the Commission may adopt implementing acts in this regard. Those implementing acts shall be adopted in accordance with the examination procedure referred to in Article 48(2).
Article 35
Additional forms of expression and presentation
1. In addition to the forms of expression referred to in Article 32(2) and (4) and Article 33 and to the presentation referred to in Article 34(2), the energy value and the amount of nutrients referred to in Article 30(1) to (5) may be given by other forms of expression and/or presented using graphical forms or symbols in addition to words or numbers provided that the following requirements are met:
(a) they are based on sound and scientifically valid consumer research and do not mislead the consumer as referred to in Article 7;
(b) their development is the result of consultation with a wide range of stakeholder groups;
(c) they aim to facilitate consumer understanding of the contribution or importance of the food to the energy and nutrient content of a diet;
(d) they are supported by scientifically valid evidence of understanding of such forms of expression or presentation by the average consumer;
(e) in the case of other forms of expression, they are based either on the harmonised reference intakes set out in Annex XIII, or in their absence, on generally accepted scientific advice on intakes for energy or nutrients;
(f) they are objective and non-discriminatory; and
(g) their application does not create obstacles to the free movement of goods.
2. Member States may recommend to food business operators the use of one or more additional forms of expression or presentation of the nutrition declaration that they consider as best fulfilling the requirements laid down in points (a) to (g) of paragraph 1. Member States shall provide the Commission with the details of such additional forms of expression and presentation.
3. Member States shall ensure an appropriate monitoring of additional forms of expression or presentation of the nutrition declaration that are present on the market in their territory.
To facilitate the monitoring of the use of such additional forms of expression or presentation, Member States may require food business operators placing on the market in their territory foods bearing such information to notify the competent authority of the use of an additional form of expression or presentation and to provide them with the relevant justifications regarding the fulfilment of the requirements laid down in points (a) to (g) of paragraph 1. In such cases, information on the discontinuation of the use of such additional forms of expression or presentation may also be required.
4. The Commission shall facilitate and organise the exchange of information between Member States, itself and stakeholders on matters relating to the use of any additional forms of expression or presentation of the nutrition declaration.
5. By 13 December 2017, in the light of the experience gained, the Commission shall submit a report to the European Parliament and the Council on the use of additional forms of expression and presentation, on their effect on the internal market and on the advisability of further harmonisation of those forms of expression and presentation. For this purpose, Member States shall provide the Commission with relevant information concerning the use of such additional forms of expression or presentation on the market in their territory. The Commission may accompany this report with proposals to modify the relevant Union provisions.
6. In order to ensure the uniform application of this Article, the Commission shall adopt implementing acts setting out detailed rules concerning the implementation of paragraphs 1, 3 and 4 of this Article. Those implementing acts shall be adopted in accordance with the examination procedure referred to in Article 48(2).
CHAPTER V
VOLUNTARY FOOD INFORMATION
Article 36
Applicable requirements
1. Where food information referred to in Articles 9 and 10 is provided on a voluntary basis, such information shall comply with the requirements laid down in Sections 2 and 3 of Chapter IV.
2. Food information provided on a voluntary basis shall meet the following requirements:
(a) it shall not mislead the consumer, as referred to in Article 7;
(b) it shall not be ambiguous or confusing for the consumer; and
(c) it shall, where appropriate, be based on the relevant scientific data.
3. The Commission shall adopt implementing acts on the application of the requirements referred to in paragraph 2 of this Article to the following voluntary food information:
(a) information on the possible and unintentional presence in food of substances or products causing allergies or intolerances;
(b) information related to suitability of a food for vegetarians or vegans; and
(c) the indication of reference intakes for specific population groups in addition to the reference intakes set out in Annex XIII.
Those implementing acts shall be adopted in accordance with the examination procedure referred to in Article 48(2).
4. In order to ensure that consumers are appropriately informed, where voluntary food information is provided by food business operators on a divergent basis which might mislead or confuse the consumer, the Commission may, by means of delegated acts, in accordance with Article 51, provide for additional cases of provision of voluntary food information to the ones referred to in paragraph 3 of this Article.
Article 37
Presentation
Voluntary food information shall not be displayed to the detriment of the space available for mandatory food information.
CHAPTER VI
NATIONAL MEASURES
Article 38
National measures
1. As regards the matters specifically harmonised by this Regulation, Member States may not adopt nor maintain national measures unless authorised by Union law. Those national measures shall not give rise to obstacles to free movement of goods, including discrimination as regards foods from other Member States.
2. Without prejudice to Article 39, Member States may adopt national measures concerning matters not specifically harmonised by this Regulation provided that they do not prohibit, impede or restrict the free movement of goods that are in conformity with this Regulation. Article 39
National measures on additional mandatory particulars
1. In addition to the mandatory particulars referred to in Article 9(1) and in Article 10, Member States may, in accordance with the procedure laid down in Article 45, adopt measures requiring additional mandatory particulars for specific types or categories of foods, justified on grounds of at least one of the following:
(a) the protection of public health;
(b) the protection of consumers;
(c) the prevention of fraud;
(d) the protection of industrial and commercial property rights, indications of provenance, registered designations of origin and the prevention of unfair competition.
2. By means of paragraph 1, Member States may introduce measures concerning the mandatory indication of the country of origin or place of provenance of foods only where there is a proven link between certain qualities of the food and its origin or provenance. When notifying such measures to the Commission, Member States shall provide evidence that the majority of consumers attach significant value to the provision of that information.
Article 40
Milk and milk products
Member States may adopt measures derogating from Article 9(1) and Article 10(1) in the case of milk and milk products presented in glass bottles intended for reuse.
They shall communicate to the Commission the text of those measures without delay.
Article 41
Alcoholic beverages
Member States may, pending the adoption of the Union provisions referred to in Article 16(4), maintain national measures as regards the listing of ingredients in the case of beverages containing more than 1,2 % by volume of alcohol.
Article 42
Expression of the net quantity
In the absence of Union provisions referred to in Article 23(2) concerning the expression of net quantity for specified foods in a different manner to that provided for in Article 23(1), Member States may maintain national measures adopted before 12 December 2011.
By 13 December 2014, Member States shall inform the Commission about such measures. The Commission shall bring them to the attention of the other Member States.
Article 43
Voluntary indication of reference intakes for specific population groups
Pending the adoption of the Union provisions referred to in point (c) of Article 36(3), Member States may adopt national measures on the voluntary indication of reference intakes for specific population groups.
Member States shall communicate to the Commission the text of those measures without delay.
Article 44
National measures for non-prepacked food
1. Where foods are offered for sale to the final consumer or to mass caterers without prepackaging, or where foods are packed on the sales premises at the consumer’s request or prepacked for direct sale:
(a) the provision of the particulars specified in point (c) of Article 9(1) is mandatory;
(b) the provision of other particulars referred to in Articles 9 and 10 is not mandatory unless Member States adopt national measures requiring the provision of some or all of those particulars or elements of those particulars.
2. Member States may adopt national measures concerning the means through which the particulars or elements of those particulars specified in paragraph 1 are to be made available and, where appropriate, their form of expression and presentation.
3. Member States shall communicate to the Commission the text of the measures referred to in point (b) of paragraph 1 and in paragraph 2 without delay.
Article 45
Notification procedure
1. When reference is made to this Article, the Member State which deems it necessary to adopt new food information legislation shall notify in advance the Commission and the other Member States of the measures envisaged and give the reasons justifying them.
2. The Commission shall consult the Standing Committee on the Food Chain and Animal Health set up by Article 58(1) of Regulation (EC) No 178/2002 if it considers such consultation to be useful or if a Member State so requests. In that case, the Commission shall ensure that this process is transparent for all stakeholders.
3. The Member State which deems it necessary to adopt new food information legislation may take the envisaged measures only 3 months after the notification referred to in paragraph 1, provided that it has not received a negative opinion from the Commission.
4. If the Commission’s opinion is negative, and before the expiry of the period referred to in paragraph 3 of this Article, the Commission shall initiate the examination procedure referred to in Article 48(2) in order to determine whether the envisaged measures may be implemented subject, if necessary, to the appropriate modifications.
5. Directive 98/34/EC of the European Parliament and of the Council of 22 June 1998 laying down a procedure for the provision of information in the field of technical standards and regulations and of rules on Information Society services (1) shall not apply to the measures falling within the notification procedure specified in this Article.
CHAPTER VII IMPLEMENTING, AMENDING AND FINAL PROVISIONS
Article 46 Amendments to the Annexes In order to take into account technical progress, scientific developments, consumers’ health, or consumers’ need for information, and subject to the provisions of Article 10(2) and Article 21(2) relating to the amendments to Annexes II and III, the Commission may, by means of delegated acts in accordance with Article 51, amend the Annexes to this Regulation.
Article 47 Transitional period for and date of application of implementing measures or delegated acts
1. Without prejudice to paragraph 2 of this Article, in exercising the powers conferred by this Regulation to adopt measures by means of implementing acts in accordance with the examination procedure referred to in Article 48(2) or by means of delegated acts in accordance with Article 51 the Commission shall:
(a) establish an appropriate transitional period for application of the new measures, during which foods bearing labels not complying with the new measures may be placed on the market and after which stocks of such foods that have been placed on the market before the end of the transitional period may continue to be sold until exhausted; and
(b) ensure that those measures apply as from 1 April in any calendar year.
2. Paragraph 1 shall not apply in cases of urgency where the purpose of the measures referred to in that paragraph is the protection of human health.
Article 48 Committee
1. The Commission shall be assisted by the Standing Committee on the Food Chain and Animal Health established by Article 58(1) of Regulation (EC) No 178/2002. That Committee is a committee within the meaning of Regulation (EU) No 182/2011.
2. Where reference is made to this paragraph, Article 5 of Regulation (EU) No 182/2011 shall apply.
Where the Committee delivers no opinion, the Commission shall not adopt the draft implementing act and the third subparagraph of Article 5(4) of Regulation (EU) No 182/2011 shall apply.
Article 49 Amendments to Regulation (EC) No 1924/2006 The first and second paragraphs of Article 7 of Regulation (EC) No 1924/2006 are replaced by the following:
‘Nutrition labelling of products on which a nutrition and/or health claim is made shall be mandatory, with the exception of generic advertising. The information to be provided shall consist of that specified in Article 30(1) of Regulation (EU) No 1169/2011 of the European Parliament and of the Council of 25 October 2011 on the provision of food information to consumers (\*). Where a nutrition and/or health claim is made for a nutrient referred to in Article 30(2) of Regulation (EU) No 1169/2011 the amount of that nutrient shall be declared in accordance with Articles 31 to 34 of that Regulation.
The amount(s) of the substance(s) to which a nutrition or health claim relates that does not appear in the nutrition labelling shall be stated in the same field of vision as the nutrition labelling and be expressed in accordance with Articles 31 to 33 of that Regulation.
The units of measurement used to express the amount of the substance shall be appropriate for the individual substances concerned.
(\*) OJ L 304, 22.11.2011, p. 18’.
(1) OJ L 204, 21.7.1998, p. 37. Article 50
Amendments to Regulation (EC) No 1925/2006
Paragraph 3 of Article 7 of Regulation (EC) No 1925/2006 is replaced by the following:
‘3. Nutrition labelling of products to which vitamins and minerals have been added and which are covered by this Regulation shall be compulsory. The information to be provided shall consist of that specified in Article 30(1) of Regulation (EU) No 1169/2011 of the European Parliament and of the Council of 25 October 2011 on the provision of food information to consumers (\*) and of the total amounts present of the vitamins and minerals when added to the food.
(\*) OJ L 304, 22.11.2011, p. 18’.
Article 51
Exercise of the delegation
1. The power to adopt delegated acts is conferred on the Commission subject to the conditions laid down in this Article.
2. The power to adopt delegated acts referred to in Article 9(3), Article 10(2), Article 12(3), Article 13(4), Article 18(5), Article 19(2), Article 21(2), Article 23(2), Article 30(6), Article 31(2), Article 36(4) and Article 46 shall be conferred on the Commission for a period of 5 years after 12 December 2011. The Commission shall draw up a report in respect of the delegation of power not later than 9 months before the end of the 5-year period. The delegation of power shall be tacitly extended for periods of an identical duration, unless the European Parliament or the Council opposes such extension not later than 3 months before the end of each period.
3. The delegation of power referred to in Article 9(3), Article 10(2), Article 12(3), Article 13(4), Article 18(5), Article 19(2), Article 21(2), Article 23(2), Article 30(6), Article 31(2), Article 36(4) and Article 46 may be revoked at any time by the European Parliament or by the Council. A decision to revoke shall put an end to the delegation of the power specified in that decision. It shall take effect the day following the publication of the decision in the Official Journal of the European Union or on a later date specified therein. It shall not affect the validity of any delegated acts already in force.
4. As soon as it adopts a delegated act, the Commission shall notify it simultaneously to the European Parliament and to the Council.
5. A delegated act adopted pursuant to Article 9(3), Article 10(2), Article 12(3), Article 13(4), Article 18(5), Article 19(2), Article 21(2), Article 23(2), Article 30(6), Article 31(2), Article 36(4) and Article 46 shall enter into force only if no objection has been expressed either by the European Parliament or the Council within a period of 2 months of notification of that act to the European Parliament and the Council or if, before the expiry of that period, the European Parliament and the Council have both informed the Commission that they will not object. That period shall be extended by 2 months at the initiative of the European Parliament or of the Council.
Article 52
Urgency procedure
1. Delegated acts adopted under this Article shall enter into force without delay and shall apply as long as no objection is expressed in accordance with paragraph 2. The notification of a delegated act to the European Parliament and to the Council shall state the reasons for the use of the urgency procedure.
2. Either the European Parliament or the Council may object to a delegated act in accordance with the procedure referred to in Article 51(5). In such a case, the Commission shall repeal the act without delay following the notification of the decision to object by the European Parliament or by the Council.
Article 53
Repeal
1. Directives 87/250/EEC, 90/496/EEC, 1999/10/EC, 2000/13/EC, 2002/67/EC and 2008/5/EC and Regulation (EC) No 608/2004 are repealed as from 13 December 2014.
2. References to the repealed acts shall be construed as references to this Regulation.
Article 54
Transitional measures
1. Foods placed on the market or labelled prior to 13 December 2014 which do not comply with the requirements of this Regulation may be marketed until the stocks of the foods are exhausted.
Foods placed on the market or labelled prior to 13 December 2016 which do not comply with the requirement laid down in point (l) of Article 9(1) may be marketed until the stocks of the foods are exhausted.
Foods placed on the market or labelled prior to 1 January 2014 which do not comply with the requirements laid down in Part B of Annex VI may be marketed until the stocks of the foods are exhausted. 2. Between 13 December 2014 and 13 December 2016, where the nutrition declaration is provided on a voluntary basis, it shall comply with Articles 30 to 35.
3. Notwithstanding Directive 90/496/EEC, Article 7 of Regulation (EC) No 1924/2006 and Article 7(3) of Regulation (EC) No 1925/2006, foods labelled in accordance with Articles 30 to 35 of this Regulation may be placed on the market before 13 December 2014.
Notwithstanding Commission Regulation (EC) No 1162/2009 of 30 November 2009 laying down transitional measures for the implementation of Regulations (EC) No 853/2004, (EC) No 854/2004 and (EC) No 882/2004 of the European Parliament and of the Council (1), foods labelled in accordance with Part B of Annex VI to this Regulation may be placed on the market before 1 January 2014.
Article 55
Entry into force and date of application
This Regulation shall enter into force on the 20th day following its publication in the Official Journal of the European Union.
It shall apply from 13 December 2014, with the exception of point (l) of Article 9(1), which shall apply from 13 December 2016, and Part B of Annex VI, which shall apply from 1 January 2014.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Strasbourg, 25 October 2011.
For the European Parliament The President J. BUZEK
For the Council The President M. DOWGIELEWICZ
(1) OJ L 314, 1.12.2009, p. 10. ANNEX I
SPECIFIC DEFINITIONS As referred to in Article 2(4)
01. ‘nutrition declaration’ or ‘nutrition labelling’ means information stating the: (a) energy value; or (b) energy value and one or more of the following nutrients only: — fat (saturates, mono-unsaturates, polyunsaturates), — carbohydrate (sugars, polyols, starch), — salt, — fibre, — protein, — any of the vitamins or minerals listed in point 1 of Part A of Annex XIII, and present in significant amounts as defined in point 2 of Part A of Annex XIII,
02. ‘fat’ means total lipids, and includes phospholipids;
03. ‘saturates’ means fatty acids without double bond;
04. ‘trans fat’ means fatty acids with at least one non-conjugated (namely interrupted by at least one methylene group) carbon-carbon double bond in the trans configuration;
05. ‘mono-unsaturates’ means fatty acids with one cis double bond;
06. ‘polyunsaturates’ means fatty acids with two or more cis, cis-methylene interrupted double bonds;
07. ‘carbohydrate’ means any carbohydrate which is metabolised by humans, and includes polyols;
08. ‘sugars’ means all monosaccharides and disaccharides present in food, but excludes polyols;
09. ‘polyols’ means alcohols containing more than two hydroxyl groups;
10. ‘protein’ means the protein content calculated using the formula: protein = total Kjeldahl nitrogen × 6.25;
11. ‘salt’ means the salt equivalent content calculated using the formula: salt = sodium × 2.5;
12. ‘fibre’ means carbohydrate polymers with three or more monomeric units, which are neither digested nor absorbed in the human small intestine and belong to the following categories: — edible carbohydrate polymers naturally occurring in the food as consumed, — edible carbohydrate polymers which have been obtained from food raw material by physical, enzymatic or chemical means and which have a beneficial physiological effect demonstrated by generally accepted scientific evidence, — edible synthetic carbohydrate polymers which have a beneficial physiological effect demonstrated by generally accepted scientific evidence,
13. ‘average value’ means the value which best represents the amount of the nutrient which a given food contains, and reflects allowances for seasonal variability, patterns of consumption and other factors which may cause the actual value to vary. ANNEX II
SUBSTANCES OR PRODUCTS CAUSING ALLERGIES OR INTOLERANCES
01. Cereals containing gluten, namely: wheat, rye, barley, oats, spelt, kamut or their hybridised strains, and products thereof, except: (a) wheat based glucose syrups including dextrose (1); (b) wheat based maltodextrins (1); (c) glucose syrups based on barley; (d) cereals used for making alcoholic distillates including ethyl alcohol of agricultural origin;
02. Crustaceans and products thereof;
03. Eggs and products thereof;
04. Fish and products thereof, except: (a) fish gelatine used as carrier for vitamin or carotenoid preparations; (b) fish gelatine or Isinglass used as fining agent in beer and wine;
05. Peanuts and products thereof;
06. Soybeans and products thereof, except: (a) fully refined soybean oil and fat (1); (b) natural mixed tocopherols (E306), natural D-alpha tocopherol, natural D-alpha tocopherol acetate, and natural D-alpha tocopherol succinate from soybean sources; (c) vegetable oils derived phytosterols and phytosterol esters from soybean sources; (d) plant stanol ester produced from vegetable oil sterols from soybean sources;
07. Milk and products thereof (including lactose), except: (a) whey used for making alcoholic distillates including ethyl alcohol of agricultural origin; (b) lactitol;
08. Nuts, namely: almonds (Amygdalus communis L.), hazelnuts (Corylus avellana), walnuts (Juglans regia), cashews (Anacardium occidentale), pecan nuts (Carya illinoinensis (Wangen.) K. Koch), Brazil nuts (Bertholletia excelsa), pistachio nuts (Pistacia vera), macadamia or Queensland nuts (Macadamia ternifolia), and products thereof, except for nuts used for making alcoholic distillates including ethyl alcohol of agricultural origin;
09. Celery and products thereof;
10. Mustard and products thereof;
11. Sesame seeds and products thereof;
12. Sulphur dioxide and sulphites at concentrations of more than 10 mg/kg or 10 mg/litre in terms of the total SO₂ which are to be calculated for products as proposed ready for consumption or as reconstituted according to the instructions of the manufacturers;
13. Lupin and products thereof;
14. Molluscs and products thereof.
(1) And the products thereof, in so far as the process that they have undergone is not likely to increase the level of allergenicity assessed by the Authority for the relevant product from which they originated.
### ANNEX III
**FOODS FOR WHICH THE LABELLING MUST INCLUDE ONE OR MORE ADDITIONAL PARTICULARS**
| TYPE OR CATEGORY OF FOOD | PARTICULARS | |--------------------------|-------------| | **1. Foods packaged in certain gases** | | | 1.1. Foods whose durability has been extended by means of packaging gases authorised pursuant to Regulation (EC) No 1333/2008. | 'packaged in a protective atmosphere'. | | **2. Foods containing sweeteners** | | | 2.1. Foods containing a sweetener or sweeteners authorised pursuant to Regulation (EC) No 1333/2008. | 'with sweetener(s)' this statement shall accompany the name of the food. | | 2.2. Foods containing both an added sugar or sugars and a sweetener or sweeteners authorised pursuant to Regulation (EC) No 1333/2008. | 'with sugar(s) and sweetener(s)' this statement shall accompany the name of the food. | | 2.3. Foods containing aspartame/aspartame-acesulfame salt authorised pursuant to Regulation EC) No 1333/2008. | 'contains aspartame (a source of phenylalanine)' shall appear on the label in cases where aspartame/aspartame-acesulfame salt is designated in the list of ingredients only by reference to the E number. 'contains a source of phenylalanine' shall appear on the label in cases where aspartame/aspartame-acesulfame salt is designated in the list of ingredients by its specific name. | | 2.4. Foods containing more than 10 % added polyols authorised pursuant to Regulation (EC) No 1333/2008. | 'excessive consumption may produce laxative effects'. | | **3. Foods containing glycyrrhizinic acid or its ammonium salt** | | | 3.1. Confectionery or beverages containing glycyrrhizinic acid or its ammonium salt due to the addition of the substance(s) as such or the liquorice plant Glycyrrhiza glabra, at concentration of 100 mg/kg or 10 mg/l or above. | 'contains liquorice' shall be added immediately after the list of ingredients, unless the term 'liquorice' is already included in the list of ingredients or in the name of the food. In the absence of a list of ingredients, the statement shall accompany the name of the food. | | 3.2. Confectionary containing glycyrrhizinic acid or its ammonium salt due to the addition of the substance(s) as such or the liquorice plant Glycyrrhiza glabra at concentrations of 4 g/kg or above. | 'contains liquorice – people suffering from hypertension should avoid excessive consumption' shall be added immediately after the list of ingredients. In the absence of a list of ingredients, the statement shall accompany the name of the food. | | 3.3. Beverages containing glycyrrhizinic acid or its ammonium salt due to the addition of the substance(s) as such or the liquorice plant Glycyrrhiza glabra at concentrations of 50 mg/l or above, or of 300 mg/l or above in the case of beverages containing more than 1,2 % by volume of alcohol (1). | 'contains liquorice – people suffering from hypertension should avoid excessive consumption' shall be added immediately after the list of ingredients. In the absence of a list of ingredients, the statement shall accompany the name of the food. | | TYPE OR CATEGORY OF FOOD | PARTICULARS | |--------------------------|-------------| | 4. Beverages with high caffeine content or foods with added caffeine | 'High caffeine content. Not recommended for children or pregnant or breast-feeding women' in the same field of vision as the name of the beverage, followed by a reference in brackets and in accordance with Article 13(1) of this Regulation to the caffeine content expressed in mg per 100 ml. | | 4.1. Beverages, with the exception of those based on coffee, tea or coffee or tea extract where the name of the food includes the term 'coffee' or 'tea', which: — are intended for consumption without modification and contain caffeine, from whatever source, in a proportion in excess of 150 mg/l, or, — are in concentrated or dried form and after reconstitution contain caffeine, from whatever source, in a proportion in excess of 150 mg/l, | | | 4.2. Foods other than beverages, where caffeine is added with a physiological purpose. | 'Contains caffeine. Not recommended for children or pregnant women' in the same field of vision as the name of the food, followed by a reference in brackets and in accordance with Article 13(1) of this Regulation to the caffeine content expressed in mg per 100 g/ml. In the case of food supplements, the caffeine content shall be expressed per portion as recommended for daily consumption on the labelling. | | 5. Foods with added phytosterols, phytosterol esters, phytostanols or phytostanol esters | | | 5.1. Foods or food ingredients with added phytosterols, phytosterol esters, phytostanols or phytostanol esters. | (1) 'with added plant sterols' or 'with added plant stanols' in the same field of vision as the name of the food; (2) the amount of added phytosterols, phytosterol esters, phytostanols or phytostanol esters content (expressed in % or as g of free plant sterols/plant stanols per 100 g or 100 ml of the food) shall be stated in the list of ingredients; (3) a statement that the food is intended exclusively for people who want to lower their blood cholesterol level; (4) a statement that patients on cholesterol lowering medication should only consume the product under medical supervision; (5) an easily visible statement that the food may not be nutritionally appropriate for pregnant or breastfeeding women and children under the age of 5 years; (6) advice that the food is to be used as part of a balanced and varied diet, including regular consumption of fruit and vegetables to help maintain carotenoid levels; (7) in the same field of vision as the statement required under point (3) above, a statement that the consumption of more than 3 g/day of added plant sterols/plant stanols should be avoided; (8) a definition of a portion of the food or food ingredient concerned (preferably in g or ml) with the amount of the plant sterol/plant stanol that each portion contains. | | 6. Frozen meat, frozen meat preparations and frozen unprocessed fishery products | | | 6.1. Frozen meat, frozen meat preparations and frozen unprocessed fishery products. | the date of freezing or the date of first freezing in cases where the product has been frozen more than once, in accordance with point (3) of Annex X. |
(1) The level shall apply to the products as proposed ready for consumption or as reconstituted according to the instructions of the manufacturers. ANNEX IV
DEFINITION OF x-HEIGHT
Legend
| | | |---|---| | 1 | Ascender line | | 2 | Cap line | | 3 | Mean line | | 4 | Baseline | | 5 | Descender line | | 6 | x-height | | 7 | Font size | ANNEX V
FOODS WHICH ARE EXEMPTED FROM THE REQUIREMENT OF THE MANDATORY NUTRITION DECLARATION
01. Unprocessed products that comprise a single ingredient or category of ingredients;
02. Processed products which the only processing they have been subjected to is maturing and that comprise a single ingredient or category of ingredients;
03. Waters intended for human consumption, including those where the only added ingredients are carbon dioxide and/or flavourings;
04. A herb, a spice or mixtures thereof;
05. Salt and salt substitutes;
06. Table top sweeteners;
07. Products covered by Directive 1999/4/EC of the European Parliament and of the Council of 22 February 1999 relating to coffee extracts and chicory extracts (1), whole or milled coffee beans and whole or milled decaffeinated coffee beans;
08. Herbal and fruit infusions, tea, decaffeinated tea, instant or soluble tea or tea extract, decaffeinated instant or soluble tea or tea extract, which do not contain other added ingredients than flavourings which do not modify the nutritional value of the tea;
09. Fermented vinegars and substitutes for vinegar, including those where the only added ingredients are flavourings;
10. Flavourings;
11. Food additives;
12. Processing aids;
13. Food enzymes;
14. Gelatine;
15. Jam setting compounds;
16. Yeast;
17. Chewing-gums;
18. Food in packaging or containers the largest surface of which has an area of less than 25 cm²;
19. Food, including handcrafted food, directly supplied by the manufacturer of small quantities of products to the final consumer or to local retail establishments directly supplying the final consumer.
(1) OJ L 66, 13.3.1999, p. 26. ANNEX VI
NAME OF THE FOOD AND SPECIFIC ACCOMPANYING PARTICULARS
PART A — MANDATORY PARTICULARS ACCOMPANYING THE NAME OF THE FOOD
1. The name of the food shall include or be accompanied by particulars as to the physical condition of the food or the specific treatment which it has undergone (for example, powdered, refrozen, freeze-dried, quick-frozen, concentrated, smoked) in all cases where omission of such information could mislead the purchaser.
2. In the case of foods that have been frozen before sale and which are sold defrosted, the name of the food shall be accompanied by the designation ‘defrosted’.
This requirement shall not apply to the following:
(a) ingredients present in the final product;
(b) foods for which freezing is a technologically necessary step of the production process;
(c) foods for which the defrosting has no negative impact on the safety or quality of the food.
This point shall apply without prejudice to point 1.
3. Foods treated with ionising radiation shall bear one of the following indications:
‘irradiated’ or ‘treated with ionising radiation’, and other indications as stated in Directive 1999/2/EC of the European Parliament and of the Council of 22 February 1999 on the approximation of the laws of the Member States concerning foods and food ingredients treated with ionising radiation (1).
4. In the case of foods in which a component or ingredient that consumers expect to be normally used or naturally present has been substituted with a different component or ingredient, the labelling shall bear — in addition to the list of ingredients — a clear indication of the component or the ingredient that has been used for the partial or whole substitution:
(a) in close proximity to the name of the product; and
(b) using a font size which has an x-height of at least 75 % of the x-height of the name of the product and which is not smaller than the minimum font size required in Article 13(2) of this Regulation.
5. In the case of meat products, meat preparations and fishery products containing added proteins as such, including hydrolysed proteins, of a different animal origin, the name of the food shall bear an indication of the presence of those proteins and of their origin.
6. In the case of meat products and meat preparations which have the appearance of a cut, joint, slice, portion or carcase of meat, the name of the food shall include an indication of the presence of added water if the added water makes up more than 5 % of the weight of the finished product. The same rules shall apply in the case of fishery products and prepared fishery products which have the appearance of a cut, joint, slice, portion, filet or of a whole fishery product.
7. Meat products, meat preparations and fishery products which may give the impression that they are made of a whole piece of meat or fish, but actually consist of different pieces combined together by other ingredients, including food additives and food enzymes or by other means, shall bear the following indication:
in Bulgarian: ‘формовано месо’ and ‘формована риба’;
in Spanish: ‘combinado de piezas de carne’ and ‘combinado de piezas de pescado’;
in Czech: ‘ze spojovaných kousků masa’ and ‘ze spojovaných kousků rybího masa’;
in Danish: ‘Sammensat af stykker af kød’ and ‘Sammensat af stykker af fisk’;
in German: ‘aus Fleischstücken zusammengefügt’ and ‘aus Fischstücken zusammengefügt’;
(1) OJ L 66, 13.3.1999, p. 16. PART B — SPECIFIC REQUIREMENTS CONCERNING THE DESIGNATION OF ‘MINCED MEAT’
1. Composition criteria checked on the basis of a daily average:
| | Fat content | Collagen/meat protein ratio (¹) | |------------------------|-------------|---------------------------------| | — lean minced meat, | ≤ 7 % | ≤ 12 % | | — minced pure beef, | ≤ 20 % | ≤ 15 % | | — minced meat containing pigmeat, | ≤ 30 % | ≤ 18 % | | — minced meat of other species, | ≤ 25 % | ≤ 15 % |
(¹) The collagen/meat protein ratio is expressed as the percentage of collagen in meat protein. The collagen content means the hydroxyproline content multiplied by a factor of 8.
2. In addition to the requirements laid down in Chapter IV of Section V of Annex III to Regulation (EC) No 853/2004, the following expressions shall appear on the labelling:
— ‘percentage of fat content under …’;
— ‘collagen/meat protein ratio under …’; 3. The Member States may allow the placing on their national market of minced meat which does not comply with the criteria laid down in point 1 of this Part under a national mark that cannot be confused with the marks provided for in Article 5(1) of Regulation (EC) No 853/2004.
PART C — SPECIFIC REQUIREMENTS CONCERNING THE DESIGNATION OF SAUSAGE CASINGS
If a sausage casing is not edible, this must be indicated.
### ANNEX VII
**INDICATION AND DESIGNATION OF INGREDIENTS**
**PART A — SPECIFIC PROVISIONS CONCERNING THE INDICATION OF INGREDIENTS BY DESCENDING ORDER OF WEIGHT**
| Category of ingredient | Provision concerning indication by weight | |------------------------|------------------------------------------| | 1. Added water and volatile products | Shall be listed in order of their weight in the finished product. The amount of water added as an ingredient in a food shall be calculated by deducting from the total amount of the finished product the total amount of the other ingredients used. This amount shall not be required to be taken into consideration if it does not exceed 5 % by weight of the finished product. This derogation does not apply to meat, meat preparations, unprocessed fishery products and unprocessed bivalve molluscs | | 2. Ingredients used in concentrated or dehydrated form and reconstituted at the time of manufacture | May be listed in order of weight as recorded before their concentration or dehydration | | 3. Ingredients used in concentrated or dehydrated foods, which are intended to be reconstituted by the addition of water | May be listed in order of proportion in the reconstituted product provided that the list of ingredients is accompanied by an expression, such as ‘ingredients of the reconstituted product’, or ‘ingredients of the ready-to-use product’ | | 4. Fruit, vegetables or mushrooms, none of which significantly predominates in terms of weight and which are used in proportions that are likely to vary, used in a mixture as ingredients of a food | May be grouped together in the list of ingredients under the designation ‘fruit’, ‘vegetables’ or ‘mushrooms’ followed by the phrase ‘in varying proportions’, immediately followed by a list of the fruit, vegetables or mushrooms present. In such cases, the mixture shall be included in the list of ingredients in accordance with Article 18(1), on the basis of the total weight of the fruit, vegetables or mushrooms present | | 5. Mixtures of spices or herbs, where none significantly predominates in proportion by weight | May be listed in different order provided that that list of ingredients is accompanied by an expression such as ‘in variable proportion’ | | 6. Ingredients constituting less than 2 % of the finished product | May be listed in a different order after the other ingredients | | 7. Ingredients, which are similar or mutually substitutable, likely to be used in the manufacture or preparation of a food without altering its composition, its nature or its perceived value, and in so far as they constitute less than 2 % of the finished product | May be referred to in the list of ingredients by means of the statement ‘contains … and/or …’, where at least one of no more than two ingredients is present in the finished product. This provision shall not apply to food additives or to ingredients listed in Part C of this Annex, and to substances or products listed in Annex II causing allergies or intolerances | | 8. Refined oils of vegetable origin | May be grouped together in the list of ingredients under the designation ‘vegetable oils’ followed immediately by a list of indications of specific vegetable origin, and may be followed by the phrase ‘in varying proportions’. If grouped together, vegetable oils shall be included in the list of ingredients in accordance with Article 18(1), on the basis of the total weight of the vegetable oils present. The expression ‘fully hydrogenated’ or ‘partly hydrogenated’, as appropriate, must accompany the indication of a hydrogenated oil | 9. Refined fats of vegetable origin
May be grouped together in the list of ingredients under the designation ‘vegetable fats’ followed immediately by a list of indications of specific vegetable origin, and may be followed by the phrase ‘in varying proportions’. If grouped together, vegetable fats shall be included in the list of ingredients in accordance with Article 18(1), on the basis of the total weight of the vegetable fats present.
The expression ‘fully hydrogenated’ or ‘partly hydrogenated’, as appropriate, must accompany the indication of a hydrogenated fat.
PART B — DESIGNATION OF CERTAIN INGREDIENTS BY THE NAME OF A CATEGORY RATHER THAN A SPECIFIC NAME
Without prejudice to Article 21, ingredients which belong to one of the categories of foods listed below and are constituents of another food may be designated by the name of that category rather than the specific name.
| Definition of category of food | Designation | |-------------------------------|-------------| | 1. Refined oils of animal origin | ‘Oil’, together with either the adjective ‘animal’, or the indication of specific animal origin. The expression ‘fully hydrogenated’ or ‘partly hydrogenated’, as appropriate, must accompany the indication of a hydrogenated oil | | 2. Refined fats of animal origin | ‘Fat’, together with either the adjective ‘animal’ or the indication of specific animal origin. The expression ‘fully hydrogenated’ or ‘partly hydrogenated’, as appropriate, must accompany the indication of a hydrogenated fat | | 3. Mixtures of flour obtained from two or more cereal species | ‘Flour’, followed by a list of the cereals from which it has been obtained, in descending order by weight | | 4. Starches, and starches modified by physical means or by enzymes | ‘Starch’ | | 5. All species of fish where the fish constitutes an ingredient of another food and provided that the name and presentation of such food does not refer to a specific species of fish | ‘Fish’ | | 6. All types of cheese where the cheese or mixture of cheeses constitutes an ingredient of another food and provided that the name and presentation of such food does not refer to a specific type of cheese | ‘Cheese’ | | 7. All spices not exceeding 2 % by weight of the food | ‘Spice(s)’ or ‘mixed spices’ | | 8. All herbs or parts of herbs not exceeding 2 % by weight of the food | ‘Herb(s)’ or ‘mixed herbs’ | | 9. All types of gum preparations used in the manufacture of gum base for chewing gum | ‘Gum base’ | | 10. All types of crumbed baked cereal products | ‘Crumbs’ or ‘rusks’ as appropriate | 11. All types of sucrose
'Sugar'
12. Anhydrous dextrose or dextrose monohydrate
'Dextrose'
13. Glucose syrup and anhydrous glucose syrup
'Glucose syrup'
14. All types of milk protein (caseins, caseinates and whey proteins) and mixtures thereof
'Milk proteins'
15. Press, expeller or refined cocoa butter
'Cocoa butter'
16. All types of wine as covered by Annex XIb to Regulation (EC) No 1234/2007
'Wine'
17. Skeletal muscles of mammalian and bird species recognised as fit for human consumption with naturally included or adherent tissue, where the total fat and connective tissue content does not exceed the values indicated below and where the meat constitutes an ingredient of another food.
Maximum fat and connective tissue contents for ingredients designated by the term ‘… meat’
| Species | Fat content | Collagen/meat protein ratio ((^1)) | |---------|-------------|-------------------------------------| | — Mammals (other than rabbits and porcines) and mixtures of species with mammals predominating, | 25 % | 25 % | | — Porcines, | 30 % | 25 % | | — Birds and rabbits, | 15 % | 10 % |
(^1) The collagen/meat protein ratio is expressed as the percentage of collagen in meat protein. The collagen content means the hydroxyproline content multiplied by a factor of 8.
If these maximum limits are exceeded, but all other criteria for the definition of ‘meat’ are satisfied, the ‘… meat’ content must be adjusted downwards accordingly and the list of ingredients must mention, in addition to the term ‘… meat’, the presence of fat and/or connective tissue.
The products covered by the definition of ‘mechanically separated meat’ are excluded from this definition.
18. All types of products covered by the definition of ‘mechanically separated meat’
‘mechanically separated meat’ and the name(s) ((^2)) of the animal species from which it comes
(^1) Council Regulation (EC) No 1234/2007 of 22 October 2007 establishing a common organisation of agricultural markets and on specific provisions for certain agricultural products (Single CMO Regulation) (OJ L 299, 16.11.2007, p. 1).
(^2) The diaphragm and the masseters are part of the skeletal muscles, while the heart, tongue, the muscles of the head (other than the masseters), the muscles of the carpus, the tarsus and the tail are excluded.
(^3) For labelling in English, this designation may be replaced by the generic name of the ingredient for the animal species concerned. PART C — DESIGNATION OF CERTAIN INGREDIENTS BY THE NAME OF THEIR CATEGORY FOLLOWED BY THEIR SPECIFIC NAME OR E NUMBER
Without prejudice to Article 21, food additives and food enzymes other than those specified in point (b) of Article 20 belonging to one of the categories listed in this Part must be designated by the name of that category, followed by their specific name or, if appropriate, E number. If an ingredient belongs to more than one of the categories, the category appropriate to the principal function in the case of the food in question shall be indicated.
| Acid | Foaming agent | |------|---------------| | Acidity regulator | Gelling agent | | Anti-caking agent | Glazing agent | | Anti-foaming agent | Humectant | | Antioxidant | Modified starch (1) | | Bulking agent | Preservative | | Colour | Propellent gas | | Emulsifier | Raising agent | | Emulsifying salts (1) | Sequestrant | | Firming agent | Stabiliser | | Flavour enhancer | Sweetener | | Flour treatment agent | Thickener |
(1) Only for processed cheeses and products based on processed cheeses. (2) The specific name or E number shall not be required to be indicated.
PART D — DESIGNATION OF FLAVOURINGS IN THE LIST OF INGREDIENTS
1. Flavourings shall be designated either by the terms:
— ‘flavouring(s)’ or by a more specific name or description of the flavouring if the flavouring component contains flavourings as defined in points (b), (c), (d), (e), (f), (g) and (h) of Article 3(2) of Regulation (EC) No 1334/2008,
— ‘smoke flavouring(s)’, or ‘smoke flavouring(s) produced from food(s) or food category or source(s)’ (e.g. ‘smoke flavouring produced from beech’), if the flavouring component contains flavourings as defined in point (f) of Article 3(2) of Regulation (EC) No 1334/2008 and imparts a smoky flavour to the food.
2. The term ‘natural’ for the description of flavourings shall be used in accordance with Article 16 of Regulation (EC) No 1334/2008.
3. Quinine and/or caffeine used as a flavouring in the production or preparation of a food shall be mentioned by name in the list of ingredients immediately after the term ‘flavouring(s)’.
PART E — DESIGNATION OF COMPOUND INGREDIENTS
1. A compound ingredient may be included in the list of ingredients, under its own designation in so far as this is laid down by law or established by custom, in terms of its overall weight, and immediately followed by a list of its ingredients.
2. Without prejudice to Article 21, the list of ingredients for compound ingredients shall not be compulsory:
(a) where the composition of the compound ingredient is defined in current Union provisions, and in so far as the compound ingredient constitutes less than 2 % of the finished product; however, this provision shall not apply to food additives, subject to points (a) to (d) of Article 20;
(b) for compound ingredients consisting of mixtures of spices and/or herbs that constitute less than 2 % of the finished product, with the exception of food additives, subject to points (a) to (d) of Article 20; or
(c) where the compound ingredient is a food for which a list of ingredients is not required under Union provisions. ANNEX VIII
QUANTITATIVE INDICATION OF INGREDIENTS
1. The quantitative indication shall not be required:
(a) in respect of an ingredient or category of ingredients:
(i) the drained net weight of which is indicated in accordance with point 5 of Annex IX;
(ii) the quantities of which must already appear on the labelling under Union provisions;
(iii) which is used in small quantities for the purposes of flavouring; or
(iv) which, while appearing in the name of the food, is not such as to govern the choice of the consumer in the country of marketing because the variation in quantity is not essential to characterise the food or does not distinguish it from similar foods;
(b) where specific Union provisions stipulate precisely the quantity of an ingredient or of a category of ingredients without providing for the indication thereof on the labelling; or
(c) in the cases referred to in points 4 and 5 of Part A of Annex VII.
2. Points (a) and (b) of Article 22(1) shall not apply in the case of:
(a) any ingredient or category of ingredients covered by the indication ‘with sweetener(s)’ or ‘with sugar(s) and sweetener(s)’ if that indication accompanies the name of the food, pursuant Annex III; or
(b) any added vitamin and mineral if that substance is subject to a nutrition declaration.
3. The indication of quantity of an ingredient or category of ingredients shall:
(a) be expressed as a percentage, which shall correspond to the quantity of the ingredient or ingredients at the time of its/their use; and
(b) appear either in or immediately next to the name of the food or in the list of ingredients in connection with the ingredient or category of ingredients in question.
4. By way of derogation from point 3:
(a) where foods have lost moisture following heat treatment or other treatment, the quantity shall be expressed as a percentage which shall correspond to the quantity of the ingredient(s) used, related to the finished product, unless that quantity or the total quantity of all the ingredients indicated on the labelling exceeds 100 %, in which case the quantity shall be indicated on the basis of the weight of the ingredient(s) used to prepare 100 g of finished product;
(b) the quantity of volatile ingredients shall be indicated on the basis of their proportion by weight in the finished product;
(c) the quantity of ingredients used in concentrated or dehydrated form and reconstituted during manufacture may be indicated on the basis of their proportion by weight as recorded before their concentration or dehydration;
(d) in the case of concentrated or dehydrated foods which are intended to be reconstituted by the addition of water, the quantity of the ingredients may be indicated on the basis of their proportion by weight in the reconstituted product. ANNEX IX
NET QUANTITY DECLARATION
1. The net quantity declaration shall not be mandatory in the case of foods:
(a) which are subject to considerable losses in their volume or mass and which are sold by number or weighed in the presence of the purchaser;
(b) the net quantity of which is less than 5 g or 5 ml; however, this provision shall not apply to spices and herbs;
(c) normally sold by number, provided that the number of items can clearly be seen and easily counted from the outside or, if not, is indicated on the labelling.
2. Where the indication of a certain type of quantity (such as the nominal quantity, minimum quantity, or average quantity) is required by Union provisions or, where there are none, by national provisions, this quantity shall be regarded as the net quantity for the purposes of this Regulation.
3. Where a prepacked item consists of two or more individual prepacked items containing the same quantity of the same product, the net quantity shall be indicated by mentioning the net quantity contained in each individual package and the total number of such packages. The indication of those particulars shall not, however, be mandatory where the total number of individual packages can be clearly seen and easily counted from the outside and where at least one indication of the net quantity contained in each individual package can be clearly seen from the outside.
4. Where a prepacked item consists of two or more individual packages which are not regarded as units of sale, the net quantity shall be given by indicating the total net quantity and the total number of individual packages.
5. Where a solid food is presented in a liquid medium, the drained net weight of the food shall also be indicated. Where the food has been glazed, the declared net weight of the food shall be exclusive of the glaze.
For the purposes of this point, ‘liquid medium’ shall mean the following products, possibly in mixtures and also where frozen or quick-frozen, provided that the liquid is merely an adjunct to the essential elements of that preparation and is thus not a decisive factor for the purchase: water, aqueous solutions of salts, brine, aqueous solutions of food acids, vinegar, aqueous solutions of sugars, aqueous solutions of other sweetening substances, fruit or vegetable juices in the case of fruit or vegetables. ANNEX X
DATE OF MINIMUM DURABILITY, ‘USE BY’ DATE AND DATE OF FREEZING
1. The date of minimum durability shall be indicated as follows:
(a) the date shall be preceded by the words:
— ‘Best before …’ when the date includes an indication of the day, — ‘Best before end …’ in other cases,
(b) the words referred to in point (a) shall be accompanied by:
— either the date itself, or, — a reference to where the date is given on the labelling,
If need be, these particulars shall be followed by a description of the storage conditions which must be observed if the product is to keep for the specified period;
(c) the date shall consist of the day, the month and possibly, the year, in that order and in uncoded form.
However, in the case of foods:
— which will not keep for more than 3 months, an indication of the day and the month shall be sufficient, — which will keep for more than 3 months but not more than 18 months, an indication of the month and year shall be sufficient, — which will keep for more than 18 months, an indication of the year shall be sufficient,
(d) subject to Union provisions imposing other types of date indication, an indication of the date of minimum durability shall not be required for:
— fresh fruit and vegetables, including potatoes, which have not been peeled, cut or similarly treated; this derogation shall not apply to sprouting seeds and similar products such as legume sprouts, — wines, liqueur wines, sparkling wines, aromatised wines, and similar products obtained from fruit other than grapes, and beverages falling within CN code 2206 00 obtained from grapes or grape musts, — beverages containing 10 % or more by volume of alcohol, — bakers’ or pastry cooks’ wares which, given the nature of their content, are normally consumed within 24 hours of their manufacture, — vinegar, — cooking salt, — solid sugar, — confectionery products consisting almost solely of flavoured and/or coloured sugars, — chewing gums and similar chewing products, 2. The ‘use by’ date shall be indicated as follows:
(a) it shall be preceded by the words ‘use by …’;
(b) the words in point (a) shall be accompanied by:
— either the date itself, or,
— a reference to where the date is given on the labelling,
Those particulars shall be followed by a description of the storage conditions which must be observed;
(c) the date shall consist of the day, the month and, possibly, the year, in that order and in uncoded form;
(d) the ‘use by’ date shall be indicated on each individual prepacked portion.
3. The date of freezing or the date of first freezing as referred to in point 6 of Annex III shall be indicated as follows:
(a) it shall be preceded by the words ‘Frozen on …’;
(b) the words referred to in point (a) shall be accompanied by:
— the date itself, or,
— a reference to where the date is given on the labelling,
(c) the date shall consist of the day, the month and the year, in that order and in uncoded form. ANNEX XI
TYPES OF MEAT FOR WHICH THE INDICATION OF THE COUNTRY OF ORIGIN OR PLACE OF PROVENANCE IS MANDATORY
| CN codes (Combined Nomenclature 2010) | Description | |--------------------------------------|-------------------------------------------------------| | 0203 | Meat of swine, fresh, chilled or frozen | | 0204 | Meat of sheep or goats, fresh, chilled or frozen | | Ex 0207 | Meat of the poultry of heading 0105, fresh, chilled or frozen | ANNEX XII
ALCOHOLIC STRENGTH
The actual alcoholic strength by volume of beverages containing more than 1.2 % by volume of alcohol shall be indicated by a figure to not more than one decimal place. It shall be followed by the symbol '% vol.' and may be preceded by the word 'alcohol' or the abbreviation 'alc'.
The alcoholic strength shall be determined at 20 °C.
Positive and negative allowed tolerances in respect of the indication of the alcoholic strength by volume and expressed in absolute values shall be as listed in the following table. They shall apply without prejudice to the tolerances deriving from the method of analysis used for determining the alcoholic strength.
| Description of beverage | Positive or negative tolerance | |----------------------------------------------------------------------------------------|-------------------------------| | 1. Beers of CN code 2203 00 having an alcoholic strength not exceeding 5.5 % vol.; still beverages falling within CN code 2206 00 obtained from grapes | 0.5 % vol. | | 2. Beers having an alcoholic strength exceeding 5.5 % vol.; sparkling beverages falling within CN code 2206 00 obtained from grapes, ciders, perries, fruit wines and the like, obtained from fruit other than grapes, whether or not semi-sparkling or sparkling; mead | 1 % vol. | | 3. Beverages containing macerated fruit or parts of plants | 1.5 % vol. | | 4. Any other beverages containing more than 1.2 % by volume of alcohol | 0.3 % vol. | ANNEX XIII
REFERENCE INTAKES
PART A — DAILY REFERENCE INTAKES FOR VITAMINS AND MINERALS (ADULTS)
1. Vitamins and minerals which may be declared and their nutrient reference values (NRVs)
| Vitamin/mineral | Reference intake | |-----------------|------------------| | Vitamin A (μg) | 800 | | Vitamin D (μg) | 5 | | Vitamin E (mg) | 12 | | Vitamin K (μg) | 75 | | Vitamin C (mg) | 80 | | Thiamin (mg) | 1,1 | | Riboflavin (mg) | 1,4 | | Niacin (mg) | 16 | | Vitamin B6 (mg) | 1,4 | | Folic acid (μg)| 200 | | Vitamin B12 (μg)| 2,5 | | Biotin (μg) | 50 | | Pantothenic acid (mg) | 6 | | Potassium (mg) | 2 000 | | Chloride (mg) | 800 | | Calcium (mg) | 800 | | Phosphorus (mg) | 700 | | Magnesium (mg) | 375 | | Iron (mg) | 14 | | Zinc (mg) | 10 | | Copper (mg) | 1 | | Manganese (mg) | 2 | | Fluoride (mg) | 3,5 | | Chromium (μg) | 40 | | Selenium (μg) | 55 | | Molybdenum (μg) | 50 | | Iodine (μg) | 150 |
2. Significant amount of vitamins and minerals
As a rule, the following values should be taken into consideration in deciding what constitutes a significant amount:
— 15 % of the nutrient reference values specified in point 1 supplied by 100 g or 100 ml in the case of products other than beverages,
— 7,5 % of the nutrient reference values specified in point 1 supplied by 100 ml in the case of beverages, or,
— 15 % of the nutrient reference values specified in point 1 per portion if the package contains only a single portion,
PART B — REFERENCE INTAKES FOR ENERGY AND SELECTED NUTRIENTS OTHER THAN VITAMINS AND MINERALS (ADULTS)
| Energy or nutrient | Reference intake | |--------------------|------------------| | Energy | 8 400 kJ/2 000 kcal | | Total fat | 70 g | | Saturates | 20 g | | Carbohydrate | 260 g | | Sugars | 90 g | | Protein | 50 g | | Salt | 6 g | ANNEX XIV
CONVERSION FACTORS
CONVERSION FACTORS FOR THE CALCULATION OF ENERGY
The energy value to be declared shall be calculated using the following conversion factors:
| Component | Conversion Factor | |----------------------------|-------------------| | carbohydrate (except polyols), | 17 kJ/g — 4 kcal/g | | polyols, | 10 kJ/g — 2.4 kcal/g | | protein, | 17 kJ/g — 4 kcal/g | | fat, | 37 kJ/g — 9 kcal/g | | salatrim, | 25 kJ/g — 6 kcal/g | | alcohol (ethanol), | 29 kJ/g — 7 kcal/g | | organic acid, | 13 kJ/g — 3 kcal/g | | fibre, | 8 kJ/g — 2 kcal/g | | erythritol, | 0 kJ/g — 0 kcal/g | ANNEX XV
EXPRESSION AND PRESENTATION OF NUTRITION DECLARATION
The units of measurement to be used in the nutrition declaration for energy (kilojoules (kJ) and kilocalories (kcal)) and mass (grams (g), milligrams (mg) or micrograms (μg)) and the order of presentation of the information, as appropriate, shall be the following:
| Energy | kJ/kcal | |--------|---------| | Fat | g | | Of which | | | — Saturates | g | | — Mono-unsaturates | g | | — Polyunsaturates | g | | Carbohydrate | g | | Of which | | | — Sugars | g | | — Polyols | g | | — Starch | g | | Fibre | g | | Protein| g | | Salt | g | | Vitamins and minerals | the units specified in point 1 of Part A of Annex XIII |
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c2cebefa2ba91198b376f55bb5bd9638e0c53d5d | DIRECTIVES
DIRECTIVE 2012/34/EU OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 21 November 2012 establishing a single European railway area (recast) (Text with EEA relevance)
THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION,
Having regard to the Treaty on the Functioning of the European Union, and in particular Article 91 thereof,
Having regard to the proposal from the European Commission,
After transmission of the draft legislative act to the national parliaments,
Having regard to the opinion of the European Economic and Social Committee (1),
Having regard to the opinion of the Committee of the Regions (2),
Acting in accordance with the ordinary legislative procedure (3),
Whereas:
(1) Council Directive 91/440/EEC of 29 July 1991 on the development of the Community's railways (4), Council Directive 95/18/EC of 19 June 1995 on the licensing of railway undertakings (5) and Directive 2001/14/EC of the European Parliament and of the Council of 26 February 2001 on the allocation of railway infrastructure capacity and the levying of charges for the use of railway infrastructure (6) have been substantially amended. Since further amendments are necessary, those Directives should be recast and merged into a single act in the interest of clarity.
(2) Greater integration of the Union transport sector is an essential element of the completion of the internal market, and the railways are a vital part of the Union transport sector moving towards achieving sustainable mobility.
(3) The efficiency of the railway system should be improved, in order to integrate it into a competitive market, whilst taking account of the special features of the railways.
(4) Member States with an important share of rail traffic with third countries which have the same railway gauge which is different from the main rail network within the Union should be able to have specific operational rules ensuring both coordination between their infrastructure managers and those of the third countries concerned and fair competition between railway undertakings.
(5) In order to render railway transport efficient and competitive with other modes of transport, Member States should ensure that railway undertakings have the status of independent operators behaving in a commercial manner and adapting to market needs.
(6) In order to ensure the future development and efficient operation of the railway system, a distinction should be made between the provision of transport services and the operation of infrastructure. Given that situation, it is necessary for these two activities to be managed separately and to have separate accounts. Provided that those separation requirements are met, that no conflicts of interest arise and that the confidentiality of commercially sensitive information is guaranteed, infrastructure managers should have the possibility to outsource specific administrative tasks, such as the collection of charges, to entities other than those active in railway transport services markets.
(7) The principle of freedom to provide services should be applied to the railway sector, taking into account that sector's specific characteristics.
(8) In order to boost competition in railway service management in terms of improved comfort and the services provided to users, Member States should retain general responsibility for the development of the appropriate railway infrastructure.
(1) OJ C 132, 3.5.2011, p. 99. (2) OJ C 104, 2.4.2011, p. 53. (3) Position of the European Parliament of 16 November 2011 (not yet published in the Official Journal) and Position of the Council at first reading of 8 March 2012 (OJ C 108 E, 14.4.2012, p. 8). Position of the European Parliament of 3 July 2012 and decision of the Council of 29 October 2012. (4) OJ L 237, 24.8.1991, p. 25. (5) OJ L 143, 27.6.1995, p. 70. (6) OJ L 75, 15.3.2001, p. 29. In the absence of common rules on allocation of infrastructure costs, Member States should, after consulting the infrastructure manager, lay down rules providing for railway undertakings to pay for the use of railway infrastructure. Such rules should not discriminate between railway undertakings.
Member States should ensure that infrastructure managers and existing publicly owned or controlled railway transport undertakings are given a sound financial structure, having due regard to Union rules on State aid. This is without prejudice to the competence of the Member States regarding infrastructure planning and financing.
Applicants should be given the opportunity to express their views on the content of the business plan as far as the use, provision and development of the infrastructure are concerned. This should not necessarily entail full disclosure of the business plan developed by the infrastructure manager.
Since private branch lines and sidings, such as sidings and lines in private industrial facilities, are not part of the railway infrastructure as defined by this Directive, managers of those infrastructures should not be subject to the obligations imposed on infrastructure managers under this Directive. However, non-discriminatory access to branch lines and sidings should be guaranteed, irrespective of their ownership, where they are needed to get access to services facilities which are essential for the provision of transport services and where serving or potentially serving more than one final customer.
Member States should be able to decide to cover infrastructure expenditure through means other than direct State funding, such as public private partnership and private sector financing.
The profit and loss account of an infrastructure manager should be balanced over a reasonable time period, which, once established, might be exceeded under exceptional circumstances, such as a major and sudden deterioration in the economic situation in a Member State affecting substantially the level of traffic on its infrastructure or the level of available public financing. In accordance with international accounting rules, the amount of loans to finance infrastructure projects does not appear in such profit and loss accounts.
An efficient freight sector, especially across borders, requires action to open up the market.
In order to ensure that access rights to railway infrastructure are applied throughout the Union in a uniform and non-discriminatory manner, it is appropriate to introduce a licence for railway undertakings.
In the case of journeys with intermediate stops, new market entrants should be authorised to pick up and set down passengers along the route in order to ensure that such operations are economically viable and to avoid placing potential competitors at a disadvantage compared to existing operators.
The introduction of new, open-access, international passenger services with intermediate stops should not be used to open up the market for domestic passenger services, but should merely focus on stops that are ancillary to the international route. The principal purpose of the new services should be to carry passengers travelling on an international journey. When assessing whether that is the service's principal purpose, criteria such as the proportion of turnover, and of volume, derived from transport of domestic or international passengers, and the length of the service should be taken into account. The assessment of the service's principal purpose should be carried out by the respective national regulatory body at the request of an interested party.
Regulation (EC) No 1370/2007 of the European Parliament and of the Council of 23 October 2007 on public passenger transport services by rail and by road (1) authorises Member States and local authorities to award public service contracts which may contain exclusive rights to operate certain services. It is therefore necessary to ensure that the provisions of that Regulation are consistent with the principle of opening up international passenger services to competition.
Opening up international passenger services to competition may have implications for the organisation and financing of rail passenger services provided under a public service contract. Member States should have the option of limiting the right of access to the market where that right would compromise the economic equilibrium of those public service contracts and where approval is given by the relevant regulatory body on the basis of an objective economic analysis, following a request from the competent authorities that awarded the public service contract.
The assessment of whether the economic equilibrium of the public service contract has been compromised should take into account predetermined criteria such as the
(1) OJ L 315, 3.12.2007, p. 1. impact on the profitability of any services which are included in a public service contract, including the resulting impacts on the net cost to the competent public authority that awarded the contract, passenger demand, ticket pricing, ticketing arrangements, location and number of stops on both sides of the border and timing and frequency of the proposed new service. In accordance with such an assessment and the decision of the relevant regulatory body, Member States should be able to authorise, modify or deny the right of access for the international passenger service sought, including the levying of a charge on the operator of a new international passenger service, in line with the economic analysis and in accordance with Union law and the principles of equality and non-discrimination.
(22) In order to contribute to the operation of passenger services on lines fulfilling a public service obligation, Member States should be able to authorise the authorities responsible for those services to impose a levy on passenger services which fall within the jurisdiction of those authorities. That levy should contribute to the financing of public service obligations laid down in public service contracts.
(23) The regulatory body should function in a way which avoids any conflict of interests and any possible involvement in the award of the public service contract under consideration. The powers of the regulatory body should be extended to allow for an assessment of the purpose of an international service and, where appropriate, of the potential economic impact on existing public service contracts.
(24) In order to invest in services using specialised infrastructure, such as high-speed railway lines, applicants need legal certainty given the substantial long-term investment involved.
(25) The regulatory bodies should exchange information and, where relevant in individual cases, should coordinate the principles and practice of assessing whether the economic equilibrium of a public service contract is compromised. They should progressively develop guidelines based on their experience.
(26) In order to ensure fair competition between railway undertakings and to guarantee full transparency and the non-discriminatory access to and supply of services, a distinction should be made between the provision of transport services and the operation of service facilities. Thus, it is necessary for these two types of activity to be managed independently where the operator of the service facility belongs to a body or firm which is also active and holds a dominant position at national level in at least one of the railway transport markets for the carriage of goods or passengers for which the facility is used. Such independence should not entail the establishment of a separate legal entity for service facilities.
(27) Non-discriminatory access to service facilities and the supply of rail-related services in these facilities should allow railway undertakings to offer better services to passengers and freight users.
(28) While Directive 2009/72/EC of the European Parliament and of the Council of 13 July 2009 concerning common rules for the internal market in electricity (1) provides for the opening of the European electricity market, traction current should be supplied to railway undertakings upon request in a non-discriminatory manner. When there is only one supplier available, the charge imposed for such service should be set under uniform charging principles.
(29) In respect of relations with third countries, special consideration should be given to the existence of reciprocal access for Union railway undertakings to the rail market of those third countries and this should be facilitated through the cross-border agreements.
(30) In order to ensure dependable and adequate services, it is necessary to ensure that, at all times, railway undertakings meet certain requirements in relation to good repute, financial fitness and professional competence.
(31) For the protection of customers and the third parties concerned it is essential to ensure that railway undertakings are sufficiently insured against liability. Coverage of that liability in the event of accidents through guarantees provided by banks or other undertakings should also be allowed, provided that such coverage is offered under market conditions, does not result in State aid and does not contain elements of discrimination against other railway undertakings.
(32) A railway undertaking should also be required to comply with national and Union law on the provision of railway services, applied in a non-discriminatory manner, which are intended to ensure that it can carry on its activity in complete safety and with due regard to health, social conditions and the rights of workers and consumers on specific stretches of track.
(33) The procedures for granting, maintaining and amending licences for railway undertakings should be transparent and in accordance with the principle of non-discrimination.
(1) OJ L 211, 14.8.2009, p. 55. To ensure transparency and non-discriminatory access to rail infrastructure, and to services in service facilities, for all railway undertakings, all the information required to use access rights should be published in a network statement. The network statement should be published in at least two official languages of the Union in line with existing international practices.
Appropriate capacity-allocation schemes for rail infrastructure coupled with competitive operators will result in a better balance of transport between modes.
Infrastructure managers should be given incentives, such as bonuses for managing directors, to reduce the level of access charges and the costs of providing infrastructure.
The obligation of Member States to ensure that the infrastructure manager performance targets and medium to long-term incomes are implemented through a contractual agreement between the competent authority and the infrastructure manager should be without prejudice to the competence of the Member States regarding planning of and financing for railway infrastructure.
Encouraging optimal use of the railway infrastructure will lead to a reduction in the cost of transport to society.
Methods for apportioning costs established by infrastructure managers should be based on the best available understanding of cost causation and should apportion costs to the different services offered to railway undertakings and, where relevant, to types of rail vehicles.
Appropriate charging schemes for rail infrastructure coupled with appropriate charging schemes for other transport infrastructures and competitive operators should result in an optimal balance of different transport modes on a sustainable basis.
When levying mark-ups, distinct market segments should be defined by the infrastructure manager where the costs of providing the transport services, their market prices or their requirements for service quality differ considerably.
The charging and capacity-allocation schemes should permit equal and non-discriminatory access for all undertakings and should attempt, as far as possible, to meet the needs of all users and traffic types in a fair and non-discriminatory manner. Such schemes should allow fair competition in the provision of railway services.
Within the framework set out by Member States, charging and capacity-allocation schemes should encourage railway infrastructure managers to optimise use of their infrastructure.
Railway undertakings should receive clear and consistent economic signals from capacity-allocation schemes and from charging schemes which lead them to make rational decisions.
Rolling noise caused by brake blocks with cast iron technology, used on freight wagons, is one of the causes of noise emissions that could be reduced with appropriate technical solutions. Noise differentiated infrastructure charges should primarily address the freight wagons that do not fulfil the requirements of Commission Decision 2006/66/EC of 23 December 2005 concerning the technical specification for interoperability relating to the subsystem 'rolling stock — noise' of the trans-European conventional rail system (1). When such differentiation results in a loss of revenue for the infrastructure manager, it should be without prejudice to Union rules on State aid.
Noise-differentiated infrastructure charges should complement other measures to reduce noise produced by rail traffic, such as the adoption of technical specifications for interoperability (TSI) setting maximum levels of noise produced by railway vehicles, noise mapping and action plans to reduce noise exposure under Directive 2002/49/EC of the European Parliament and of the Council of 25 June 2002 relating to the assessment and management of environmental noise (2) as well as Union and national public funding for the retrofitting of rail vehicles and for noise-reduction infrastructures.
Noise-reduction measures equivalent to those adopted for the rail sector should be considered for other modes of transport.
In order to accelerate the installation of the European Train Control System (ETCS) on board locomotives, infrastructure managers should modify the charging system through a temporary differentiation for trains equipped with ETCS. Such a differentiation should give appropriate incentives to equip trains with ETCS.
In order to take into account the need of users, or potential users, of railway infrastructure capacity to plan their business, and the needs of customers and funders, it is important that infrastructure managers ensure that infrastructure capacity is allocated in a way which reflects the need to maintain and improve service reliability levels.
(1) OJ L 37, 8.2.2006, p. 1. (2) OJ L 189, 18.7.2002, p. 12. It is desirable for railway undertakings and the infrastructure manager to be provided with incentives to minimise disruption and improve performance of the network.
Member States should have the option of allowing purchasers of railway services to enter the capacity-allocation process directly.
It is important to have regard to the business requirements of both applicants and the infrastructure manager.
It is important to maximise the flexibility available to infrastructure managers with regard to the allocation of infrastructure capacity, but this should be consistent with satisfying the applicant’s reasonable requirements.
The capacity-allocation process should prevent the imposition of undue constraints on the wishes of other undertakings, holding, or intending to hold, rights to use the infrastructure, to develop their business.
Capacity allocation and charging schemes may need to take account of the fact that different components of the rail infrastructure network may have been designed with different principal users in mind.
As different users and types of users will frequently have a different impact on infrastructure capacity, the needs of different services need to be properly balanced.
Services operated under contract to a public authority may require special rules to safeguard their attractiveness to users.
The charging and capacity-allocation schemes should take account of the effects of increasing saturation of infrastructure capacity and, ultimately, the scarcity of capacity.
The different time-frames for planning traffic types should ensure that requests for infrastructure capacity which are made after the completion of the process for establishing the annual working timetable can be satisfied.
To ensure the optimum outcome for railway undertakings, it is desirable to require an examination of the use of infrastructure capacity when the coordination of requests for capacity is required to meet the needs of users.
In view of their monopolistic position, infrastructure managers should be required to examine the available infrastructure capacity, and methods of enhancing it when the capacity-allocation process is unable to meet the requirements of users.
A lack of information about other railway undertakings' requests and about the constraints within the system may make it difficult for railway undertakings to seek to optimise their infrastructure capacity requests.
It is important to ensure better coordination of allocation schemes in order to improve the attractiveness of rail for traffic which uses the network of more than one infrastructure manager, in particular for international traffic.
It is important to minimise the distortions of competition which may arise, either between railway infrastructures or transport modes, from significant differences in charging principles.
It is desirable to define those components of the infrastructure service which are essential to enable an operator to provide a service and which should be provided in return for minimum access charges.
Investment in railway infrastructure is necessary and infrastructure charging schemes should provide incentives for infrastructure managers to make appropriate investments economically attractive.
To enable the establishment of appropriate and fair levels of infrastructure charges, infrastructure managers need to record and establish the value of their assets and develop a clear understanding of the factors which determine the cost of operating the infrastructure.
It is desirable to ensure that account is taken of external costs when making transport decisions and that rail infrastructure charging can contribute to the internalisation of external costs in a coherent and balanced way across all modes of transport.
It is important to ensure that charges for domestic and international traffic are such as to permit rail to meet the needs of the market. Consequently, infrastructure charging should be set at the cost that is directly incurred as a result of operating the train service.
The overall level of cost recovery through infrastructure charges affects the necessary level of government contribution. Member States may require different levels of overall cost recovery. However, any infrastructure charging scheme should allow traffic which can at least pay for the additional cost which it imposes to use the rail network.
Railway infrastructure is a natural monopoly and it is therefore necessary to provide infrastructure managers with incentives to reduce costs and to manage their infrastructure efficiently.
The development of railway transport should be achieved by using, inter alia, the Union instruments available, without prejudice to priorities already established. (73) Discounts which are granted to railway undertakings should relate to actual administrative cost savings made, in particular transaction costs savings. Discounts may also be granted to promote the efficient use of infrastructure.
(74) It is desirable for railway undertakings and the infrastructure manager to be provided with incentives to minimise disruption of the network.
(75) The allocation of capacity is associated with a cost to the infrastructure manager, payment for which should be required.
(76) The efficient management and fair and non-discriminatory use of rail infrastructure require the establishment of a regulatory body that oversees the application of the rules set out in this Directive and acts as an appeal body, without prejudice to the possibility of judicial review. Such a regulatory body should be able to enforce its information requests and decisions by means of appropriate penalties.
(77) The financing of the regulatory body should guarantee its independence and should come either from the State budget or from contributions of the sector levied in a compulsory way, while respecting the principles of fairness, transparency, non-discrimination and proportionality.
(78) Appropriate procedures for appointing staff should contribute to guaranteeing the independence of the regulatory body, ensuring in particular that the appointment of persons in charge of decisions is made by a public authority which does not directly exert ownership rights over regulated undertakings. Provided that that condition is met, such an authority could be, for example, a parliament, a President or a Prime Minister.
(79) Specific measures are required to take account of the specific geopolitical and geographical situation of certain Member States and the particular organisation of the railway sector in various Member States while ensuring the integrity of the internal market.
(80) In order to take into account the evolution of the rail market, the power to adopt acts in accordance with Article 290 of the Treaty on the Functioning of the European Union (TFEU) should be delegated to the Commission in respect of the technical amendments to the information to be provided by the undertaking applying for a licence, to the list of classes of delay, to the schedule for the allocation process, and to the accounting information to be supplied to the regulatory bodies. It is of particular importance that the Commission carry out appropriate consultations during its preparatory work, including at expert level. The Commission, when preparing and drawing up delegated acts, should ensure a simultaneous, timely and appropriate transmission of relevant documents to the European Parliament and to the Council.
(81) In order to ensure uniform conditions for the implementation of this Directive, implementing powers should be conferred on the Commission. Those powers should be exercised in accordance with Regulation (EU) No 182/2011 of the European Parliament and of the Council of 16 February 2011 laying down the rules and general principles concerning mechanisms for control by Member States of the Commission’s exercise of implementing powers (1).
(82) Implementing acts related to the principal purpose of rail services, the assessment of impact of new international services on the economic equilibrium of public service contracts, the levies on railway undertakings providing passenger services, access to the services to be supplied in essential service facilities, the details on the procedure to be followed to obtain a licence, the modalities for the calculation of direct cost for the application of the charging for the cost of noise effects and for the application of the differentiation of the infrastructure charge to give incentives to equip trains with ETCS and the common principles and practices for the regulatory bodies decision-making should not be adopted by the Commission where the committee established pursuant to this Directive delivers no opinion on the draft implementing act presented by the Commission.
(83) Since the objectives of this Directive, namely to foster the development of the Union railways, to set out broad principles for granting licences to railway undertakings and to coordinate arrangements in the Member States governing the allocation of railway infrastructure capacity and the charges made for the use thereof, cannot be sufficiently achieved by the Member States on account of the manifestly international dimension of issuing such licences and operating significant elements of the railway networks, and of the need to ensure fair and non-discriminatory terms for access to the infrastructure, and can therefore, by reason of their trans-national implications, be better achieved at Union level, the Union may adopt measures in accordance with the principle of subsidiarity as set out in Article 5 of the Treaty on European Union. In accordance with the principle of proportionality, as set out in that Article, this Directive does not go beyond what is necessary to achieve those objectives.
(84) The obligation to transpose this Directive into national law should be confined to those provisions which represent a substantive change as compared with the earlier Directives. The obligation to transpose the provisions of this Directive, which are substantively unchanged as compared with the earlier Directives, arises under those Directives.
(1) OJ L 55, 28.2.2011, p. 13. The Member States which have no railway system, and no immediate prospect of having one, would be subject to a disproportionate and pointless obligation if they had to transpose and implement Chapters II and IV of this Directive. Therefore, such Member States should be exempted from that obligation.
In accordance with the Joint Political Declaration of Member States and the Commission of 28 September 2011 on explanatory documents (1), Member States have undertaken to accompany, in justified cases, the notification of their transposition measures with one or more documents explaining the relationship between the components of a Directive and the corresponding parts of national transposition instruments. With regard to this Directive, the legislator considers the transmission of such documents to be justified.
This Directive should be without prejudice to the time limits set out in Part B of Annex IX, within which Member States are to comply with the earlier Directives.
HAVE ADOPTED THIS DIRECTIVE:
CHAPTER I GENERAL PROVISIONS
Article 1 Subject-matter and scope
1. This Directive lays down:
(a) the rules applicable to the management of railway infrastructure and to rail transport activities of the railway undertakings established or to be established in a Member State as set out in Chapter II;
(b) the criteria applicable to the issuing, renewal or amendment of licences by a Member State intended for railway undertakings which are or will be established in the Union as set out in Chapter III;
(c) the principles and procedures applicable to the setting and collecting of railway infrastructure charges and the allocation of railway infrastructure capacity as set out in Chapter IV.
2. This Directive applies to the use of railway infrastructure for domestic and international rail services.
Article 2 Exclusions from the scope
1. Chapter II shall not apply to railway undertakings which only operate urban, suburban or regional services on local and regional stand-alone networks for transport services on railway infrastructure or on networks intended only for the operation of urban or suburban rail services.
Notwithstanding the first subparagraph, when such a railway undertaking is under the direct or indirect control of an undertaking or another entity performing or integrating rail transport services other than urban, suburban or regional services, Articles 4 and 5 shall apply. Article 6 shall also apply to such a railway undertaking with regard to the relationship between the railway undertaking and the undertaking or entity which controls it directly or indirectly.
2. Member States may exclude the following from the application of Chapter III:
(a) undertakings which only operate rail passenger services on local and regional stand-alone railway infrastructure;
(b) undertakings which only operate urban or suburban rail passenger services;
(c) undertakings which only operate regional rail freight services;
(d) undertakings which only operate freight services on privately owned railway infrastructure that exists solely for use by the infrastructure owner for its own freight operations.
3. Member States may exclude the following from the application of Articles 7, 8 and 13 and Chapter IV:
(a) local and regional stand-alone networks for passenger services on railway infrastructure;
(b) networks intended only for the operation of urban or suburban rail passenger services;
(c) regional networks which are used for regional freight services solely by a railway undertaking that is not covered under paragraph 1 until capacity on that network is requested by another applicant;
(d) privately owned railway infrastructure that exists solely for use by the infrastructure owner for its own freight operations.
4. Without prejudice to paragraph 3, Member States may exclude local and regional railway infrastructures which do not have any strategic importance for the functioning of the rail market from the application of Article 8(3) and local railway infrastructures which do not have any strategic importance for the functioning of the rail market from the application of Chapter IV. Member States shall notify the Commission of their intention to exclude such railway infrastructures. In accordance with the advisory procedure referred to in Article 62(2), the Commission shall decide whether such railway infrastructure may be considered to be without any strategic importance taking into account the length of railway lines concerned, their level of use and the traffic volume potentially impacted.
(1) OJ C 369, 17.12.2011, p. 14. 5. Member States may exclude from the application of Article 31(5) vehicles operated or intended to be operated from and to third countries, running on a network whose track gauge is different from the main rail network within the Union.
06. Member States may decide time periods and deadlines for the schedule for capacity allocation which are different from those referred to in Article 43(2), point 2(b) of Annex VI and points 3, 4 and 5 of Annex VII if the establishment of international train paths in cooperation with infrastructure managers of third countries on a network whose track gauge is different from the main rail network within the Union has a significant impact on the schedule for capacity allocation in general.
07. Member States may decide to publish the charging framework and charging rules applicable specifically to international freight services from and to third countries operated on a network whose track gauge is different from the main rail network within the Union with different instruments and deadlines than those provided under Article 29(1) where this is required to ensure fair competition.
08. Member States may exclude from the application of Chapter IV railway infrastructure, whose track gauge is different from the main rail network within the Union, and which connects cross-border stations of a Member State to the territory of a third country.
09. This Directive shall not apply to undertakings the business of which is limited to providing solely shuttle services for road vehicles through undersea tunnels or to transport operations in the form of shuttle services for road vehicles through such tunnels except Article 6(1) and (4) and Articles 10, 11, 12 and 28.
10. Member States may exclude from the application of Chapter II, with the exception of Article 14, and Chapter IV, any railway service carried out in transit through the Union.
11. Member States may exclude from the application of Article 32(4) trains not equipped with the European Train Control System (ETCS) and used for regional passenger services which have been placed into service for the first time before 1985.
Article 3
Definitions
For the purpose of this Directive, the following definitions apply:
(1) 'railway undertaking' means any public or private undertaking licensed according to this Directive, the principal business of which is to provide services for the transport of goods and/or passengers by rail with a requirement that the undertaking ensure traction; this also includes undertakings which provide traction only;
(2) 'infrastructure manager' means any body or firm responsible in particular for establishing, managing and maintaining railway infrastructure, including traffic management and control-command and signalling; the functions of the infrastructure manager on a network or part of a network may be allocated to different bodies or firms;
(3) 'railway infrastructure' means the items listed in Annex I;
(4) 'international freight service' means a transport service where the train crosses at least one border of a Member State; the train may be joined and/or split and the different sections may have different origins and destinations, provided that all wagons cross at least one border;
(5) 'international passenger service' means a passenger service where the train crosses at least one border of a Member State and where the principal purpose of the service is to carry passengers between stations located in different Member States; the train may be joined and/or split, and the different sections may have different origins and destinations, provided that all carriages cross at least one border;
(6) 'urban and suburban services' means transport services whose principal purpose is to meet the transport needs of an urban centre or conurbation, including a cross-border conurbation, together with transport needs between such a centre or conurbation and surrounding areas;
(7) 'regional services' means transport services whose principal purpose is to meet the transport needs of a region, including a cross-border region;
(8) 'transit' means crossing territory of the Union without loading or unloading goods, and/or without picking up passengers or setting them down in territory of the Union;
(9) 'alternative route' means another route between the same origin and destination where there is substitutability between the two routes for the operation of the freight or passenger service concerned by the railway undertaking;
(10) 'viable alternative' means access to another service facility which is economically acceptable to the railway undertaking, and allows it to operate the freight or passenger service concerned;
(11) 'service facility' means the installation, including ground area, building and equipment, which has been specially arranged, as a whole or in part, to allow the supply of one or more services referred to in points 2 to 4 of Annex II; (12) 'operator of service facility' means any public or private entity responsible for managing one or more service facilities or supplying one or more services to railway undertakings referred to in points 2 to 4 of Annex II;
(13) 'cross-border agreement' means any agreement between two or more Member States or between Member States and third countries intended to facilitate the provision of cross-border rail services;
(14) 'licence' means an authorisation issued by a licensing authority to an undertaking, by which its capacity to provide rail transport services as a railway undertaking is recognised; that capacity may be limited to the provision of specific types of services;
(15) 'licensing authority' means the body responsible for granting licences within a Member State;
(16) 'contractual agreement' means an agreement or, mutatis mutandis, an arrangement within the framework of administrative measures;
(17) 'reasonable profit' means a rate of return on own capital that takes account of the risk, including that to revenue, or the absence of such risk, incurred by the operator of the service facility and is in line with the average rate for the sector concerned in recent years;
(18) 'allocation' means the allocation of railway infrastructure capacity by an infrastructure manager;
(19) 'applicant' means a railway undertaking or an international grouping of railway undertakings or other persons or legal entities, such as competent authorities under Regulation (EC) No 1370/2007 and shippers, freight forwarders and combined transport operators, with a public-service or commercial interest in procuring infrastructure capacity;
(20) 'congested infrastructure' means an element of infrastructure for which demand for infrastructure capacity cannot be fully satisfied during certain periods even after coordination of the different requests for capacity;
(21) 'capacity-enhancement plan' means a measure or series of measures with a calendar for their implementation which aim to alleviate the capacity constraints which led to the declaration of an element of infrastructure as 'congested infrastructure';
(22) 'coordination' means the process through which the infrastructure manager and applicants will attempt to resolve situations in which there are conflicting applications for infrastructure capacity;
(23) 'framework agreement' means a legally binding general agreement under public or private law, setting out the rights and obligations of an applicant and the infrastructure manager in relation to the infrastructure capacity to be allocated and the charges to be levied over a period longer than one working timetable period;
(24) 'infrastructure capacity' means the potential to schedule train paths requested for an element of infrastructure for a certain period;
(25) 'network' means the entire railway infrastructure managed by an infrastructure manager;
(26) 'network statement' means the statement which sets out in detail the general rules, deadlines, procedures and criteria for charging and capacity-allocation schemes, including such other information as is required to enable applications for infrastructure capacity;
(27) 'train path' means the infrastructure capacity needed to run a train between two places over a given period;
(28) 'working timetable' means the data defining all planned train and rolling-stock movements which will take place on the relevant infrastructure during the period for which it is in force;
(29) 'storage siding' means sidings specifically dedicated to temporary parking of railway vehicles between two assignments;
(30) 'heavy maintenance' means work that is not carried out routinely as part of day-to-day operations and requires the vehicle to be removed from service.
CHAPTER II DEVELOPMENT OF THE UNION RAILWAYS SECTION 1 Management independence
Article 4 Independence of railway undertakings and infrastructure managers
1. Member States shall ensure that, as regards management, administration and internal control over administrative, economic and accounting matters, railway undertakings directly or indirectly owned or controlled by Member States have independent status in accordance with which they will hold, in particular, assets, budgets and accounts which are separate from those of the State.
2. While respecting the charging and allocation framework and the specific rules established by the Member States, the infrastructure manager shall be responsible for its own management, administration and internal control.
Article 5 Management of the railway undertakings according to commercial principles
1. Member States shall enable railway undertakings to adjust their activities to the market and to manage those activities under the responsibility of their management bodies, in the interests of providing efficient and appropriate services at the lowest possible cost for the quality of service required.
Railway undertakings shall be managed according to the principles which apply to commercial companies, irrespective of their ownership. This shall also apply to the public service obligations imposed on them by Member States and to public service contracts which they conclude with the competent authorities of the State.
2. Railway undertakings shall determine their business plans, including their investment and financing programmes. Such plans shall be designed to achieve the undertakings' financial equilibrium and other technical, commercial and financial management objectives; they shall also indicate the means of attaining those objectives.
3. With reference to the general policy guidelines issued by each Member State and taking into account national plans and contracts (which may be multiannual) including investment and financing plans, railway undertakings shall, in particular, be free to:
(a) establish their internal organisation, without prejudice to the provisions of Articles 7, 29 and 39;
(b) control the supply and marketing of services and fix the pricing thereof;
(c) take decisions on staff, assets and own procurement;
(d) expand their market share, develop new technologies and new services and adopt any innovative management techniques;
(e) establish new activities in fields associated with the railway business.
This paragraph is without prejudice to Regulation (EC) No 1370/2007.
4. Notwithstanding paragraph 3, shareholders of publicly owned or controlled railway undertakings shall be able to require their own prior approval for major business management decisions in the same way as shareholders of private joint-stock companies under the rules of the company law of Member States relating to the appointment of board members.
SECTION 2 Separation of infrastructure management and transport operations and of different types of transport operations
Article 6 Separation of accounts
1. Member States shall ensure that separate profit and loss accounts and balance sheets are kept and published, on the one hand, for business relating to the provision of transport services by railway undertakings and, on the other, for business relating to the management of railway infrastructure. Public funds paid to one of these two areas of activity shall not be transferred to the other.
2. Member States may also provide that this separation shall require the organisation of distinct divisions within a single undertaking or that the infrastructure and transport services shall be managed by separate entities.
3. Member States shall ensure that separate profit and loss accounts and balance sheets are kept and published, on the one hand, for business relating to the provision of rail freight transport services and, on the other, for activities relating to the provision of passenger transport services. Public funds paid for activities relating to the provision of transport services as public-service remits shall be shown separately in accordance with Article 7 of Regulation (EC) No 1370/2007 in the relevant accounts and shall not be transferred to activities relating to the provision of other transport services or any other business.
4. The accounts for the different areas of activity referred to in paragraphs 1 and 3 shall be kept in a way that allows for monitoring of the prohibition on transferring public funds paid to one area of activity to another and the monitoring of the use of income from infrastructure charges and surpluses from other commercial activities.
Article 7 Independence of essential functions of an infrastructure manager
1. Member States shall ensure that the essential functions determining equitable and non-discriminatory access to infrastructure, are entrusted to bodies or firms that do not themselves provide any rail transport services. Regardless of organisational structures, this objective shall be shown to have been achieved.
The essential functions shall be:
(a) decision-making on train path allocation, including both the definition and the assessment of availability and the allocation of individual train paths; and (b) decision-making on infrastructure charging, including determination and collection of the charges, without prejudice to Article 29(1).
Member States may, however, assign to railway undertakings or any other body the responsibility for contributing to the development of the railway infrastructure, for example through investment, maintenance and funding.
2. Where the infrastructure manager, in its legal form, organisation or decision-making functions, is not independent of any railway undertaking, the functions referred to in Sections 2 and 3 of Chapter IV shall be performed respectively by a charging body and by an allocation body that are independent in their legal form, organisation and decision-making from any railway undertaking.
3. When the provisions of Sections 2 and 3 of Chapter IV refer to the essential functions of an infrastructure manager, they shall be understood as applying to the charging body or the allocation body for their respective powers.
SECTION 3
Improvement of the financial situation
Article 8
Financing of the infrastructure manager
1. Member States shall develop their national railway infrastructure by taking into account, where necessary, the general needs of the Union, including the need to cooperate with neighbouring third countries. For that purpose, they shall publish by 16 December 2014, after consultation with the interested parties, an indicative rail infrastructure development strategy with a view to meeting future mobility needs in terms of maintenance, renewal and development of the infrastructure based on sustainable financing of the railway system. That strategy shall cover a period of at least five years and be renewable.
2. Having due regard to Articles 93, 107 and 108 TFEU, Member States may also provide the infrastructure manager with financing consistent with its functions as referred to in point (2) of Article 3, the size of the infrastructure and financial requirements, in particular in order to cover new investments. Member States may decide to finance those investments through means other than direct State funding. In any case, Member States shall comply with the requirements referred to in paragraph 4 of this Article.
3. Within the framework of general policy determined by the Member State concerned and taking into account the strategy referred to in paragraph 1 and the financing provided by the Member States referred to in paragraph 2, the infrastructure manager shall adopt a business plan including investment and financial programmes. The plan shall be designed to ensure optimal and efficient use, provision and development of the infrastructure while ensuring financial balance and providing means for these objectives to be achieved. The infrastructure manager shall ensure that known applicants and, upon their request, potential applicants have access to the relevant information and are given the opportunity to express their views on the content of the business plan regarding the conditions for access and use and the nature, provision and development of the infrastructure before its approval by the infrastructure manager.
4. Member States shall ensure that, under normal business conditions and over a reasonable period which shall not exceed a period of five years, the profit and loss account of an infrastructure manager shall at least balance income from infrastructure charges, surpluses from other commercial activities, non-refundable incomes from private sources and State funding, on the one hand, including advance payments from the State, where appropriate, and infrastructure expenditure, on the other hand.
Without prejudice to the possible long-term aim of user cover of infrastructure costs for all modes of transport on the basis of fair, non-discriminatory competition between the various modes, where rail transport is able to compete with other modes of transport, within the charging framework of Articles 31 and 32, a Member State may require the infrastructure manager to balance his accounts without State funding.
Article 9
Transparent debt relief
1. Without prejudice to Union rules on State aid and in accordance with Articles 93, 107 and 108 TFEU, Member States shall set up appropriate mechanisms to help reduce the indebtedness of publicly owned or controlled railway undertakings to a level which does not impede sound financial management and which improves their financial situation.
2. For the purposes referred to in paragraph 1, Member States may require a separate debt amortisation unit to be set up within the accounting departments of such railway undertakings.
The balance sheet of the unit may be charged with all the loans raised by the railway undertaking, both to finance investment and to cover excess operating expenditure resulting from the business of rail transport or from railway infrastructure management, until such time as these loans are extinguished. Debts arising from subsidiaries’ operations shall not be taken into account.
3. Paragraphs 1 and 2 shall apply only to debts or interest due on such debts incurred by publicly owned or controlled railway undertakings by the date of market opening for all or part of rail transport services in the Member State concerned and in any case by 15 March 2001 or the date of accession to the Union for the Member States which joined the Union after that date. SECTION 4
Access to railway infrastructure and services
Article 10
Conditions of access to railway infrastructure
1. Railway undertakings shall be granted, under equitable, non-discriminatory and transparent conditions, the right to access to the railway infrastructure in all Member States for the purpose of operating all types of rail freight services. That right shall include access to infrastructure connecting maritime and inland ports and other service facilities referred to in point 2 of Annex II, and to infrastructure serving or potentially serving more than one final customer.
2. Railway undertakings shall be granted the right of access to railway infrastructure in all Member States for the purpose of operating an international passenger service. Railway undertakings shall, in the course of an international passenger service, have the right to pick up passengers at any station located along the international route and set them down at another, including stations located in the same Member State. That right shall include access to infrastructure connecting service facilities referred to in point 2 of Annex II.
3. Following the request from the relevant competent authorities or interested railway undertakings, the relevant regulatory body or bodies referred to in Article 55 shall determine whether the principal purpose of the service is to carry passengers between stations located in different Member States.
4. Based on the experience of regulatory bodies, competent authorities and railway undertakings and based on the activities of the network referred to in Article 57(1), the Commission shall adopt by 16 December 2016 measures setting out the details of the procedure and criteria to be followed for the application of paragraph 3 of this Article. Those implementing acts shall be adopted in accordance with the examination procedure referred to in Article 62(3).
Article 11
Limitation of the right of access and of the right to pick up and set down passengers
1. Member States may limit the right of access provided for in Article 10 on services between a place of departure and a destination which are covered by one or more public service contracts which are in accordance with Union law. Such limitation shall not have the effect of restricting the right to pick up passengers at any station located along the route of an international service and to set them down at another, including stations located in the same Member State, except where the exercise of that right would compromise the economic equilibrium of a public service contract.
2. Whether the economic equilibrium of a public service contract would be compromised shall be determined by the relevant regulatory body or bodies referred to in Article 55 on the basis of an objective economic analysis and based on pre-determined criteria, after a request from any of the following:
(a) the competent authority or competent authorities that awarded the public service contract;
(b) any other interested competent authority with the right to limit access under this Article;
(c) the infrastructure manager;
(d) the railway undertaking performing the public service contract.
The competent authorities and the railway undertakings providing the public services shall provide the relevant regulatory body or bodies with the information reasonably required to reach a decision. The regulatory body shall consider the information provided by these parties, and, as appropriate, shall ask for relevant information from, and initiate consultation with, all relevant parties, within one month of receipt of the request. The regulatory body shall consult all the relevant parties as appropriate, and shall inform the relevant parties of its reasoned decision within a pre-determined, reasonable time, and, in any case, within six weeks of receipt of all relevant information.
3. The regulatory body shall give the grounds for its decision and specify the time period within which, and the conditions under which, any of the following may request a reconsideration of the decision:
(a) the relevant competent authority or competent authorities;
(b) the infrastructure manager;
(c) the railway undertaking performing the public service contract;
(d) the railway undertaking seeking access.
4. Based on the experience of regulatory bodies, competent authorities and railway undertakings and based on the activities of the network referred to in Article 57(1), the Commission shall adopt by 16 December 2016 measures setting out the details of the procedure and criteria to be followed for the application of paragraphs 1, 2 and 3 of this Article. Those implementing acts shall be adopted in accordance with the examination procedure referred to in Article 62(3).
5. Member States may also limit the right to pick up and set down passengers at stations within the same Member State along the route of an international passenger service where an exclusive right to convey passengers between those stations has been granted under a concession contract awarded before 4 December 2007 on the basis of a fair competitive tendering procedure and in accordance with the relevant principles of Union law. Such a limitation may continue for the original duration of the contract, or 15 years, whichever is shorter.
6. Member States shall ensure that the decisions referred to in paragraphs 1, 2, 3 and 5 are subject to judicial review.
Article 12
Levy on railway undertakings providing passenger services
1. Without prejudice to Article 11(2), Member States may, under the conditions laid down in this Article, authorise the authority responsible for rail passenger transport to impose a levy on railway undertakings providing passenger services for the operation of routes which fall within the jurisdiction of that authority and which are operated between two stations in that Member State.
In that case, railway undertakings providing domestic or international rail passenger transport services shall be subject to the same levy on the operation of routes which fall within the jurisdiction of that authority.
2. The levy is intended to compensate the authority for public service obligations laid down in public service contracts awarded in accordance with Union law. The revenue raised from such a levy and paid as compensation shall not exceed what is necessary to cover all or part of the cost incurred in the relevant public service obligations taking into account the relevant receipts and a reasonable profit for discharging those obligations.
3. The levy shall be imposed in accordance with Union law, and shall respect in particular the principles of fairness, transparency, non-discrimination and proportionality, in particular between the average price of the service to the passenger and the level of the levy. The total levies imposed pursuant to this paragraph shall not endanger the economic viability of the rail passenger transport service on which they are imposed.
4. The relevant authorities shall keep the information necessary to ensure that the origin of the levies and their use can be traced. Member States shall provide the Commission with this information.
5. Based on the experience of regulatory bodies, competent authorities and railway undertakings and based on the activities of the network referred to in Article 57(1), the Commission shall adopt measures setting out the details of the procedure and criteria to be followed for the application of this Article. Those implementing acts shall be adopted in accordance with the examination procedure referred to in Article 62(3).
Article 13
Conditions of access to services
1. Infrastructure managers shall supply to all railway undertakings, in a non-discriminatory manner, the minimum access package laid down in point 1 of Annex II.
2. Operators of service facilities shall supply in a non-discriminatory manner to all railway undertakings access, including track access, to the facilities referred to in point 2 of Annex II, and to the services supplied in these facilities.
3. To guarantee full transparency and non-discrimination of access to the service facilities referred to in points 2(a), (b), (c), (d), (g) and (i) of Annex II, and the supply of services in these facilities where the operator of such a service facility is under direct or indirect control of a body or firm which is also active and holds a dominant position in national railway transport services markets for which the facility is used, the operators of these service facilities shall be organised in such a way that they are independent of this body or firm in organisational and decision-making terms. Such independence shall not imply the requirement of the establishment of a separate legal entity for service facilities and may be fulfilled with the organisation of distinct divisions within a single legal entity.
For all service facilities referred to in point 2 of Annex II, the operator and the body or firm shall have separate accounts, including separate balance sheets and profit and loss accounts.
Where operation of the service facility is ensured by an infrastructure manager or the operator of the service facility is under the direct or indirect control of an infrastructure manager compliance with the requirements set out in this paragraph shall be deemed to be demonstrated by the fulfilment of the requirements set out in Article 7.
4. Requests by railway undertakings for access to, and supply of services in the service facility referred to in point 2 of Annex II shall be answered within a reasonable time limit set by the regulatory body referred to in Article 55. Such requests may only be refused if there are viable alternatives allowing them to operate the freight or passenger service concerned on the same or alternative routes under economically acceptable conditions. This shall not oblige the operator of the service facility to make investments in resources or facilities in order to accommodate all requests by railway undertakings.
Where requests by railway undertakings concern access to, and supply of services in a service facility managed by an operator of the service facility referred to in paragraph 3, the operator of the service facility shall justify in writing any decision of refusal and indicate viable alternatives in other facilities. 5. Where an operator of the service facility referred to in point 2 of Annex II encounters conflicts between different requests, it shall attempt to meet all requests in so far as possible. If no viable alternative is available, and it is not possible to accommodate all requests for capacity for the relevant facility on the basis of demonstrated needs, the applicant may complain to the regulatory body referred to in Article 55 which shall examine the case and take action, where appropriate, to ensure that an appropriate part of the capacity is granted to that applicant.
6. Where a service facility referred to in point 2 of Annex II has not been in use for at least two consecutive years and interest by railway undertakings for access to this facility has been expressed to the operator of that service facility on the basis of demonstrated needs, its owner shall publicise the operation of the facility as being for lease or rent as a rail service facility, as a whole or in part, unless the operator of that service facility demonstrates that an ongoing process of reconversion prevents its use by any railway undertaking.
7. Where the operator of the service facility provides any of the services referred to in point 3 of Annex II as additional services, it shall supply them upon request to railway undertakings in a non-discriminatory manner.
8. Railway undertakings may request, as ancillary services, further services referred to in point 4 of Annex II from the infrastructure manager or from other operators of the service facility. The operator of the service facility is not obliged to supply these services. Where the operator of the service facility decides to offer to others any of these services, it shall supply them upon request to railway undertakings in a non-discriminatory manner.
9. Based on the experience of regulatory bodies and operators of service facilities and based on the activities of the network referred to in Article 57(1), the Commission may adopt measures setting out the details of the procedure and criteria to be followed for access to the services to be supplied in the service facilities referred to in points 2 to 4 of Annex II. Those implementing acts shall be adopted in accordance with the examination procedure referred to in Article 62(3).
SECTION 5 Cross-border agreements
Article 14
General principles for cross-border agreements
1. Member States shall ensure that the provisions contained in cross-border agreements do not discriminate between railway undertakings, or restrict the freedom of railway undertakings to operate cross-border services.
2. Member States shall notify the Commission of any cross-border agreement by 16 June 2013, for the agreements concluded before that date, and before their conclusion for new or revised agreements between Member States. The Commission shall decide whether such agreements are in compliance with Union law within nine months of notification for agreements concluded before 15 December 2012 and within four months of notification for new or revised agreements between Member States. Those implementing acts shall be adopted in accordance with the advisory procedure referred to in Article 62(2).
3. Without prejudice to the division of competence between the Union and the Member States, in accordance with Union law, Member States shall notify the Commission of their intention to enter into negotiations on, and to conclude, new or revised cross-border agreements between Member States and third countries.
4. If, within two months of the receipt of the notification of a Member State's intention to enter into the negotiations referred to in paragraph 2, the Commission concludes that the negotiations are likely to undermine the objectives of Union negotiations underway with the third countries concerned and/or to lead to an agreement which is incompatible with Union law, it shall inform the Member State accordingly.
Member States shall keep the Commission regularly informed of any such negotiations and, where appropriate, invite the Commission to participate as an observer.
5. Member States shall be authorised to provisionally apply and/or to conclude new or revised cross-border agreements with third countries, provided that they are compatible with Union law and do not harm the object and purpose of the transport policy of the Union. The Commission shall adopt such authorisation decisions. Those implementing acts shall be adopted in accordance with the advisory procedure referred to in Article 62(2).
SECTION 6 Monitoring tasks of the Commission
Article 15
Scope of market monitoring
1. The Commission shall make the necessary arrangements to monitor technical and economic conditions and market developments in Union rail transport.
2. In this context, the Commission shall closely involve representatives of the Member States, including representatives of the regulatory bodies referred to in Article 55, and representatives of the sectors concerned in its work, including, where appropriate, the railway sector’s social partners, users and representatives of local and regional authorities, so that they are better able to monitor the development of the railway sector and the evolution of the market, to assess the effect of the measures adopted and to analyse the impact of the measures planned by the Commission. Where appropriate, the Commission shall also involve the European Railway Agency, in accordance with its functions as provided for in Regulation (EC) No 881/2004 of the European Parliament and of the Council of 29 April 2004 establishing a European Railway Agency (Agency Regulation) (1).
3. The Commission shall monitor the use of the networks and the evolution of framework conditions in the rail sector, in particular infrastructure charging, capacity allocation, investments made in railway infrastructure, developments as regards prices and the quality of rail transport services, rail transport services covered by public service contracts, licensing and the degree of market opening and harmonisation between Member States, development of employment and the related social conditions in the rail sector. These monitoring activities are without prejudice to similar activities in Member States and to the role of social partners.
4. The Commission shall report every two years to the European Parliament and the Council on:
(a) the evolution of the internal market in rail services and services to be supplied to railway undertakings, as referred to in Annex II;
(b) the framework conditions referred to in paragraph 3, including for public passenger transport services by rail;
(c) the state of the Union railway network;
(d) the utilisation of access rights;
(e) barriers to more effective rail services;
(f) infrastructure limitations;
(g) the need for legislation.
5. For the purposes of market monitoring by the Commission, Member States shall, while respecting the role of the social partners, supply to the Commission on an annual basis the necessary information on the use of the networks and the evolution of framework conditions in the rail sector.
6. The Commission may adopt measures to ensure consistency in the reporting obligations of Member States. Those implementing acts shall be adopted in accordance with the examination procedure referred to in Article 62(3).
(1) OJ L 164, 30.4.2004, p. 1.
CHAPTER III
LICENSING OF RAILWAY UNDERTAKINGS
SECTION 1
Licensing authority
Article 16
Licensing authority
Each Member State shall designate a licensing authority that shall be responsible for issuing licences and for carrying out the obligations imposed by this Chapter.
The licensing authority shall not provide rail transport services itself and shall be independent of firms or entities that do so.
SECTION 2
Conditions for obtaining a licence
Article 17
General requirements
1. An undertaking shall be entitled to apply for a licence in the Member State in which it is established.
2. Member States shall not issue licences or extend their validity where the requirements of this Chapter are not complied with.
3. An undertaking which fulfils the requirements set out in this Chapter shall be authorised to receive a licence.
4. No undertaking shall be permitted to provide the rail transport services covered by this Chapter unless it has been granted the appropriate licence for the services to be provided.
However, such a licence shall not, in itself, entitle the holder to access the railway infrastructure.
5. The Commission shall adopt measures setting out the details for the use of a common template for the licence and, if needed to ensure fair and efficient competition in rail transport markets, details on the procedure to be followed for the application of this Article. Those implementing acts shall be adopted in accordance with the examination procedure referred to in Article 62(3).
Article 18
Conditions for obtaining a licence
An undertaking applying for a licence shall be required to be able to demonstrate to the licensing authorities of the Member State concerned before the start of its activities that it will at any time be able to meet the requirements relating to good repute, financial fitness, professional competence and cover for its civil liability as listed in Articles 19 to 22. For those purposes, each undertaking applying for a licence shall provide all relevant information.
**Article 19**
**Requirements relating to good repute**
Member States shall define the conditions under which the requirement of good repute is met to ensure that an undertaking applying for a licence or the persons in charge of its management:
(a) have not been convicted of serious criminal offences, including offences of a commercial nature;
(b) have not been declared bankrupt;
(c) have not been convicted of serious offences set out in specific legislation applicable to transport;
(d) have not been convicted of serious or repeated failure to fulfil social or labour law obligations, including obligations under occupational safety and health legislation, and customs law obligations in the case of a company seeking to operate cross-border freight transport subject to customs procedures.
**Article 20**
**Requirements relating to financial fitness**
1. The requirements relating to financial fitness shall be met when an undertaking applying for a licence can demonstrate that it will be able to meet its actual and potential obligations, established under realistic assumptions, for a period of 12 months.
2. The licensing authority shall verify financial fitness especially by means of a railway undertaking's annual accounts or, in the case of undertakings applying for a licence which are unable to present annual accounts, a balance sheet. Each undertaking applying for a licence shall provide at least the information listed in Annex III.
3. The licensing authority shall not consider an undertaking applying for a licence to be financially fit if considerable or recurrent arrears of taxes or social security are owed as a result of that undertaking's activity.
4. The licensing authority may require the submission of an audit report and suitable documents from a bank, public savings bank, accountant or auditor. Those documents shall include the information listed in Annex III.
5. The Commission shall be empowered to adopt delegated acts in accordance with Article 60 concerning certain amendments to Annex III. Thus, Annex III may be amended to specify the information to be provided by undertakings applying for a licence or supplemented in the light of the experience gained by licensing authorities or the evolution of the rail transport market.
**Article 21**
**Requirements relating to professional competence**
The requirements relating to professional competence shall be met when an undertaking applying for a licence can demonstrate that it has or will have a management organisation which possesses the knowledge or experience necessary to exercise safe and reliable operational control and supervision of the type of operations specified in the licence.
**Article 22**
**Requirements relating to cover for civil liability**
Without prejudice to Union rules on State aid and in accordance with Articles 93, 107 and 108 TFEU, a railway undertaking shall be adequately insured or have adequate guarantees under market conditions for cover, in accordance with national and international law, of its liabilities in the event of accidents, in particular in respect of passengers, luggage, freight, mail and third parties. Notwithstanding this obligation, the specificities and the risk-profile of different types of services, in particular of railway operations for cultural or heritage purposes, may be taken into account.
**SECTION 3**
**Validity of the licence**
**Article 23**
**Spatial and temporal validity**
1. A licence shall be valid throughout the territory of the Union.
2. A licence shall be valid as long as the railway undertaking fulfils the obligations laid down in this Chapter. A licensing authority may, however, make provision for a regular review. If so, the review shall be carried out at least every five years.
3. Specific provisions governing the suspension or revocation of a licence may be incorporated in the licence itself.
**Article 24**
**Temporary licence, approval, suspension and revocation**
1. If there is serious doubt that a railway undertaking which it has licensed complies with the requirements of this Chapter, and in particular those of Article 18, the licensing authority may, at any time, check whether that railway undertaking does in fact comply with those requirements.
Where a licensing authority is satisfied that a railway undertaking can no longer meet the requirements, it shall suspend or revoke the licence.
2. Where the licensing authority of a Member State is satisfied that there is serious doubt regarding compliance with the requirements laid down in this Chapter on the part of a railway undertaking to which a licence has been issued by the licensing authority of another Member State, it shall inform the latter authority without delay.
3. Notwithstanding paragraph 1, where a licence is suspended or revoked on grounds of non-compliance with the requirement for financial fitness, the licensing authority may grant a temporary licence pending the reorganisation of the railway undertaking, provided that safety is not jeopardised. A temporary licence shall not, however, be valid for more than six months after its date of issue.
4. Where a railway undertaking has ceased operations for six months or has not started operations within six months of the grant of a licence, the licensing authority may decide that the licence shall be required to be resubmitted for approval or be suspended.
As regards the start of activities, the railway undertaking may ask for a longer period to be fixed, taking account of the specific nature of the services to be provided.
5. In the event of a change affecting the legal situation of an undertaking and, in particular, in the event of a merger or takeover, the licensing authority may decide that the licence shall be resubmitted for approval. The railway undertaking in question may continue operations, unless the licensing authority decides that safety is jeopardised. In that event, the grounds for such a decision shall be given.
6. Where a railway undertaking intends to significantly change or extend its activities, its licence shall be resubmitted to the licensing authority for review.
7. A licensing authority shall not permit a railway undertaking against which bankruptcy or similar proceedings have commenced to retain its licence if that authority is convinced that there is no realistic prospect of satisfactory financial restructuring within a reasonable period of time.
8. Where a licensing authority issues, suspends, revokes or amends a licence, it shall immediately inform the European Railway Agency accordingly. The European Railway Agency shall inform the licensing authorities of other Member States forthwith.
Article 25
Procedure for granting licences
1. The procedures for granting licences shall be made public by the Member State concerned, which shall inform the Commission thereof.
2. The licensing authority shall take a decision on an application as soon as possible, but not more than three months after all relevant information, notably the particulars referred to in Annex III, has been submitted. The licensing authority shall take into account all the available information. The decision shall be communicated to the undertaking applying for a licence without delay. A refusal shall state the grounds on which it is based.
3. Member States shall ensure that the licensing authority's decisions are subject to judicial review.
CHAPTER IV
LEVYING OF CHARGES FOR THE USE OF RAILWAY INFRASTRUCTURE AND ALLOCATION OF RAILWAY INFRASTRUCTURE CAPACITY
SECTION 1
General principles
Article 26
Effective use of infrastructure capacity
Member States shall ensure that charging and capacity-allocation schemes for railway infrastructure follow the principles set down in this Directive and thus allow the infrastructure manager to market and make optimum effective use of the available infrastructure capacity.
Article 27
Network statement
1. The infrastructure manager shall, after consultation with the interested parties, develop and publish a network statement which shall be obtainable against payment of a fee which shall not exceed the cost of publication of that statement. The network statement shall be published in at least two official languages of the Union. The content of the network statement shall be made available free of charge in electronic format on the web portal of the infrastructure manager and accessible through a common web portal. That web portal shall be set up by the infrastructure managers in the framework of their cooperation in accordance with Articles 37 and 40.
2. The network statement shall set out the nature of the infrastructure which is available to railway undertakings, and contain information setting out the conditions for access to the relevant railway infrastructure. The network statement shall also contain information setting out the conditions for access to service facilities connected to the network of the infrastructure manager and for supply of services in these facilities or indicate a website where such information is made available free of charge in electronic format. The content of the network statement is laid down in Annex IV.
3. The network statement shall be kept up to date and amended as necessary.
4. The network statement shall be published no less than four months in advance of the deadline for requests for infrastructure capacity.
Article 28
Agreements between railway undertakings and infrastructure managers
Any railway undertaking engaged in rail transport services shall conclude the necessary agreements under public or private law with the infrastructure managers of the railway infrastructure used. The conditions governing such agreements shall be non-discriminatory and transparent, in accordance with this Directive. SECTION 2
Infrastructure and services charges
Article 29
Establishing, determining and collecting charges
1. Member States shall establish a charging framework while respecting the management independence laid down in Article 4.
Subject to that condition, Member States shall also establish specific charging rules or delegate such powers to the infrastructure manager.
Member States shall ensure that the network statement contains the charging framework and charging rules or indicates a website where the charging framework and charging rules are published.
The infrastructure manager shall determine and collect the charge for the use of infrastructure in accordance with the established charging framework and charging rules.
Without prejudice to the management independence laid down in Article 4 and provided that the right has been directly conferred by constitutional law before 15 December 2010, the national parliament may have the right to scrutinise and, where appropriate, review the level of charges determined by the infrastructure manager. Any such review shall ensure that charges comply with this Directive, the established charging framework and charging rules.
2. Except where specific arrangements are made under Article 32(3), infrastructure managers shall ensure that the charging scheme in use is based on the same principles over the whole of their network.
3. Infrastructure managers shall ensure that the application of the charging scheme results in equivalent and non-discriminatory charges for different railway undertakings that perform services of an equivalent nature in a similar part of the market and that the charges actually applied comply with the rules laid down in the network statement.
4. An infrastructure manager shall respect the commercial confidentiality of information provided to it by applicants.
Article 30
Infrastructure cost and accounts
1. Infrastructure managers shall, with due regard to safety and to maintaining and improving the quality of the infrastructure service, be given incentives to reduce the costs of providing infrastructure and the level of access charges.
2. Without prejudice to their competence regarding railway infrastructure planning and financing, and to the budgetary principle of annuality, where applicable, Member States shall ensure that a contractual agreement, fulfilling the basic principles and parameters set out in Annex V, is concluded between the competent authority and the infrastructure manager covering a period of not less than five years.
Member States shall ensure that contractual agreements in force on 15 December 2012 are modified, if necessary, to align them with this Directive upon their renewal, or at the latest by 16 June 2015.
3. Member States shall implement the incentives referred to in paragraph 1 through the contractual agreement referred to in paragraph 2 or through regulatory measures or through a combination of incentives to reduce costs in the contractual agreement and the level of charges through regulatory measures.
4. If a Member State decides to implement the incentives referred to in paragraph 1 through regulatory measures, this shall be based on an analysis of the achievable cost reductions. This shall be without prejudice to the powers of the regulatory body to review the charges referred to in Article 56.
5. The terms of the contractual agreement referred to in paragraph 2 and the structure of the payments agreed to provide funding to the infrastructure manager shall be agreed in advance to cover the whole of the contractual period.
6. Member States shall ensure that applicants and, upon their request, potential applicants are informed by the competent authority and the infrastructure manager and are given the opportunity to express their views on the content of the contractual agreement before it is signed. The contractual agreement shall be published within one month of concluding it.
The infrastructure manager shall ensure consistency between the provisions of the contractual agreement and the business plan.
7. Infrastructure managers shall develop and maintain a register of their assets and the assets they are responsible for managing which would be used to assess the financing needed to repair or replace them. This shall be accompanied by details of expenditure on renewal and upgrading of the infrastructure.
8. Infrastructure managers shall establish a method for apportioning costs to the different categories of services offered to railway undertakings. Member States may require prior approval. That method shall be updated from time to time on the basis of the best international practice.
Article 31
Principles of charging
1. Charges for the use of railway infrastructure and of service facilities shall be paid to the infrastructure manager and to the operator of service facility respectively and used to fund their business.
2. Member States shall require the infrastructure manager and the operator of service facility to provide the regulatory body with all necessary information on the charges imposed in order to allow the regulatory body to perform its functions as referred to in Article 56. The infrastructure manager and the operator of service facility shall, in this regard, be able to demonstrate to railway undertakings that infrastructure and service charges actually invoiced to the railway undertaking pursuant to Articles 30 to 37 comply with the methodology, rules and, where applicable, scales laid down in the network statement.
3. Without prejudice to paragraph 4 or 5 of this Article or to Article 32, the charges for the minimum access package and for access to infrastructure connecting service facilities shall be set at the cost that is directly incurred as a result of operating the train service.
Before 16 June 2015, the Commission shall adopt measures setting out the modalities for the calculation of the cost that is directly incurred as a result of operating the train. Those implementing acts shall be adopted in accordance with the examination procedure referred to in Article 62(3).
The infrastructure manager may decide to gradually adapt to those modalities during a period of no more than four years after the entry into force of those implementing acts.
4. The infrastructure charges referred to in paragraph 3 may include a charge which reflects the scarcity of capacity of the identifiable section of the infrastructure during periods of congestion.
5. The infrastructure charges referred to in paragraph 3 may be modified to take account of the cost of environmental effects caused by the operation of the train. Any such modification shall be differentiated according to the magnitude of the effect caused.
Based on the experience gained by infrastructure managers, railway undertakings, regulatory bodies and competent authorities, and recognising existing schemes on noise differentiation, the Commission shall adopt implementing measures setting out the modalities to be followed for the application of the charging for the cost of noise effects including its duration of application and enabling the differentiation of infrastructure charges to take into account, where appropriate, the sensitivity of the area affected, in particular in terms of the size of population affected and the train composition with an impact on the level of noise emissions. Those implementing acts shall be adopted in accordance with the examination procedure referred to in Article 62(3). They shall not result in the undue distortion of competition between railway undertakings or affect the overall competitiveness of the rail sector.
Any such modification of infrastructure charges to take account of the cost of noise effects shall support the retrofitting of wagons with the most economically viable low-noise braking technology available.
Charging of environmental costs which results in an increase in the overall revenue accruing to the infrastructure manager shall however be allowed only if such charging is applied to road freight transport in accordance with Union law.
If charging for environmental costs generates additional revenue, it shall be for Member States to decide how the revenue is to be used.
Member States shall ensure that the necessary information is kept and that the origin of the charging of environmental costs and its application can be traced. Member States shall provide the Commission with this information upon request.
06. To avoid undesirable disproportionate fluctuations, the charges referred to in paragraphs 3, 4 and 5 may be averaged over a reasonable spread of train services and times. Nevertheless, the relative magnitude of the infrastructure charge shall be related to the costs attributable to the services.
07. The charge imposed for track access within service facilities referred to in point 2 of Annex II, and the supply of services in such facilities, shall not exceed the cost of providing it, plus a reasonable profit.
08. Where services listed in points 3 and 4 of Annex II, as additional and ancillary services are offered by only one supplier, the charge imposed for such a service shall not exceed the cost of providing it, plus a reasonable profit.
09. Charges may be levied for capacity used for the purpose of infrastructure maintenance. Such charges shall not exceed the net revenue loss to the infrastructure manager caused by the maintenance.
10. The operator of the facility for supply of the services referred to in points 2, 3 and 4 of Annex II shall provide the infrastructure manager with the information on charges to be included in the network statement or shall indicate a website where such information is made available free of charge in electronic format in accordance with Article 27.
Article 32
Exceptions to charging principles
1. In order to obtain full recovery of the costs incurred by the infrastructure manager a Member State may, if the market can bear this, levy mark-ups on the basis of efficient, transparent and non-discriminatory principles, while guaranteeing optimal competitiveness of rail market segments. The charging system shall respect the productivity increases achieved by railway undertakings.
The level of charges shall not, however, exclude the use of infrastructure by market segments which can pay at least the cost that is directly incurred as a result of operating the railway service, plus a rate of return which the market can bear. Before approving the levy of such mark-ups, Member States shall ensure that the infrastructure managers evaluate their relevance for specific market segments, considering at least the pairs listed in point 1 of Annex VI and retaining the relevant ones. The list of market segments defined by infrastructure managers shall contain at least the three following segments: freight services, passenger services within the framework of a public service contract and other passenger services.
Infrastructure managers may further distinguish market segments according to commodity or passengers transported.
Market segments in which railway undertakings are not currently operating but may provide services during the period of validity of the charging system shall also be defined. The infrastructure manager shall not include a mark-up in the charging system for those market segments.
The list of market segments shall be published in the network statement and shall be reviewed at least every five years. The regulatory body referred to in Article 55 shall control that list in accordance with Article 56.
2. For the carriage of goods from and to third countries operated on a network whose track gauge is different from the main rail network within the Union, infrastructure managers may set higher charges in order to obtain full costs recovery of the costs incurred.
3. For specific future investment projects, or specific investment projects that have been completed after 1988, the infrastructure manager may set or continue to set higher charges on the basis of the long-term costs of such projects if they increase efficiency or cost-effectiveness or both and could not otherwise be or have been undertaken. Such a charging arrangement may also incorporate agreements on the sharing of the risk associated with new investments.
4. The infrastructure charges for the use of railway corridors which are specified in Commission Decision 2009/561/EC (1) shall be differentiated to give incentives to equip trains with the ETCS compliant with the version adopted by the Commission Decision 2008/386/EC (2) and successive versions. Such differentiation shall not result in any overall change in revenue for the infrastructure manager.
Notwithstanding this obligation, Member States may decide that this differentiation of infrastructure charges does not apply to railway lines specified in Decision 2009/561/EC on which only ETCS equipped trains may run.
Member States may decide to extend this differentiation to railway lines not specified in Decision 2009/561/EC.
Before 16 June 2015 and following an impact assessment, the Commission shall adopt measures setting out modalities to be followed in applying the differentiation of the infrastructure charge according to a time-frame consistent with the ERTMS European Deployment Plan established under Decision 2009/561/EC and ensuring that it does not result in any overall change in revenue for the infrastructure manager. Those implementing measures shall adapt the modalities of the differentiation applicable to trains operating local and regional services using a limited section of the railway corridors specified in Decision 2009/561/EC. Those implementing acts shall be adopted in accordance with the examination procedure referred to in Article 62(3). They shall not result in the undue distortion of competition between railway undertakings or affect the overall competitiveness of the rail sector.
5. To prevent discrimination, Member States shall ensure that any given infrastructure manager’s average and marginal charges for equivalent use of its infrastructure are comparable and that comparable services in the same market segment are subject to the same charges. The infrastructure manager shall show in the network statement that the charging system meets these requirements in so far as this can be done without disclosing confidential business information.
6. If an infrastructure manager intends to modify the essential elements of the charging system referred to in paragraph 1 of this Article, it shall make them public at least three months in advance of the deadline for the publication of the network statement according to Article 27(4).
Article 33
Discounts
1. Without prejudice to Articles 101, 102, 106 and 107 TFEU and notwithstanding the direct cost principle laid down in Article 31(3) of this Directive, any discount on the charges levied on a railway undertaking by the infrastructure manager, for any service, shall comply with the criteria set out in this Article.
2. With the exception of paragraph 3, discounts shall be limited to the actual saving of the administrative cost to the infrastructure manager. In determining the level of discount, no account may be taken of cost savings already internalised in the charge levied.
(1) Commission Decision 2009/561/EC of 22 July 2009 amending Decision 2006/679/EC as regards the implementation of the technical specification for interoperability relating to the control-command and signalling subsystem of the trans-European conventional rail system (OJ L 194, 25.7.2009, p. 60).
(2) Commission Decision 2008/386/EC of 23 April 2008 modifying Annex A to Decision 2006/679/EC concerning the technical specification for interoperability relating to the control-command and signalling subsystem of the trans-European conventional rail system and Annex A to Decision 2006/860/EC concerning the technical specification for interoperability relating to the control-command and signalling subsystem of the trans-European high-speed rail system (OJ L 136, 24.5.2008, p. 11). 3. Infrastructure managers may introduce schemes available to all users of the infrastructure, for specified traffic flows, granting time-limited discounts to encourage the development of new rail services, or discounts encouraging the use of considerably underutilised lines.
4. Discounts may relate only to charges levied for a specified infrastructure section.
5. Similar discount schemes shall apply for similar services. Discount schemes shall be applied in a non-discriminatory manner to any railway undertaking.
Article 34 Compensation schemes for unpaid environmental, accident and infrastructure costs
1. Member States may put in place a time-limited compensation scheme for the use of railway infrastructure for the demonstrably unpaid environmental, accident and infrastructure costs of competing transport modes in so far as these costs exceed the equivalent costs of rail.
2. Where a railway undertaking receiving compensation enjoys an exclusive right, the compensation shall be accompanied by comparable benefits to users.
3. The methodology used and calculations performed shall be publicly available. It shall in particular be possible to demonstrate the specific uncharged costs of the competing transport infrastructure that are avoided and to ensure that the scheme is granted on non-discriminatory terms to undertakings.
4. Member States shall ensure that the scheme is compatible with Articles 93, 107 and 108 TFEU.
Article 35 Performance scheme
1. Infrastructure charging schemes shall encourage railway undertakings and the infrastructure manager to minimise disruption and improve the performance of the railway network through a performance scheme. This scheme may include penalties for actions which disrupt the operation of the network, compensation for undertakings which suffer from disruption and bonuses that reward better-than-planned performance.
2. The basic principles of the performance scheme as listed in point 2 of Annex VI shall apply throughout the network.
3. The Commission shall be empowered to adopt delegated acts in accordance with Article 60 concerning amendments to point 2(c) of Annex VI. Thus point 2(c) of Annex VI, may be amended in the light of the evolution of the rail market and experience gained by regulatory bodies referred to in Article 55, infrastructure managers and railway undertakings. Such amendments shall adapt the classes of delay to the best practices developed by industry.
Article 36 Reservation charges
Infrastructure managers may levy an appropriate charge for capacity that is allocated but not used. That non-usage charge shall provide incentives for efficient use of capacity. The levy of such a charge on applicants that were allocated a train path shall be mandatory in the event of their regular failure to use allocated paths or part of them. For the imposition of this charge, the infrastructure managers shall publish in their network statement the criteria to determine such failure to use. The regulatory body referred to in Article 55 shall control such criteria in accordance with Article 56. Payments for this charge shall be made by either the applicant or the railway undertaking appointed in accordance with Article 41(1). The infrastructure manager shall always be able to inform any interested party of the infrastructure capacity which has already been allocated to user railway undertakings.
Article 37 Cooperation in relation to charging systems on more than one network
1. Member States shall ensure that infrastructure managers cooperate to enable the application of efficient charging schemes, and associate to coordinate the charging or to charge for the operation of train services which cross more than one infrastructure network of the rail system within the Union. Infrastructure managers shall, in particular, aim to guarantee the optimal competitiveness of international rail services and ensure the efficient use of the railway networks. To this end they shall establish appropriate procedures, subject to the rules set out in this Directive.
2. For the purpose of paragraph 1 of this Article, Member States shall ensure that infrastructure managers cooperate to enable mark-ups, as referred to in Article 32, and performance schemes, as referred to in Article 35, to be efficiently applied, for traffic crossing more than one network of the rail system within the Union.
SECTION 3 Allocation of infrastructure capacity
Article 38 Capacity rights
1. Infrastructure capacity shall be allocated by an infrastructure manager. Once allocated to an applicant, it shall not be transferred by the recipient to another undertaking or service. Any trading in infrastructure capacity shall be prohibited and shall lead to exclusion from the further allocation of capacity.
The use of capacity by a railway undertaking when carrying out the business of an applicant which is not a railway undertaking shall not be considered as a transfer.
2. The right to use specific infrastructure capacity in the form of a train path may be granted to applicants for a maximum duration of one working timetable period.
An infrastructure manager and an applicant may enter into a framework agreement as laid down in Article 42 for the use of capacity on the relevant railway infrastructure for a longer term than one working timetable period.
3. The respective rights and obligations of infrastructure managers and applicants in respect of any allocation of capacity shall be laid down in contracts or in Member States' legislation.
4. Where an applicant intends to request infrastructure capacity with a view to operating an international passenger service, it shall inform the infrastructure managers and the regulatory bodies concerned. In order to enable them to assess whether the purpose of the international service is to carry passengers on a route between stations located in different Member States, and what the potential economic impact on existing public service contracts is, regulatory bodies shall ensure that any competent authority that has awarded a rail passenger service on that route defined in a public service contract, any other interested competent authority with a right to limit access under Article 11 and any railway undertaking performing the public service contract on the route of that international passenger service is informed.
Article 39 Capacity allocation
1. Member States may lay down a framework for the allocation of infrastructure capacity subject to the condition of management independence laid down in Article 4. Specific capacity-allocation rules shall be laid down. The infrastructure manager shall perform the capacity-allocation processes. In particular, the infrastructure manager shall ensure that infrastructure capacity is allocated in a fair and non-discriminatory manner and in accordance with Union law.
2. Infrastructure managers shall respect the commercial confidentiality of information provided to them.
Article 40 Cooperation in the allocation of infrastructure capacity on more than one network
1. Member States shall ensure that infrastructure managers cooperate to enable the efficient creation and allocation of infrastructure capacity which crosses more than one network of the rail system within the Union, including under framework agreements referred to in Article 42. Infrastructure managers shall establish appropriate procedures, subject to the rules set out in this Directive, and organise train paths crossing more than one network accordingly.
Member States shall ensure that representatives of infrastructure managers whose allocation decisions have an impact on other infrastructure managers associate in order to coordinate the allocation of or to allocate all relevant infrastructure capacity at an international level, without prejudice to the specific rules contained in Union law on rail freight oriented networks. The principles and criteria for capacity allocation established under this cooperation shall be published by infrastructure managers in their network statement in accordance with paragraph 3 of Annex IV. Appropriate representatives of infrastructure managers from third countries may be associated with these procedures.
2. The Commission shall be informed of and invited to attend as an observer at the main meetings at which common principles and practices for the allocation of infrastructure are developed. Regulatory bodies shall receive sufficient information about the development of common principles and practices for the allocation of infrastructure and from IT-based allocation systems, to allow them to perform their regulatory supervision in accordance with Article 56.
3. At any meeting or other activity undertaken to permit the allocation of infrastructure capacity for trans-network train services, decisions shall only be taken by representatives of infrastructure managers.
4. The participants in the cooperation referred to paragraph 1 shall ensure that its membership, methods of operation and all relevant criteria which are used for assessing and allocating infrastructure capacity be made publicly available.
5. Working in cooperation, as referred to in paragraph 1, infrastructure managers shall assess the need for, and may where necessary propose and organise international train paths to facilitate the operation of freight trains which are subject to an ad hoc request as referred to in Article 48.
Such prearranged international train paths shall be made available to applicants through any of the participating infrastructure managers.
Article 41 Applicants
1. Requests for infrastructure capacity may be made by applicants. In order to use such infrastructure capacity, applicants shall appoint a railway undertaking to conclude an agreement with the infrastructure manager in accordance with Article 28. This is without prejudice to the right of applicants to conclude agreements with infrastructure managers under Article 44(1).
2. The infrastructure manager may set requirements with regard to applicants to ensure that its legitimate expectations about future revenues and utilisation of the infrastructure are safeguarded. Such requirements shall be appropriate, transparent and non-discriminatory. They shall be specified in the network statement as referred to in point 3(b) of Annex IV. They may only include the provision of a financial guarantee that shall not exceed an appropriate level which shall be proportional to the contemplated level of activity of the applicant, and assurance of the capability to prepare compliant bids for infrastructure capacity.
3. Before 16 June 2015, the Commission shall adopt implementing measures setting out the details of the criteria to be followed for the application of paragraph 2. Those implementing acts shall be adopted in accordance with the examination procedure referred to in Article 62(3).
Article 42 Framework agreements
1. Without prejudice to Articles 101, 102 and 106 TFEU, a framework agreement may be concluded between an infrastructure manager and an applicant. Such a framework agreement shall specify the characteristics of the infrastructure capacity required by and offered to the applicant over a period of time exceeding one working timetable period.
The framework agreement shall not specify a train path in detail, but shall be such as to meet the legitimate commercial needs of the applicant. A Member State may require prior approval of such a framework agreement by the regulatory body referred to in Article 55 of this Directive.
2. Framework agreements shall not be such as to preclude the use of the relevant infrastructure by other applicants or services.
3. Framework agreements shall allow for the amendment or limitation of its terms to enable better use to be made of the railway infrastructure.
4. Framework agreements may contain penalties should it be necessary to modify or terminate the agreement.
5. Framework agreements shall, in principle, cover a period of five years, renewable for periods equal to their original duration. The infrastructure manager may agree to a shorter or longer period in specific cases. Any period longer than five years shall be justified by the existence of commercial contracts, specialised investments or risks.
6. For services using specialised infrastructure referred to in Article 49 which requires substantial and long-term investment, duly justified by the applicant, framework agreements may be for a period of 15 years. Any period longer than 15 years shall be permissible only in exceptional cases, in particular where there is large-scale, long-term investment, and particularly where such investment is covered by contractual commitments including a multiannual amortisation plan.
In such exceptional cases, the framework agreement may set out the detailed characteristics of the capacity which is to be provided to the applicant for the duration of the framework agreement. Those characteristics may include the frequency, volume and quality of train paths. The infrastructure manager may reduce reserved capacity which, over a period of at least one month, has been used less than the threshold quota provided for in Article 52.
As from 1 January 2010, an initial framework agreement may be drawn up for a period of five years, renewable once, on the basis of the capacity characteristics used by applicants operating services before 1 January 2010, in order to take account of specialised investments or the existence of commercial contracts. The regulatory body referred to in Article 55 shall be responsible for authorising the entry into force of such an agreement.
7. While respecting commercial confidentiality, the general nature of each framework agreement shall be made available to any interested party.
8. Based on the experience of regulatory bodies, competent authorities and railway undertakings and based on the activities of the network referred to in Article 57(1), the Commission may adopt measures setting out the details of the procedure and criteria to be followed for the application of this Article. Those implementing acts shall be adopted in accordance with the examination procedure referred to in Article 62(3).
Article 43 Schedule for the allocation process
1. The infrastructure manager shall adhere to the schedule for capacity allocation set out in Annex VII.
2. The Commission shall be empowered to adopt delegated acts in accordance with Article 60 concerning certain amendments to Annex VII. Thus, after consultation of all infrastructure managers, Annex VII may be amended to take into account operational considerations of the allocation process. Those amendments shall be based on what is necessary in the light of experience in order to ensure an efficient allocation process and to reflect the operational concerns of the infrastructure managers.
3. Infrastructure managers shall agree with the other relevant infrastructure managers concerned which international train paths are to be included in the working timetable, before commencing consultation on the draft working timetable. Adjustments shall only be made if absolutely necessary.
Article 44 Applications
1. Applicants may apply under public or private law to the infrastructure manager to request an agreement granting rights to use railway infrastructure against a charge as provided for in Section 2 of Chapter IV.
2. Requests relating to the regular working timetable shall comply with the deadlines set out in Annex VII.
3. An applicant who is a party to a framework agreement shall apply in accordance with that agreement.
4. For train paths crossing more than one network, infrastructure managers shall ensure that applicants may apply to a one-stop shop that is either a joint body established by the infrastructure managers or one single infrastructure manager involved in the train path. That infrastructure manager shall be permitted to act on behalf of the applicant to seek capacity with other relevant infrastructure managers. This requirement is without prejudice to Regulation (EU) No 913/2010 of the European Parliament and of the Council of 22 September 2010 concerning a European rail network for competitive freight (1).
Article 45
Scheduling
1. The infrastructure manager shall, as far as possible, meet all requests for infrastructure capacity including requests for train paths crossing more than one network, and shall, as far as possible, take account of all constraints on applicants, including the economic effect on their business.
2. The infrastructure manager may give priority to specific services within the scheduling and coordination process but only as set out in Articles 47 and 49.
3. The infrastructure manager shall consult interested parties about the draft working timetable and allow them at least one month to present their views. Interested parties shall include all those who have requested infrastructure capacity and other parties who wish to have the opportunity to comment on how the working timetable may affect their ability to procure rail services during the working timetable period.
4. The infrastructure manager shall take appropriate measures to deal with any concerns that are expressed.
Article 46
Coordination process
1. During the scheduling process referred to in Article 45, where the infrastructure manager encounters conflicts between different requests, it shall attempt, through coordination of the requests, to ensure the best possible matching of all requirements.
2. Where a situation requiring coordination arises, the infrastructure manager shall have the right, within reasonable limits, to propose infrastructure capacity that differs from that which was requested.
3. The infrastructure manager shall attempt, through consultation with the appropriate applicants, to resolve any conflicts. Such consultation shall be based on the disclosure of the following information within a reasonable time, free of charge and in written or electronic form:
(a) train paths requested by all other applicants on the same routes;
(b) train paths allocated on a preliminary basis to all other applicants on the same routes;
(c) alternative train paths proposed on the relevant routes in accordance with paragraph 2;
(d) full details of the criteria being used in the capacity-allocation process.
In accordance with Article 39(2), that information shall be provided without disclosing the identity of other applicants, unless applicants concerned have agreed to such disclosure.
4. The principles governing the coordination process shall be set out in the network statement. These shall, in particular, reflect the difficulty of arranging international train paths and the effect that modification may have on other infrastructure managers.
5. Where requests for infrastructure capacity cannot be satisfied without coordination, the infrastructure manager shall attempt to accommodate all requests through coordination.
6. Without prejudice to the current appeal procedures and to Article 56, in the event of disputes relating to the allocation of infrastructure capacity, a dispute resolution system shall be made available in order to resolve such disputes promptly. This system shall be set out in the network statement. If this system is applied, a decision shall be reached within a time limit of 10 working days.
Article 47
Congested infrastructure
1. Where, after coordination of the requested train paths and consultation with applicants, it is not possible to satisfy requests for infrastructure capacity adequately, the infrastructure manager shall immediately declare that section of infrastructure on which this has occurred to be congested. This shall also be done for infrastructure which can be expected to suffer from insufficient capacity in the near future.
2. Where infrastructure has been declared to be congested, the infrastructure manager shall carry out a capacity analysis as provided for in Article 50, unless a capacity-enhancement plan, as provided for in Article 51, is already being implemented.
(1) OJ L 276, 20.10.2010, p. 22. 3. Where charges in accordance with Article 31(4) have not been levied or have not achieved a satisfactory result and the infrastructure has been declared to be congested, the infrastructure manager may, in addition, employ priority criteria to allocate infrastructure capacity.
4. The priority criteria shall take account of the importance of a service to society relative to any other service which will consequently be excluded.
In order to guarantee the development of adequate transport services within this framework, in particular to comply with public-service requirements or to promote the development of national and international rail freight, Member States may take any measures necessary, under non-discriminatory conditions, to ensure that such services are given priority when infrastructure capacity is allocated.
Member States may, where appropriate, grant the infrastructure manager compensation corresponding to any loss of revenue related to the need to allocate a given capacity to certain services pursuant to the second subparagraph.
Those measures and that compensation shall include taking account of the effect of this exclusion in other Member States.
5. The importance of freight services, and in particular international freight services, shall be given adequate consideration in determining priority criteria.
6. The procedures to be followed and the criteria to be used where infrastructure is congested shall be set out in the network statement.
Article 48
Ad hoc requests
1. The infrastructure manager shall respond to ad hoc requests for individual train paths as quickly as possible, and in any event within five working days. Information supplied on available spare capacity shall be made available to all applicants who may wish to use this capacity.
2. Infrastructure managers shall, where necessary, undertake an evaluation of the need for reserve capacity to be kept available within the final scheduled working timetable to enable them to respond rapidly to foreseeable ad hoc requests for capacity. This shall also apply in cases of congested infrastructure.
Article 49
Specialised infrastructure
1. Without prejudice to paragraph 2, infrastructure capacity shall be considered to be available for the use of all types of service which conform to the characteristics necessary for operation on the train path.
2. Where there are suitable alternative routes, the infrastructure manager may, after consultation with interested parties, designate particular infrastructure for use by specified types of traffic. Without prejudice to Articles 101, 102 and 106 TFEU, where such designation has occurred, the infrastructure manager may give priority to this type of traffic when allocating infrastructure capacity.
Such designation shall not prevent the use of such infrastructure by other types of traffic when capacity is available.
3. Where infrastructure has been designated pursuant to paragraph 2, this shall be described in the network statement.
Article 50
Capacity analysis
1. The objective of capacity analysis is to determine the constraints on infrastructure capacity which prevent requests for capacity from being adequately met, and to propose methods of enabling additional requests to be satisfied. The capacity analysis shall identify the reasons for the congestion and what measures might be taken in the short and medium term to ease the congestion.
2. The capacity analysis shall consider the infrastructure, the operating procedures, the nature of the different services operating and the effect of all these factors on infrastructure capacity. Measures to be considered shall include in particular rerouting services, retiming services, speed alterations and infrastructure improvements.
3. A capacity analysis shall be completed within six months of the identification of infrastructure as congested.
Article 51
Capacity-enhancement plan
1. Within six months of the completion of a capacity analysis, the infrastructure manager shall produce a capacity-enhancement plan.
2. A capacity-enhancement plan shall be developed after consultation with users of the relevant congested infrastructure.
It shall identify:
(a) the reasons for the congestion;
(b) the likely future development of traffic;
(c) the constraints on infrastructure development;
(d) the options and costs for capacity enhancement, including likely changes to access charges. On the basis of a cost benefit analysis of the possible measures identified, it shall also determine the action to be taken to enhance infrastructure capacity, including a timetable for implementing the measures.
The plan may be subject to prior approval by the Member State.
3. The infrastructure manager shall cease to levy any charges for the relevant infrastructure under Article 31(4) in cases where:
(a) it does not produce a capacity-enhancement plan; or
(b) it does not make progress with the actions identified in the capacity enhancement plan.
4. Notwithstanding paragraph 3 of this Article, the infrastructure manager may, subject to the approval of the regulatory body referred to in Article 55, continue to levy the charges if:
(a) the capacity-enhancement plan cannot be realised for reasons beyond its control; or
(b) the options available are not economically or financially viable.
Article 52
Use of train paths
1. In the network statement, the infrastructure manager shall specify conditions whereby it will take account of previous levels of utilisation of train paths in determining priorities for the allocation process.
2. For congested infrastructure in particular, the infrastructure manager shall require the surrender of a train path which, over a period of at least one month, has been used less than a threshold quota to be laid down in the network statement, unless this was due to non-economic reasons beyond the applicant's control.
Article 53
Infrastructure capacity for maintenance work
1. Requests for infrastructure capacity to enable maintenance work to be performed shall be submitted during the scheduling process.
2. Adequate account shall be taken by the infrastructure manager of the effect of infrastructure capacity reserved for scheduled track maintenance work on applicants.
3. The infrastructure manager shall inform, as soon as possible, interested parties about the unavailability of infrastructure capacity due to unscheduled maintenance work.
Article 54
Special measures to be taken in the event of disturbance
1. In the event of disturbance to train movements caused by technical failure or accident the infrastructure manager shall take all necessary steps to restore the situation to normal. To that end, it shall draw up a contingency plan listing the various bodies to be informed in the event of serious incidents or serious disturbance to train movements.
2. In an emergency and, where absolutely necessary, on account of a breakdown making the infrastructure temporarily unusable, the train paths allocated may be withdrawn without warning for as long as is necessary to repair the system.
The infrastructure manager may, if it deems this necessary, require railway undertakings to make available to it the resources which it feels are the most appropriate to restore the situation to normal as soon as possible.
3. Member States may require railway undertakings to be involved in assuring the enforcement and monitoring of their own compliance with the safety standards and rules.
SECTION 4
Regulatory body
Article 55
Regulatory body
1. Each Member State shall establish a single national regulatory body for the railway sector. Without prejudice to paragraph 2, this body shall be a stand-alone authority which is, in organisational, functional, hierarchical and decision-making terms, legally distinct and independent from any other public or private entity. It shall also be independent in its organisation, funding decisions, legal structure and decision-making from any infrastructure manager, charging body, allocation body or applicant. It shall furthermore be functionally independent from any competent authority involved in the award of a public service contract.
2. Member States may set up regulatory bodies which are competent for several regulated sectors, if these integrated regulatory authorities fulfil the independence requirements set out in paragraph 1 of this Article. The regulatory body for the rail sector may also be joined in organisational term with the national competition authority referred to in Article 11 of Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 101 and 102 of the Treaty (1), the safety authority established under Directive 2004/49/EC of the European Parliament and of the Council of 29 April 2004 on safety
(1) OJ L 1, 4.1.2003, p. 1.
Editorial note: The title of Council Regulation (EC) No 1/2003 has been adjusted to take account of the renumbering of the articles of the Treaty establishing the European Community, in accordance with Article 5 of the Treaty of Lisbon; the original reference was: Articles 81 and 82 of the Treaty. on the Community’s railways (1) or the licensing authority referred to in Chapter III of this Directive, if the joint body fulfils the independence requirements set out in paragraph 1 of this Article.
3. Member States shall ensure that the regulatory body is staffed and managed in a way that guarantees its independence. They shall, in particular, ensure that the persons in charge of decisions to be taken by the regulatory body in accordance with Article 56, such as members of its executive board, where relevant, be appointed under clear and transparent rules which guarantee their independence by the national cabinet or council of ministers or by any other public authority which does not directly exert ownership rights over regulated undertakings.
Member States shall decide whether these persons are appointed for a fixed and renewable term, or on a permanent basis which only allows dismissal for disciplinary reasons not related to their decision-making. They shall be selected in a transparent procedure on the basis of their merit, including appropriate competence and relevant experience, preferably in the field of railways or other network industries.
Member States shall ensure that these persons act independently from any market interest related to the railway sector, and shall therefore not have any interest or business relationship with any of the regulated undertakings or entities. To this effect, these persons shall make annually a declaration of commitment and a declaration of interests, indicating any direct or indirect interests that may be considered prejudicial to their independence and which might influence their performance of any function. These persons shall withdraw from decision-making in cases which concern an undertaking with which they had a direct or indirect connection during the year before the launch of a procedure.
They shall not seek or take instructions from any government or other public or private entity when carrying out the functions of the regulatory body, and have full authority over the recruitment and management of the staff of the regulatory body.
After their term in the regulatory body, they shall have no professional position or responsibility with any of the regulated undertakings or entities for a period of not less than one year.
Article 56
Functions of the regulatory body
1. Without prejudice to Article 46(6), an applicant shall have the right to appeal to the regulatory body if it believes that it has been unfairly treated, discriminated against or is in any other way aggrieved, and in particular against decisions adopted by the infrastructure manager or where appropriate the railway undertaking or the operator of a service facility concerning:
(a) the network statement in its provisional and final versions;
(b) the criteria set out in it;
(c) the allocation process and its result;
(d) the charging scheme;
(e) the level or structure of infrastructure charges which it is, or may be, required to pay;
(f) arrangements for access in accordance with Articles 10 to 13;
(g) access to and charging for services in accordance with Article 13.
2. Without prejudice to the powers of the national competition authorities for securing competition in the rail services markets, the regulatory body shall have the power to monitor the competitive situation in the rail services markets and shall, in particular, control points (a) to (g) of paragraph 1 on its own initiative and with a view to preventing discrimination against applicants. It shall, in particular, check whether the network statement contains discriminatory clauses or creates discretionary powers for the infrastructure manager that may be used to discriminate against applicants.
3. The regulatory body shall also cooperate closely with the national safety authority within the meaning of Directive 2008/57/EC of the European Parliament and of the Council of 17 June 2008 on the interoperability of the rail system within the Community (2), and the licensing authority within the meaning of this Directive.
Member States shall ensure that these authorities jointly develop a framework for information-sharing and cooperation aimed at preventing adverse effects on competition or safety in the railway market. This framework shall include a mechanism for the regulatory body to provide the national safety and licensing authorities with recommendations on issues that may affect competition in the railway market and for the national safety authority to provide the regulatory body and licensing authority with recommendations on issues that may affect safety. Without prejudice to the independence of each authority within the field of their respective competences, the relevant authority shall examine any such recommendation before adopting its decisions. If the relevant authority decides to deviate from these recommendations, it shall give reasons in its decisions.
(1) OJ L 164, 30.4.2004, p. 44.
(2) OJ L 191, 18.7.2008, p. 1. 4. Member States may decide that the regulatory body is given the task to adopt non-binding opinions on the provisional versions of the business plan referred to in Article 8(3), the contractual agreement and the capacity-enhancement plan to indicate in particular whether these instruments are consistent with the competitive situation in the rail services markets.
5. The regulatory body shall have the necessary organisational capacity in terms of human and material resources, which shall be proportionate to the importance of the rail sector in the Member State.
6. The regulatory body shall ensure that charges set by the infrastructure manager comply with Section 2 of Chapter IV and are non-discriminatory. Negotiations between applicants and an infrastructure manager concerning the level of infrastructure charges shall only be permitted if these are carried out under the supervision of the regulatory body. The regulatory body shall intervene if negotiations are likely to contravene the requirements of this Chapter.
7. The regulatory body shall, regularly and, in any case, at least every two years, consult representatives of users of the rail freight and passenger transport services, to take into account their views on the rail market.
8. The regulatory body shall have the power to request relevant information from the infrastructure manager, applicants and any third party involved within the Member State concerned.
Information requested shall be supplied within a reasonable period set by the regulatory body that shall not exceed one month, unless, in exceptional circumstances, the regulatory body agrees to, and authorises, a time-limited extension, which shall not exceed two additional weeks. The regulatory body shall be able to enforce such requests with appropriate penalties, including fines. Information to be supplied to the regulatory body includes all data which the regulatory body requires in the framework of its appeal function and in its function of monitoring the competition in the rail services markets in accordance with paragraph 2. This includes data which are necessary for statistical and market observation purposes.
9. The regulatory body shall consider any complaints and, as appropriate, shall ask for relevant information and initiate consultations with all relevant parties, within one month from the receipt of the complaint. It shall decide on any complaints, take action to remedy the situation and inform the relevant parties of its reasoned decision within a pre-determined, reasonable time, and, in any case, within six weeks from receipt of all relevant information. Without prejudice to the powers of the national competition authorities for securing competition in the rail service markets, the regulatory body shall, where appropriate, decide on its own initiative on appropriate measures to correct discrimination against applicants, market distortion and any other undesirable developments in these markets, in particular with reference to points (a) to (g) of paragraph 1.
A decision of the regulatory body shall be binding on all parties covered by that decision, and shall not be subject to the control of another administrative instance. The regulatory body shall be able to enforce its decisions with the appropriate penalties, including fines.
In the event of an appeal against a refusal to grant infrastructure capacity, or against the terms of an offer of capacity, the regulatory body shall either confirm that no modification of the infrastructure manager's decision is required, or it shall require modification of that decision in accordance with directions specified by the regulatory body.
10. Member States shall ensure that decisions taken by the regulatory body are subject to judicial review. The appeal may have suspensive effect on the decision of the regulatory body only when the immediate effect of the regulatory body's decision may cause irretrievable or manifestly excessive damages for the appellant. This provision is without prejudice to the powers of the court hearing the appeal as conferred by constitutional law, where applicable.
11. Member States shall ensure that decisions taken by the regulatory body are published.
12. The regulatory body shall have the power to carry out audits or initiate external audits with infrastructure managers, operators of service facilities and, where relevant, railway undertakings, to verify compliance with accounting separation provisions laid down in Article 6. In this respect, the regulatory body shall be entitled to request any relevant information. In particular the regulatory body shall have the power to request infrastructure manager, operators of service facilities and all undertakings or other entities performing or integrating different types of rail transport or infrastructure management as referred to in Article 6(1) and (2) and Article 13 to provide all or part of the accounting information listed in Annex VIII with a sufficient level of detail as deemed necessary and proportionate.
Without prejudice to the powers of the national authorities responsible for State aid issues, the regulatory body may also draw conclusions from the accounts concerning State aid issues which it shall report to those authorities.
13. The Commission shall be empowered to adopt delegated acts in accordance with Article 60 concerning certain amendments to Annex VIII. Thus, Annex VIII may be amended to adapt it to the evolution of accounting and control practices and/or to supplement it with additional elements necessary to verify separation of accounts. Article 57
Cooperation between regulatory bodies
1. The regulatory bodies shall exchange information about their work and decision-making principles and practice and, in particular, exchange information on the main issues of their procedures and on the problems of interpreting transposed Union railway law. They shall otherwise cooperate for the purpose of coordinating their decision-making across the Union. For this purpose, they shall participate and work together in a network that convenes at regular intervals. The Commission shall be a member, coordinate and support the work of the network and make recommendations to the network, as appropriate. It shall ensure active cooperation of the appropriate regulatory bodies.
Subject to the rules on data protection provided for in Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data (1) and Regulation (EC) No 45/2001 of the European Parliament and of the Council of 18 December 2000 on the protection of individuals with regard to the processing of personal data by the Community institutions and bodies and on the free movement of such data (2), the Commission shall support the exchange of the information referred above among the members of the network, possibly through electronic tools, respecting the confidentiality of business secrets supplied by the relevant undertakings.
2. The regulatory bodies shall cooperate closely, including through working arrangements, for the purposes of mutual assistance in their market monitoring tasks and handling complaints or investigations.
3. In the case of a complaint or an own-initiative investigation on issues of access or charging relating to an international train path, as well as in the framework of monitoring competition on the market related to international rail transport services, the regulatory body concerned shall consult the regulatory bodies of all other Member States through which the international train path concerned runs and, where appropriate, the Commission, and shall request all necessary information from them before taking its decision.
4. The regulatory bodies consulted in accordance with paragraph 3 shall provide all the information that they themselves have the right to request under their national law. This information may only be used for the purpose of handling the complaint or investigation referred to in paragraph 3.
5. The regulatory body receiving the complaint or conducting an investigation on its own initiative shall transfer relevant information to the regulatory body responsible in order for that body to take measures regarding the parties concerned.
6. Member States shall ensure that any associated representatives of infrastructure managers as referred to in Article 40(1) provide, without delay, all the information necessary for the purpose of handling the complaint or investigation referred to in paragraph 3 of this Article and requested by the regulatory body of the Member State in which the associated representative is located. That regulatory body shall be entitled to transfer such information regarding the international train path concerned to the regulatory bodies referred to in paragraph 3.
7. At the request of a regulatory body, the Commission may participate in the activities listed under paragraphs 2 to 6 for the purpose of facilitating the cooperation of regulatory bodies as outlined in those paragraphs.
8. Regulatory bodies shall develop common principles and practices for making the decisions for which they are empowered under this Directive. Based on the experience of regulatory bodies and on the activities of the network referred to in paragraph 1, and, if needed, to ensure efficient cooperation of regulatory bodies, the Commission may adopt measures setting out such common principles and practices. Those implementing acts shall be adopted in accordance with the examination procedure referred to in Article 62(3).
9. Regulatory bodies shall review decisions and practices of associations of infrastructure managers as referred to in Article 37 and Article 40(1) that implement provisions of this Directive or otherwise facilitate international rail transport.
CHAPTER V
FINAL PROVISIONS
Article 58
Public procurement rules
The provisions of this Directive shall be without prejudice to Directive 2004/17/EC of the European Parliament and of the Council of 31 March 2004 coordinating the procurement procedures of entities operating in the water, energy, transport and postal services sectors (3).
Article 59
Derogations
1. Until 15 March 2013, Ireland, as a Member State located on an island, with a rail link to only one other Member State, and the United Kingdom, in respect of Northern Ireland, on the same basis:
(a) do not need to entrust to an independent body the functions determining equitable and non-discriminatory access to infrastructure, as provided for in the first subparagraph of Article 7(1) in so far as that Article obliges Member States to establish independent bodies performing the tasks referred to in Article 7(2);
(1) OJ L 281, 21.11.1995, p. 31. (2) OJ L 8, 12.1.2001, p. 1. (3) OJ L 134, 30.4.2004, p. 1. (b) do not need to apply the requirements set out in Article 27, Article 29(2), Articles 38, 39 and 42, Article 46(4) and (6), Article 47, Article 49(3), and Articles 50 to 53, 55 and 56 on condition that decisions on the allocation of infrastructure capacity or the charging of fees are open to appeal, if so requested in writing by a railway undertaking, before an independent body which shall take its decision within two months of the submission of all relevant information and whose decision shall be subject to judicial review.
2. Where more than one railway undertaking licensed in accordance with Article 17, or, in the case of Ireland and Northern Ireland, a railway company so licensed elsewhere, submits an official application to operate competing railway services in, to or from Ireland or Northern Ireland, the continued applicability of this derogation shall be decided upon in accordance with the advisory procedure referred to in Article 62(2).
The derogations referred to in paragraph 1 shall not apply where a railway undertaking operating railway services in Ireland or Northern Ireland submits an official application to operate competing railway services in, to or from the territory of another Member State, with the exceptions of Ireland for railway undertakings operating in Northern Ireland and the United Kingdom for railway undertakings operating in Ireland.
Within one year from the receipt of either the decision referred to in the first subparagraph of this paragraph or notification of the official application referred to in the second subparagraph of this paragraph, the Member State or States concerned (Ireland or the United Kingdom with respect to Northern Ireland) shall put in place legislation to implement the Articles referred to in paragraph 1.
3. A derogation referred to in paragraph 1 may be renewed for periods not longer than five years. Not later than 12 months before the expiry date of the derogation a Member State availing itself of that derogation may address a request to the Commission for a renewed derogation. Any such request shall be justified. The Commission shall examine such a request and adopt a decision in accordance with the advisory procedure referred to in Article 62(2). That procedure shall apply to any decision related to the request.
When adopting its decision, the Commission shall take into account any development in the geopolitical situation and the development of the rail market in, from and to the Member State that requested the renewed derogation.
Article 60
Exercise of the delegation
1. The power to adopt delegated acts is conferred on the Commission subject to the conditions laid down in this Article.
2. The power to adopt delegated acts referred to in Article 20(5), Article 35(3), Article 43(2) and Article 56(13) shall be conferred on the Commission for a period of five years from 15 December 2012. The Commission shall draw up a report in respect of the delegation of power not later than nine months before the end of the five-year period. The delegation of power shall be tacitly extended for periods of an identical duration, unless the European Parliament or the Council opposes such extension not later than three months before the end of each period.
3. The delegation of powers referred to in Article 20(5), Article 35(3), Article 43(2) and Article 56(13) may be revoked at any time by the European Parliament or by the Council. A decision to revoke shall put an end to the delegation of the power specified in that decision. It shall take effect the day following the publication of the decision in the Official Journal of the European Union or at a later date specified therein. It shall not affect the validity of any delegated acts already in force.
4. As soon as it adopts a delegated act, the Commission shall notify it simultaneously to the European Parliament and to the Council.
5. A delegated act adopted pursuant to Article 20(5), Article 35(3), Article 43(2) and Article 56(13) shall enter into force only if no objection has been expressed either by the European Parliament or by the Council within a period of two months of notification of that act to the European Parliament and the Council or if, before the expiry of that period, the European Parliament and the Council have both informed the Commission that they will not object. That period shall be extended by two months at the initiative of the European Parliament or of the Council.
Article 61
Measures of application
At the request of a Member State, of a regulatory body or on its own initiative, the Commission shall examine specific measures adopted by national authorities in relation to the application of this Directive, concerning the conditions of access to railway infrastructure and services, the licensing of railway undertakings, infrastructure charging and capacity allocation within 12 months after adoption of those measures. The Commission shall decide in accordance with the procedure referred to in Article 62(2) whether the related measure may continue to be applied within four months of receipt of such a request.
Article 62
Committee procedure
1. The Commission shall be assisted by a committee. That committee shall be a committee within the meaning of Regulation (EU) No 182/2011.
2. Where reference is made to this paragraph, Article 4 of Regulation (EU) No 182/2011 shall apply.
3. Where reference is made to this paragraph, Article 5 of Regulation (EU) No 182/2011 shall apply. When the committee delivers no opinion on a draft implementing act to be adopted pursuant to Article 10(4), Article 11(4), Article 12(5), Article 13(9) and Article 17(5), Article 31(3) and (5), Article 32(4) and Article 57(8), the Commission shall not adopt the draft implementing act and the third subparagraph of Article 5(4) of Regulation (EU) No 182/2011 shall apply.
Article 63
Report
1. By 31 December 2012 at the latest, the Commission shall submit to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions a report on the implementation of Chapter II. This report shall also assess the development of the market, including the state of preparation of a further opening-up of the rail market. In its report the Commission shall also analyse the different models for organising this market and the impact of this Directive on public service contracts and their financing. In so doing, the Commission shall take into account the implementation of Regulation (EC) No 1370/2007 and the intrinsic differences between Member States (density of networks, number of passengers, average travel distance). The Commission shall, if appropriate, propose legislative measures in relation to the opening of the domestic rail passenger market and to develop appropriate conditions to ensure non-discriminatory access to the infrastructure, building on the existing separation requirements between infrastructure management and transport operations, and shall assess the impact of any such measures.
2. In light of the experience acquired through the network of regulatory bodies, the Commission shall, by 16 December 2014, submit to the European Parliament, the Council, the European Economic and Social Committee and the Committee of Regions a report on cooperation between regulatory bodies. The Commission shall, if appropriate, propose complementary measures to ensure a more integrated regulatory oversight of the European rail market, in particular for international services. To that end, legislative measures shall also be considered, if appropriate.
Article 64
Transposition
1. Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive including as regards compliance by undertakings, operators, applicants, authorities and other entities concerned by 16 June 2015. They shall forthwith communicate to the Commission the text of those provisions.
When Member States adopt those provisions, they shall contain a reference to this Directive or be accompanied by such a reference on the occasion of their official publication. They shall also include a statement that references in existing laws, regulations and administrative provisions to the Directives repealed by this Directive shall be construed as references to this Directive. Member States shall determine how such reference is to be made and how that statement is to be formulated.
2. Member States shall communicate to the Commission the text of the main provisions of national law which they adopt in the field covered by this Directive.
The obligations for transposition and implementation of Chapters II and IV of this Directive shall not apply to Cyprus and Malta for as long as no railway system is established within their territory.
Article 65
Repeal
Directives 91/440/EEC, 95/18/EC and 2001/14/EC, as amended by the Directives listed in Annex IX, Part A, are repealed with effect from 15 December 2012, 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 Part B of Annex IX.
References to the repealed Directives shall be construed as references to this Directive and shall be read in accordance with the correlation table in Annex X.
Article 66
Entry into force
This Directive shall enter into force on the day following that of its publication in the Official Journal of the European Union.
Article 67
Addressees
This Directive is addressed to the Member States.
Done at Strasbourg, 21 November 2012.
For the European Parliament The President M. SCHULZ
For the Council The President A. D. MAVROYIANNIS ANNEX I
LIST OF RAILWAY INFRASTRUCTURE ITEMS
Railway infrastructure consists of the following items, provided they form part of the permanent way, including sidings, but excluding lines situated within railway repair workshops, depots or locomotive sheds, and private branch lines or sidings:
— Ground area, — Track and track bed, in particular embankments, cuttings, drainage channels and trenches, masonry trenches, culverts, lining walls, planting for protecting side slopes, etc.; passenger and goods platforms, including in passenger stations and freight terminals; four-foot way and walkways; enclosure walls, hedges, fencing; fire protection strips; apparatus for heating points; crossings etc.; snow protection screens, — Engineering structures: bridges, culverts and other overpasses, tunnels, covered cuttings and other underpasses; retaining walls, structures for protection against avalanches, falling stones, etc., — Level crossings, including appliances to ensure the safety of road traffic, — Superstructure, in particular: rails, grooved rails and check rails; sleepers and longitudinal ties, small fittings for the permanent way, ballast including stone chippings and sand; points, crossings, etc.; turntables and traverses (except those reserved exclusively for locomotives), — Access way for passengers and goods, including access by road and access for passengers arriving or departing on foot, — Safety, signalling and telecommunications installations on the open track, in stations and in marshalling yards, including plant for generating, transforming and distributing electric current for signalling and telecommunications; buildings for such installations or plant; track brakes, — Lighting installations for traffic and safety purposes, — Plant for transforming and carrying electric power for train haulage: substations, supply cables between substations and contact wires, catenaries and supports; third rail with supports, — Buildings used by the infrastructure department, including a proportion of installations for the collection of transport charges. ANNEX II
SERVICES TO BE SUPPLIED TO THE RAILWAY UNDERTAKINGS (referred to in Article 13)
1. The minimum access package shall comprise: (a) handling of requests for railway infrastructure capacity; (b) the right to utilise capacity which is granted; (c) use of the railway infrastructure, including track points and junctions; (d) train control including signalling, regulation, dispatching and the communication and provision of information on train movement; (e) use of electrical supply equipment for traction current, where available; (f) all other information required to implement or operate the service for which capacity has been granted.
2. Access, including track access, shall be given to the following services facilities, when they exist, and to the services supplied in these facilities: (a) passenger stations, their buildings and other facilities, including travel information display and suitable location for ticketing services; (b) freight terminals; (c) marshalling yards and train formation facilities, including shunting facilities; (d) storage sidings; (e) maintenance facilities, with the exception of heavy maintenance facilities dedicated to high-speed trains or to other types of rolling stock requiring specific facilities; (f) other technical facilities, including cleaning and washing facilities; (g) maritime and inland port facilities which are linked to rail activities; (h) relief facilities; (i) refuelling facilities and supply of fuel in these facilities, charges for which shall be shown on the invoices separately.
3. Additional services may comprise: (a) traction current, charges for which shall be shown on the invoices separately from charges for using the electrical supply equipment, without prejudice to the application of Directive 2009/72/EC; (b) pre-heating of passenger trains; (c) tailor-made contracts for: — control of transport of dangerous goods, — assistance in running abnormal trains.
4. Ancillary services may comprise: (a) access to telecommunication networks; (b) provision of supplementary information; (c) technical inspection of rolling stock; (d) ticketing services in passenger stations; (e) heavy maintenance services supplied in maintenance facilities dedicated to high-speed trains or to other types of rolling stock requiring specific facilities. ANNEX III
FINANCIAL FITNESS (referred to in Article 20)
The information to be provided by undertakings applying for a licence in accordance with Article 20 covers the following aspects:
(a) available funds, including the bank balance, pledged overdraft provisions and loans;
(b) funds and assets available as security;
(c) working capital;
(d) relevant costs, including purchase costs of payments to account for vehicles, land, buildings, installations and rolling stock;
(e) charges on an undertaking’s assets;
(f) taxes and social security contributions. ANNEX IV
CONTENTS OF THE NETWORK STATEMENT (referred to in Article 27)
The network statement referred to in Article 27 shall contain the following information:
1. A section setting out the nature of the infrastructure which is available to railway undertakings and the conditions of access to it. The information in this section shall be made consistent, on an annual basis with, or shall refer to, the rail infrastructure registers to be published in accordance with Article 35 of Directive 2008/57/EC.
2. A section on charging principles and tariffs. This shall contain appropriate details of the charging scheme as well as sufficient information on charges as well as other relevant information on access applying to the services listed in Annex II which are provided by only one supplier. It shall detail the methodology, rules and, where applicable, scales used for the application of Articles 31 to 36, as regards both costs and charges. It shall contain information on changes in charges already decided upon or foreseen in the next five years, if available.
3. A section on the principles and criteria for capacity allocation. This shall set out the general capacity characteristics of the infrastructure which is available to railway undertakings and any restrictions relating to its use, including likely capacity requirements for maintenance. It shall also specify the procedures and deadlines which relate to the capacity-allocation process. It shall contain specific criteria which are employed during that process, in particular: (a) the procedures according to which applicants may request capacity from the infrastructure manager; (b) the requirements governing applicants; (c) the schedule for the application and allocation processes and the procedures which shall be followed to request information on the scheduling and the procedures for scheduling planned and unforeseen maintenance work; (d) the principles governing the coordination process and the dispute resolution system made available as part of this process; (e) the procedures which shall be followed and criteria used where infrastructure is congested; (f) details of restrictions on the use of infrastructure; (g) conditions by which account is taken of previous levels of utilisation of capacity in determining priorities for the allocation process.
It shall detail the measures taken to ensure adequate treatment of freight services, international services and requests subject to the ad hoc procedure. It shall contain a template form for capacity requests. The infrastructure manager shall also publish detailed information about the allocation procedures for international train paths.
4. A section on information relating to the application for a licence referred to in Article 25 of this Directive and rail safety certificates issued in accordance with Directive 2004/49/EC or indicating a website where such information is made available free of charge in electronic format.
5. A section on information about procedures for dispute resolution and appeal relating to matters of access to rail infrastructure and services and to the performance scheme referred to in Article 35.
6. A section on information on access to and charging for service facilities referred to in Annex II. Operators of service facilities which are not controlled by the infrastructure manager shall supply information on charges for gaining access to the facility and for the provision of services, and information on technical access conditions for inclusion in the network statement or shall indicate a website where such information is made available free of charge in electronic format.
7. A model agreement for the conclusion of framework agreements between an infrastructure manager and an applicant in accordance with Article 42. ANNEX V
BASIC PRINCIPLES AND PARAMETERS OF CONTRACTUAL AGREEMENTS BETWEEN COMPETENT AUTHORITIES AND INFRASTRUCTURE MANAGERS
(referred to in Article 30)
The contractual agreement shall specify the provisions of Article 30 and include at least the following elements:
(1) the scope of the agreement as regards infrastructure and service facilities, structured in accordance with Annex II. It shall cover all aspects of infrastructure management, including maintenance and renewal of the infrastructure already in operation. Where appropriate, construction of new infrastructure may also be covered;
(2) the structure of payments or funds allocated to the infrastructure services listed in Annex II, to maintenance and renewal and to dealing with existing maintenance and renewal backlogs. Where appropriate, the structure of payments or funds allocated to new infrastructure may be covered;
(3) user-oriented performance targets, in the form of indicators and quality criteria covering elements such as: (a) train performance, such as in terms of line speed and reliability, and customer satisfaction, (b) network capacity, (c) asset management, (d) activity volumes, (e) safety levels, and (f) environmental protection;
(4) the amount of possible maintenance backlog and the assets which will be phased out of use and therefore trigger different financial flows;
(5) the incentives referred to in Article 30(1), with the exception of those incentives implemented through regulatory measures in accordance with Article 30(3);
(6) minimum reporting obligations for the infrastructure manager in terms of content and frequency of reporting, including information to be published annually;
(7) the agreed duration of the agreement, which shall be synchronised and consistent with the duration of the infrastructure manager's business plan, concession or licence, where appropriate, and the charging framework and rules set by the State;
(8) rules for dealing with major disruptions of operations and emergency situations, including contingency plans and early termination of the contractual agreement, and timely information to users;
(9) remedial measures to be taken if either of the parties is in breach of its contractual obligations, or in exceptional circumstances affecting the availability of public funding; this includes conditions and procedures for renegotiation and early termination. ANNEX VI
REQUIREMENTS FOR COSTS AND CHARGES RELATED TO RAILWAY INFRASTRUCTURE (referred to in Article 32(1) and Article 35)
1. The pairs to be considered by infrastructure managers when they define a list of market segments with a view to introducing mark-ups in the charging system according to Article 32(1) include at least the following:
(a) passenger versus freight services; (b) trains carrying dangerous goods versus other freight trains; (c) domestic versus international services; (d) combined transport versus direct trains; (e) urban or regional versus interurban passenger services; (f) block trains versus single wagon load trains; (g) regular versus occasional train services.
2. The performance scheme as referred to in Article 35 shall be based on the following basic principles:
(a) In order to achieve an agreed level of performance and not to endanger the economic viability of a service, the infrastructure manager shall agree with applicants the main parameters of the performance scheme, in particular the value of delays, the thresholds for payments due under the performance scheme relative both to individual train runs and to all train runs of a railway undertaking in a given period of time;
(b) The infrastructure manager shall communicate to the railway undertakings the working timetable, on the basis of which delays will be calculated, at least five days before the train run. The infrastructure manager may apply a shorter notice period in case of force majeure or late alterations of the working timetable;
(c) All delays shall be attributable to one of the following delay classes and sub-classes:
1. Operation/planning management attributable to the infrastructure manager 1.1. Timetable compilation 1.2. Formation of train 1.3. Mistakes in operations procedure 1.4. Wrong application of priority rules 1.5. Staff 1.6. Other causes
2. Infrastructure installations attributable to the infrastructure manager 2.1. Signalling installations 2.2. Signalling installations at level crossings 2.3. Telecommunications installations 2.4. Power supply equipment 2.5. Track 2.6. Structures 2.7. Staff 2.8. Other causes
3. Civil engineering causes attributable to the infrastructure manager 3.1. Planned construction work 3.2. Irregularities in execution of construction work 3.3. Speed restriction due to defective track 3.4. Other causes
4. Causes attributable to other infrastructure managers 4.1. Caused by previous infrastructure manager 4.2. Caused by next infrastructure manager
5. Commercial causes attributable to the railway undertaking 5.1. Exceeding the stop time 5.2. Request of the railway undertaking 5.3. Loading operations 5.4. Loading irregularities 5.5. Commercial preparation of train 5.6. Staff 5.7. Other causes
6. Rolling stock attributable to the railway undertaking 6.1. Roster planning/rerostering 6.2. Formation of train by railway undertaking 6.3. Problems affecting coaches (passenger transport) 6.4. Problems affecting wagons (freight transport) 6.5. Problems affecting cars, locomotives and rail cars 6.6. Staff 6.7. Other causes
7. Causes attributable to other railway undertakings 7.1. Caused by next railway undertaking 7.2. Caused by previous railway undertaking
8. External causes attributable to neither infrastructure manager nor railway undertaking 8.1. Strike 8.2. Administrative formalities 8.3. Outside influence 8.4. Effects of weather and natural causes 8.5. Delay due to external reasons on the next network 8.6. Other causes
9. Secondary causes attributable to neither infrastructure manager nor railway undertaking 9.1. Dangerous incidents, accidents and hazards 9.2. Track occupation caused by the lateness of the same train
9.3. Track occupation caused by the lateness of another train
9.4. Turn-around
9.5. Connection
9.6. Further investigation needed;
(d) Wherever possible, delays shall be attributed to a single organisation, considering both the responsibility for causing the disruption and the ability to re-establish normal traffic conditions;
(e) The calculation of payments shall take into account the average delay of train services of similar punctuality requirements;
(f) The infrastructure manager shall, as soon as possible, communicate to the railway undertakings a calculation of payments due under the performance scheme. This calculation shall encompass all delayed train runs within a period of at most one month;
(g) Without prejudice to the existing appeal procedures and to the provisions of Article 56, in the case of disputes relating to the performance scheme, a dispute resolution system shall be made available in order to settle such matters promptly. This dispute resolution system shall be impartial towards the parties involved. If this system is applied, a decision shall be reached within a time limit of 10 working days;
(h) Once a year, the infrastructure manager shall publish the annual average level of performance achieved by the railway undertakings on the basis of the main parameters agreed in the performance scheme. ANNEX VII
SCHEDULE FOR THE ALLOCATION PROCESS (referred to in Article 43)
1. The working timetable shall be established once per calendar year.
2. The change of working timetable shall take place at midnight on the second Saturday in December. Where a change or adjustment is carried out after the winter, in particular to take account, where appropriate, of changes in regional passenger traffic timetables, it shall take place at midnight on the second Saturday in June and at such other intervals between these dates as are required. Infrastructure managers may agree on different dates and in this case they shall inform the Commission if international traffic may be affected.
3. The final date for receipt of requests for capacity to be incorporated into the working timetable shall be no more than 12 months in advance of the entry into force of the working timetable.
4. No later than 11 months before the working timetable comes into force, the infrastructure managers shall ensure that provisional international train paths have been established in cooperation with other relevant infrastructure managers. Infrastructure managers shall ensure that as far as possible these are adhered to during the subsequent processes.
5. No later than four months after the deadline for submission of bids by applicants, the infrastructure manager shall prepare a draft working timetable. ANNEX VIII
ACCOUNTING INFORMATION TO BE SUPPLIED TO THE REGULATORY BODY UPON REQUEST (referred to in Article 56(12))
1. Account separation
(a) separate profit and loss accounts and balance sheets for freight, passenger and infrastructure management activities;
(b) detailed information on individual sources and uses of public funds and other forms of compensation in a transparent and detailed manner, including a detailed review of the businesses’ cash flows in order to determine in what way these public funds and other forms of compensation have been used;
(c) cost and profit categories making it possible to determine whether cross-subsidies between these different activities occurred, according to the requirements of the regulatory body;
(d) methodology used to allocate costs between different activities;
(e) where the regulated firm is part of a group structure, full details of inter-company payments.
2. Monitoring of track access charges
(a) different cost categories, in particular providing sufficient information on marginal/direct costs of the different services or groups of services so that infrastructure charges can be monitored;
(b) sufficient information to allow monitoring of the individual charges paid for services (or groups of services); if required by the regulatory body, this information shall contain data on volumes of individual services, prices for individual services and total revenues for individual services paid by internal and external customers;
(c) costs and revenues for individual services (or groups of services) using the relevant cost methodology, as required by the regulatory body, to identify potentially anti-competitive pricing (cross-subsidies, predatory pricing and excessive pricing).
3. Indication of financial performance
(a) a statement of financial performance;
(b) a summary expenditure statement;
(c) a maintenance expenditure statement;
(d) an operating expenditure statement;
(e) an income statement;
(f) supporting notes that amplify and explain the statements, where appropriate. ANNEX IX
PART A
REPEALED DIRECTIVES WITH LIST OF SUCCESSIVE AMENDMENTS (referred to in Article 65)
Council Directive 91/440/EEC (OJ L 237, 24.8.1991, p. 25)
Directive 2001/12/EC of the European Parliament and of the Council (OJ L 75, 15.3.2001, p. 1)
Directive 2004/51/EC of the European Parliament and of the Council (OJ L 164, 30.4.2004, p. 164)
Council Directive 2006/103/EC (OJ L 363, 20.12.2006, p. 344) only Point B of the Annex
Directive 2007/58/EC of the European Parliament and of the Council (OJ L 315, 3.12.2007, p. 44) only Article 1
Council Directive 95/18/EC (OJ L 143, 27.6.1995, p. 70)
Directive 2001/13/EC of the European Parliament and of the Council (OJ L 75, 15.3.2001, p. 26)
Directive 2004/49/EC of the European Parliament and of the Council (OJ L 164, 30.4.2004, p. 44) only Article 29
Directive 2001/14/EC of the European Parliament and of the Council (OJ L 75, 15.3.2001, p. 29)
Commission Decision 2002/844/EC (OJ L 289, 26.10.2002, p. 30)
Directive 2004/49/EC of the European Parliament and of the Council (OJ L 164, 30.4.2004, p. 44) only Article 30
Directive 2007/58/EC of the European Parliament and of the Council (OJ L 315, 3.12.2007, p. 44) only Article 2
PART B
LIST OF TIME LIMITS FOR TRANPOSITION INTO NATIONAL LAW (referred to in Article 65)
| Directive | Time limit for transposition | |-----------------|------------------------------| | 91/440/EEC | 1 January 1993 | | 95/18/EC | 27 June 1997 | | 2001/12/EC | 15 March 2003 | | 2001/13/EC | 15 March 2003 | | 2001/14/EC | 15 March 2003 | | 2004/49/EC | 30 April 2006 | | 2004/51/EC | 31 December 2005 | | 2006/103/EC | 1 January 2007 | | 2007/58/EC | 4 June 2009 |
## ANNEX X
### CORRELATION TABLE
| Directive 91/440/EEC | Directive 95/18/EC | Directive 2001/14/EC | This Directive | |----------------------|-------------------|----------------------|----------------| | Article 2(1) | Article 1(1) | Article 1(1), first | Article 1(1) | | | | subparagraph | | | Article 2(2) | Article 1(2) | Article 1(2) | | | Article 1(2) | | Article 2(1) | | | Article 1(2) | | Article 2(2) | | | Article 1(3) | | Article 2(3) | | | Article 2(4) to (9) | | Article 2(4) to (9) | | | Article 2(4) | | Article 2(10) | | | Article 2(11) | | Article 2(11) | | | Article 3 | Article 3(1) to (8)| Article 3(9) to (13) | | | Article 2(b) and (c) | | Article 3(14) and (15)| | | Article 2 | Article 2(18) to (28)| Article 3(16) and (17)| | | Article 2 | Article 2(18) to (28)| Article 3(29) and (30)| | | Article 4 | Article 4 | Article 4 | | | Article 5 | Article 5(1) to (3)| Article 5(4) | | | Article 6(1) and (2) | Article 6(1) and (2)| Article 6(3) | | | Article 9(4) | Article 6(3) | Article 6(4) | | | Article 6(1) second | Article 6(4) | Article 6(4) | | | subparagraph | | Article 7(1) | | | Article 6(3) and Annex II | Article 4(2) and Article 14(2)| Article 7(2) | | | Directive 91/440/EEC | Directive 95/18/EC | Directive 2001/14/EC | This Directive | |----------------------|---------------------|----------------------|----------------| | Article 7(1), (3) and (4) | Article 6(1) | Article 8(1), (2) and (3) | | Article 9(1) and (2) | Article 9(1) and (2) | | Article 10(3) and (3a) | Article 10(1) and (2) | | Article 10(3b) | Article 11(1), (2) and (3) | | Article 10(3c) and (3e) | Article 11(4) | | Article 10(3f) | Article 11(5) and (6) | | Article 10b | Article 12(1) to (4) | | Article 3 | Article 12(5) | | Article 4(1) to (4) | Article 13 | | Article 5 | Article 14 | | Article 6 | Article 15 | | Article 7(1) | Article 16 | | Annex, Part I, point (1) | Article 17(1) to (4) | | Article 8 | Article 18 | | Article 9 | Article 19 | | Article 10 | Article 20(1) | | Article 11 | Article 20(2) | | Article 15 | Article 20(3) | | Article 10(5) | Article 21 | | Article 10(5) | Article 22 | | Article 4(5) | Article 23(1) | | Article 10 | Article 23(2) and (3) | | Article 11 | Article 24 | | Article 15 | Article 25 | | Article 1(1), second subparagraph | Article 26 | | Article 3 | Article 27 | | Article 10(5) | Article 28 | | Directive 91/440/EEC | Directive 95/18/EC | Directive 2001/14/EC | This Directive | |----------------------|---------------------|----------------------|----------------| | Article 4(1) and (3) to (6) | Article 29 | | Article 6(2) to (5) | Article 30 | | Article 7 | Article 31 | | Article 8 | Article 32 | | Article 9 | Article 33 | | Article 10 | Article 34 | | Article 11 | Article 35 | | Article 12 | Article 36 | | Article 13 | Article 37 | | Article 14(1) and (3) | Article 38 | | Article 15 | Article 39 | | Article 16 | Article 40 | | Article 17 | Article 41 | | Article 18 | Article 42 | | Article 19 | Article 43 | | Article 20(1), (2) and (3) | Article 44 | | Article 21 | Article 45(1), (2) and (3) | | Article 22 | Article 45(4) | | Article 23 | Article 45(5) | | Article 24 | Article 46 | | Article 25 | Article 47 | | Article 26 | Article 48 | | Article 27 | Article 49 | | Article 28 | Article 50 | | Directive 91/440/EEC | Directive 95/18/EC | Directive 2001/14/EC | This Directive | |----------------------|---------------------|----------------------|----------------| | Article 26 | Article 51 | | | | Article 27 | Article 52 | | | | Article 28 | Article 53 | | | | Article 29 | Article 54 | | | | Article 30(1) | Article 55 | | | | Article 30(2) | Article 56(1) | | | | Article 31 | Article 57 | | | | Article 12 | Article 58 | | | | Article 14a | Article 33(1), (2) and (3) | Article 59 | | | Article 11a | Article 34(2) | Article 60 | | | Article 10(9) | Article 35(1), (2) and (3) | Article 61 | | | Article 17 | Article 38 | Article 62 | | | Article 16 | Article 39 | Article 63 | | | Article 18 | Article 40 | Article 64 | | | Annex | Article 38 | Article 65 | | | Annex I | Article 39 | Article 66 | | | Annex II | Article 40 | Article 67 | | | Annex III | Annex I | Annex I | | | Annex IV | Annex II | Annex II | | | Annex V | Annex III | Annex III | | | Annex VI | Annex IV | Annex IV | | | Annex VII | Annex V | Annex V | | | Annex VIII | Annex VI | Annex VI | |
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17dc69fafd6f5b74b4ae8dcf8091607b05be0dce | DIRECTIVES
DIRECTIVE 2013/37/EU OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 26 June 2013 amending Directive 2003/98/EC on the re-use of public sector information (Text with EEA relevance)
THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION,
Having regard to the Treaty on the Functioning of the European Union, and in particular Article 114 thereof,
Having regard to the proposal from the European Commission,
After transmission of the draft legislative act to the national parliaments,
Having regard to the opinion of the European Economic and Social Committee (1),
Acting in accordance with the ordinary legislative procedure (2),
Whereas:
(1) Documents produced by public sector bodies of the Member States constitute a vast, diverse and valuable pool of resources that can benefit the knowledge economy.
(2) Directive 2003/98/EC of the European Parliament and of the Council of 17 November 2003 on the re-use of public sector information (3) establishes a minimum set of rules governing the re-use and the practical means of facilitating re-use of existing documents held by public sector bodies of the Member States.
(3) Open data policies which encourage the wide availability and re-use of public sector information for private or commercial purposes, with minimal or no legal, technical or financial constraints, and which promote the circulation of information not only for economic operators but also for the public, can play an important role in kick-starting the development of new services based on novel ways to combine and make use of such information, stimulate economic growth and promote social engagement. However, this requires a level playing field at Union level in terms of whether or not the re-use of documents is authorised, which cannot be achieved by leaving it subject to the different rules and practices of the Member States or the public sector bodies concerned.
(4) Allowing re-use of documents held by a public sector body adds value for the re-users, for the end users and for society in general and in many cases for the public body itself, by promoting transparency and accountability and providing feedback from re-users and end users which allows the public sector body concerned to improve the quality of the information collected.
(5) Since the first set of rules on re-use of public sector information was adopted in 2003, the amount of data in the world, including public data, has increased exponentially and new types of data are being generated and collected. In parallel, we are witnessing a continuous evolution in technologies for analysis, exploitation and processing of data. This rapid technological evolution makes it possible to create new services and new applications, which are built upon the use, aggregation or combination of data. The rules adopted in 2003 no longer keep pace with these rapid changes and as a result the economic and social opportunities offered by re-use of public data risk being missed.
(6) At the same time, Member States have now established re-use policies under Directive 2003/98/EC and some of them have been adopting ambitious open data approaches to make re-use of accessible public data easier for citizens and companies beyond the minimum level set by that Directive. To prevent different rules in
______________________________________________________________________
(1) OJ C 191, 29.6.2012, p. 129. (2) Position of the European Parliament of 13 June 2013 (not yet published in the Official Journal) and decision of the Council of 20 June 2013. (3) OJ L 345, 31.12.2003, p. 90. Directive 2003/98/EC does not contain an obligation concerning access to documents or an obligation to allow re-use of documents. The decision whether or not to authorise re-use remains with the Member States or the public sector body concerned. At the same time, Directive 2003/98/EC builds on national rules on access to documents and allowing re-use of documents is therefore not required under that Directive where access is restricted (for example, national rules restrict access to citizens or companies who prove a particular interest in obtaining access to documents) or excluded (for example, national rules exclude access because of the sensitive nature of the documents based, inter alia, on grounds of national security, defence, public security). Some Member States have expressly linked the right of re-use to a right of access, so that all generally accessible documents are re-usable. In other Member States, the link between the two sets of rules is less clear, and this is a source of legal uncertainty.
Directive 2003/98/EC should therefore be amended to lay down a clear obligation for Member States to make all documents re-usable unless access is restricted or excluded under national rules on access to documents and subject to the other exceptions laid down in this Directive. The amendments made by this Directive do not seek to define or to change access regimes in Member States, which remain their responsibility.
Taking into account Union law and the international obligations of Member States and of the Union, particularly under the Berne Convention for the Protection of Literary and Artistic Works and the Agreement on Trade-Related Aspects of Intellectual Property Rights, documents for which third parties hold intellectual property rights should be excluded from the scope of Directive 2003/98/EC. If a third party was the initial owner of the intellectual property rights for a document held by libraries, including university libraries, museums and archives and the term of protection of those rights has not expired, that document should, for the purpose of this Directive, be considered as a document for which third parties hold intellectual property rights.
Directive 2003/98/EC should apply to documents the supply of which forms part of the public tasks of the public sector bodies concerned, as defined by law or by other binding rules in the Member States. In the absence of such rules the public tasks should be defined in accordance with common administrative practice in the Member States, provided that the scope of the public tasks is transparent and subject to review. The public tasks could be defined generally or on a case-by-case basis for individual public sector bodies.
This Directive should be implemented and applied in full compliance with the principles relating to the protection of personal data in accordance with Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data (1). In particular, it is worth noting that, according to that Directive, the Member States should determine the conditions under which the processing of personal data is lawful. Furthermore, one of the principles of that Directive is that personal data must not be processed further to collection in a way incompatible with the specified, explicit and legitimate purposes for which those data were collected.
Directive 2003/98/EC should be without prejudice to the rights, including economic and moral rights that employees of public sector bodies may enjoy under national rules.
Moreover, where any document is made available for re-use, the public sector body concerned should retain the right to exploit the document.
The scope of Directive 2003/98/EC should be extended to libraries, including university libraries, museums and archives.
One of the principal aims of the establishment of the internal market is the creation of conditions conducive to the development of Union-wide services. Libraries, museums and archives hold a significant amount of valuable public sector information resources, in particular since digitisation projects have multiplied the amount of digital public domain material. These cultural heritage collections and related metadata are a potential base for digital content products and services and have a huge potential for innovative re-use in sectors such as learning and tourism. Wider possibilities for re-using public cultural material should, inter alia, allow Union companies to exploit its potential and contribute to economic growth and job creation.
(1) OJ L 281, 23.11.1995, p. 31. (16) There are considerable differences in the rules and practices in the Member States relating to the exploitation of public cultural resources, which constitute barriers to realising economic potential of those resources. As libraries, museums and archives continue to invest in digitisation, many already make their public domain content available for re-use and many are actively seeking out opportunities to re-use their content. However, as they operate in very different regulatory and cultural environments, the practices of cultural establishments in exploiting content have developed in disparate ways.
(17) Since the differences in national rules and practices or the absence of clarity hinder the smooth functioning of the internal market and the proper development of the information society in the Union, minimum harmonisation of national rules and practices on the re-use of public cultural material in libraries, museums and archives should be undertaken.
(18) The extension of the scope of Directive 2003/98/EC should be limited to three types of cultural establishments – libraries, including university libraries, museums and archives, because their collections are and will increasingly become a valuable material for re-use in many products such as mobile applications. Other types of cultural establishments (such as orchestras, operas, ballets and theatres), including the archives that are part of those establishments, should remain outside the scope because of their ‘performing arts’ specificity. Since almost all of their material is covered by third-party intellectual property rights and would therefore remain outside the scope of that Directive, including them within the scope would have little effect.
(19) Digitisation is an important means of ensuring greater access to and re-use of cultural material for education, work or leisure. It also offers considerable economic opportunities, allowing for an easier integration of cultural material into digital services and products, thus supporting job creation and growth. These aspects were underlined in, amongst others, the European Parliament’s resolution of 5 May 2010 on ‘Europeana — the next steps’ (1), the Commission Recommendation 2011/711/EU of 27 October 2011 on the digitisation and online accessibility of cultural material and digital preservation (2), and the Council conclusions of 10 May 2012 on the digitisation and online accessibility of cultural material and digital preservation (3). These documents define the way forward for dealing with the legal, financial and organisational aspects of digitising Europe’s cultural heritage and bringing it online.
(20) To facilitate re-use, public sector bodies should, where possible and appropriate, make documents available through open and machine-readable formats and together with their metadata, at the best level of precision and granularity, in a format that ensures interoperability, e.g. by processing them in a way consistent with the principles governing the compatibility and usability requirements for spatial information under Directive 2007/2/EC of the European Parliament and of the Council of 14 March 2007 establishing an Infrastructure for Spatial Information in the European Community (INSPIRE) (4).
(21) A document should be considered to be in a machine-readable format if it is in a file format that is structured in such a way that software applications can easily identify, recognise and extract specific data from it. Data encoded in files that are structured in a machine-readable format are machine-readable data. Machine-readable formats can be open or proprietary; they can be formal standards or not. Documents encoded in a file format that limits automatic processing, because the data cannot, or cannot easily, be extracted from them, should not be considered to be in a machine-readable format. Member States should where appropriate encourage the use of open, machine-readable formats.
(22) Where charges are made by public sector bodies for the re-use of documents, those charges should in principle be limited to the marginal costs. However the necessity of not hindering the normal running of public sector bodies that are required to generate revenue to cover a substantial part of their costs relating to the performance of their public tasks or of the costs relating to the collection, production, reproduction and dissemination of certain documents made available for re-use should be taken into consideration. In such cases, public sector bodies should be able to charge above marginal costs. Those charges should be set according to objective, transparent and verifiable criteria and the total income from supplying and allowing re-use of documents should not exceed the cost of collection, production, reproduction and dissemination, together with a reasonable return on investment. The requirement to generate revenue to cover a substantial part of the public sector bodies’ costs relating to the performance of their public tasks or of the costs relating to the collection, production, reproduction and dissemination of certain documents, does not have to be a legal requirement and may stem, for example, from administrative practices in Member States. Such a requirement should be regularly reviewed by the Member States.
(1) OJ C 81, E, 15.3.2011, p. 16. (2) OJ L 283, 29.10.2011, p. 39. (3) OJ C 169, 15.6.2012, p. 5. (4) OJ L 108, 25.4.2007, p. 1. (23) Libraries, museums and archives should also be able to charge above marginal costs in order not to hinder their normal running. In the case of such public sector bodies the total income from supplying and allowing re-use of documents over the appropriate accounting period should not exceed the cost of collection, production, reproduction, dissemination, preservation and rights clearance, together with a reasonable return on investment. For the purpose of libraries, museums and archives and bearing in mind their particularities, the prices charged by the private sector for the re-use of identical or similar documents could be considered when calculating a reasonable return on investment.
(24) The upper limits for charges set in this Directive are without prejudice to the right of Member States to apply lower charges or no charges at all.
(25) Member States should lay down the criteria for charging above marginal costs. In this respect, Member States, for example, may lay down such criteria in national rules or may designate the appropriate body or appropriate bodies, other than the public sector body itself, competent to lay down such criteria. That body should be organised in accordance with the constitutional and legal systems of the Member States. It could be an existing body with budgetary executive powers and under political responsibility.
(26) In relation to any re-use that is made of the document, public sector bodies may impose conditions, where appropriate through a licence, such as acknowledgment of source and acknowledgment of whether the document has been modified by the re-user in any way. Any licences for the re-use of public sector information should in any event place as few restrictions on re-use as possible, for example limiting them to an indication of source. Open licences available online, which grant wider re-use rights without technological, financial or geographical limitations and relying on open data formats, should play an important role in this respect. Therefore, Member States should encourage the use of open licences that should eventually become common practice across the Union.
(27) The Commission has supported the development of an online Public Sector Information scoreboard with relevant performance indicators for the re-use of public sector information in all the Member States. A regular update of this scoreboard will contribute to the exchange of information between the Member States and the availability of information on policies and practices across the Union.
(28) The means of redress should include the possibility of review by an impartial review body. That body could be an already existing national authority, such as the national competition authority, the national access to documents authority or a national judicial authority. That body should be organised in accordance with the constitutional and legal systems of Member States and should not prejudge any means of redress otherwise available to applicants for re-use. It should however be distinct from the Member State mechanism laying down the criteria for charging above marginal costs. The means of redress should include the possibility of review of negative decisions but also of decisions which, although permitting re-use, could still affect applicants on other grounds, notably by the charging rules applied. The review process should be swift, in accordance with the needs of a rapidly changing market.
(29) Competition rules should be respected when establishing the principles for re-use of documents avoiding as far as possible exclusive agreements between public sector bodies and private partners. However, in order to provide a service in the public interest, an exclusive right to re-use specific public sector documents may sometimes be necessary. This may be, inter alia, the case if no commercial publisher would publish the information without such an exclusive right. In order to take this concern into account Directive 2003/98/EC authorises, subject to a regular review, exclusive arrangements where an exclusive right is necessary for the provision of a service in the public interest.
(30) Following the extension of the scope of Directive 2003/98/EC to libraries, including university libraries, museums and archives, it is appropriate to take into account current divergences in the Member States with regard to digitisation of cultural resources, which could not be effectively accommodated by the current rules of that Directive on exclusive arrangements. There are numerous cooperation arrangements between libraries, including university libraries, museums, archives and private partners which involve digitisation of cultural resources granting exclusive rights to private partners. Practice has shown that such public-private partnerships can facilitate worthwhile use of cultural collections and at the same time accelerate access to the cultural heritage for members of the public.
(31) Where an exclusive right relates to digitisation of cultural resources, a certain period of exclusivity might be necessary in order to give the private partner the possibility to recoup its investment. That period should, however, be limited in time and as short as possible, in order to respect the principle that public domain material should stay in the public domain once it is digitised. The period of an exclusive right to digitise cultural resources should in general not exceed 10 years. Any period of exclusivity longer than 10 years should be subject to review, taking into account technological, financial and administrative changes in the environment since the arrangement was entered into. In addition, any public private partnership for the digitisation of cultural resources should grant the partner cultural institution full rights with respect to the post-termination use of digitised cultural resources.
(32) In order to take due account of contracts and other arrangements which grant exclusive rights and which were concluded before the entry into force of this Directive, appropriate transitional measures should be established to protect the interests of the parties concerned where their exclusive rights do not qualify for the exceptions authorised under this Directive. Those transitional measures should allow for the parties’ exclusive rights to continue to exist until the end of the contract or, for open-ended contracts or contracts of a very long duration, to continue to exist for a sufficiently long period to allow the parties to take appropriate measures. Those transitional measures should not apply to contracts or other arrangements concluded after the entry into force of this Directive but before the application of national measures transposing this Directive, in order to avoid situations whereby contracts or other long-term arrangements which do not comply with this Directive are concluded so as to circumvent future national transposition measures to be adopted. Contracts and other arrangements concluded after the entry into force of this Directive but before the date of application of national transposition measures should therefore comply with this Directive as from the date of application of national measures transposing this Directive.
(33) Since the objectives of this Directive, namely to facilitate the creation of Union-wide information products and services based on public sector documents, to ensure the effective cross-border use of public sector documents on the one hand by private companies, particularly by small and medium-sized enterprises, for added-value information products and services, and on the other hand by citizens to facilitate the free circulation of information and communication, cannot be sufficiently achieved by Member States and can therefore, by reasons of the pan-European scope of the proposed action, be better achieved at Union level, the Union may adopt measures in accordance with the principle of subsidiarity as set out in Article 5 of the Treaty on European Union. In accordance with the principles of proportionality, as set out in that Article, this Directive does not go beyond what is necessary in order to achieve those objectives.
(34) This Directive respects the fundamental rights and observes the principles recognised in particular by the Charter of Fundamental Rights of the European Union, including the protection of personal data (Article 8) and the right to property (Article 17). Nothing in this Directive should be interpreted or implemented in a manner that is inconsistent with the European Convention for the Protection of Human Rights and Fundamental Freedoms.
(35) It is necessary to ensure that the Member States report to the Commission on the extent of the re-use of public sector information, the conditions under which it is made available and the redress practices.
(36) The Commission should assist the Member States in implementing this Directive in a consistent way by issuing guidelines, particularly on recommended standard licences, datasets and charging for the re-use of documents, after consulting interested parties.
(37) Directive 2003/98/EC should therefore be amended accordingly.
HAVE ADOPTED THIS DIRECTIVE:
Article 1
Directive 2003/98/EC is amended as follows:
(1) Article 1 is amended as follows:
(a) paragraph 2 is amended as follows:
(i) point (a) is replaced by the following:
‘(a) documents the supply of which is an activity falling outside the scope of the public task of the public sector bodies concerned as defined by law or by other binding rules in the Member State, or in the absence of such rules, as defined in line with common administrative practice in the Member State in question, provided that the scope of the public tasks is transparent and subject to review;’;
(ii) point (c) is replaced by the following:
‘(c) documents which are excluded from access by virtue of the access regimes in the Member States, including on the grounds of:
— the protection of national security (i.e. State security), defence, or public security,
— statistical confidentiality,
— commercial confidentiality (e.g. business, professional or company secrets);’; (iii) the following points are inserted:
'(ca) documents access to which is restricted by virtue of the access regimes in the Member States, including cases whereby citizens or companies have to prove a particular interest to obtain access to documents;
(cb) parts of documents containing only logos, crests and insignia;
(cc) documents access to which is excluded or restricted by virtue of the access regimes on the grounds of protection of personal data, and parts of documents accessible by virtue of those regimes which contain personal data the re-use of which has been defined by law as being incompatible with the law concerning the protection of individuals with regard to the processing of personal data;'
(iv) point (e) is replaced by the following:
'(e) documents held by educational and research establishments, including organisations established for the transfer of research results, schools and universities, except university libraries and;
(v) point (f) is replaced by the following:
'(f) documents held by cultural establishments other than libraries, museums and archives;'
(b) paragraph 3 is replaced by the following:
'3. This Directive builds on and is without prejudice to access regimes in the Member States;'
(c) in paragraph 4, the word 'Community' is replaced by the word 'Union'.
(2) The following points are added to Article 2:
'6. 'machine-readable format' means a file format structured so that software applications can easily identify, recognize and extract specific data, including individual statements of fact, and their internal structure;
7. 'open format' means a file format that is platform-independent and made available to the public without any restriction that impedes the re-use of documents;
8. 'formal open standard' means a standard which has been laid down in written form, detailing specifications for the requirements on how to ensure software interoperability;'
9. 'university' means any public sector body that provides post-secondary-school higher education leading to academic degrees;'
(3) Article 3 is replaced by the following:
'Article 3
General principle
1. Subject to paragraph 2 Member States shall ensure that documents to which this Directive applies in accordance with Article 1 shall be re-usable for commercial or non-commercial purposes in accordance with the conditions set out in Chapters III and IV.
2. For documents in which libraries, including university libraries, museums and archives hold intellectual property rights, Member States shall ensure that, where the re-use of such documents is allowed, these documents shall be re-usable for commercial or non-commercial purposes in accordance with the conditions set out in Chapters III and IV;'
(4) In Article 4, paragraphs 3 and 4 are replaced by the following:
'3. In the event of a negative decision, the public sector bodies shall communicate the grounds for refusal to the applicant on the basis of the relevant provisions of the access regime in that Member State or of the national provisions adopted pursuant to this Directive, in particular points (a) to (cc) of Article 1(2) or Article 3. Where a negative decision is based on Article 1(2)(b), the public sector body shall include a reference to the natural or legal person who is the rightholder, where known, or alternatively to the licensor from which the public sector body has obtained the relevant material. Libraries, including university libraries, museums and archives shall not be required to include such a reference.
4. Any decision on re-use shall contain a reference to the means of redress in case the applicant wishes to appeal the decision. The means of redress shall include the possibility of review by an impartial review body with the appropriate expertise, such as the national competition authority, the national access to documents authority or a national judicial authority, whose decisions are binding upon the public sector body concerned;'
(5) Article 5 is replaced by the following:
'Article 5
Available formats
1. Public sector bodies shall make their documents available in any pre-existing format or language, and, where possible and appropriate, in open and machine-readable format together with their metadata. Both the format and the metadata should, in so far as possible, comply with formal open standards.
2. Paragraph 1 shall not imply an obligation for public sector bodies to create or adapt documents or provide extracts in order to comply with that paragraph where this would involve disproportionate effort, going beyond a simple operation.
3. On the basis of this Directive, public sector bodies cannot be required to continue the production and storage of a certain type of documents with a view to the re-use of such documents by a private or public sector organisation.
(6) Article 6 is replaced by the following:
‘Article 6 Principles governing charging
1. Where charges are made for the re-use of documents, those charges shall be limited to the marginal costs incurred for their reproduction, provision and dissemination.
2. Paragraph 1 shall not apply to the following:
(a) public sector bodies that are required to generate revenue to cover a substantial part of their costs relating to the performance of their public tasks;
(b) by way of exception, documents for which the public sector body concerned is required to generate sufficient revenue to cover a substantial part of the costs relating to their collection, production, reproduction and dissemination. Those requirements shall be defined by law or by other binding rules in the Member State. In the absence of such rules, the requirements shall be defined in accordance with common administrative practice in the Member State;
(c) libraries, including university libraries, museums and archives.
3. In the cases referred to in points (a) and (b) of paragraph 2, the public sector bodies concerned shall calculate the total charges according to objective, transparent and verifiable criteria to be laid down by the Member States. The total income of those bodies from supplying and allowing re-use of documents over the appropriate accounting period shall not exceed the cost of collection, production, reproduction, dissemination, preservation and rights clearance, together with a reasonable return on investment. Charges shall be calculated in line with the accounting principles applicable to the public sector bodies involved.’.
(7) Article 7 is replaced by the following:
‘Article 7 Transparency
1. In the case of standard charges for the re-use of documents held by public sector bodies, any applicable conditions and the actual amount of those charges, including the calculation basis for such charges, shall be pre-established and published, through electronic means where possible and appropriate.
2. In the case of charges for the re-use other than those referred to in paragraph 1, the public sector body in question shall indicate at the outset which factors are taken into account in the calculation of those charges. Upon request, the public sector body in question shall also indicate the way in which such charges have been calculated in relation to the specific re-use request.
3. The requirements referred to in point (b) of Article 6(2) shall be pre-established. They shall be published by electronic means, where possible and appropriate.
4. Public sector bodies shall ensure that applicants for re-use of documents are informed of available means of redress relating to decisions or practices affecting them.’.
(8) In Article 8, paragraph 1 is replaced by the following:
‘1. Public sector bodies may allow re-use without conditions or may impose conditions, where appropriate through a licence. These conditions shall not unnecessarily restrict possibilities for re-use and shall not be used to restrict competition.’.
(9) Article 9 is replaced by the following:
‘Article 9 Practical arrangements Member States shall make practical arrangements facilitating the search for documents available for re-use, such as asset lists of main documents with relevant metadata, accessible where possible and appropriate online and in machine-readable format, and portal sites that are linked to the asset lists. Where possible Member States shall facilitate the cross-linguistic search for documents.’. (10) Article 11 is amended as follows:
(a) the following subparagraph is added to paragraph 2:
‘This paragraph shall not apply to digitisation of cultural resources.’;
(b) the following paragraph is inserted:
‘2a. Notwithstanding paragraph 1, where an exclusive right relates to digitisation of cultural resources, the period of exclusivity shall in general not exceed 10 years. In case where that period exceeds 10 years, its duration shall be subject to review during the 11th year and, if applicable, every seven years thereafter.
The arrangements granting exclusive rights referred to in the first subparagraph shall be transparent and made public.
In the case of an exclusive right referred to in the first subparagraph, the public sector body concerned shall be provided free of charge with a copy of the digitised cultural resources as part of those arrangements. That copy shall be available for re-use at the end of the period of exclusivity.’;
(c) paragraph 3 is replaced by the following:
‘3. Exclusive arrangements existing on 1 July 2005 that do not qualify for the exceptions under paragraph 2 shall be terminated at the end of the contract or in any event not later than 31 December 2008.’;
(d) the following paragraph is added:
‘4. Without prejudice to paragraph 3, exclusive arrangements existing on 17 July 2013 that do not qualify for the exceptions under paragraphs 2 and 2a shall be terminated at the end of the contract or in any event not later than 18 July 2043.’;
(11) Article 13 is replaced by the following:
‘Article 13
Review
1. The Commission shall carry out a review of the application of this Directive before 18 July 2018 and shall communicate the results of that review, together with any proposals for amendments to this Directive, to the European Parliament and the Council.
2. Member States shall submit a report every 3 years to the Commission on the availability of public sector information for re-use and the conditions under which it is made available and the redress practices. On the basis of that report, which shall be made public, Member States shall carry out a review of the implementation of Article 6, in particular as regards charging above marginal cost.
3. The review referred to in paragraph 1 shall in particular address the scope and impact of this Directive, including the extent of the increase in re-use of public sector documents, the effects of the principles applied to charging and the re-use of official texts of a legislative and administrative nature, the interaction between data protection rules and re-use possibilities, as well as further possibilities of improving the proper functioning of the internal market and the development of the European content industry.’.
Article 2
1. By 18 July 2015, Member States shall adopt and publish the laws, regulations and administrative provisions necessary to comply with this Directive. They shall immediately inform the Commission thereof.
They shall apply those measures from 18 July 2015.
2. When Member States adopt those measures, they shall contain a reference to this Directive or be accompanied by such a reference on the occasion of their official publication. Member States shall determine how such reference is to be made.
Article 3
This Directive shall enter into force on the twentieth day following that of its publication in the Official Journal of the European Union.
Article 4
This Directive is addressed to the Member States.
Done at Brussels, 26 June 2013.
For the European Parliament The President M. SCHULZ
For the Council The President A. SHATTER
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6f091239fad27aacb22d7f8a59d7a17efd88ae68 | COMMISSION IMPLEMENTING REGULATION (EU) No 404/2011 of 8 April 2011 laying down detailed rules for the implementation of Council Regulation (EC) No 1224/2009 establishing a Community control system for ensuring compliance with the rules of the Common Fisheries Policy (OJ L 112, 30.4.2011, p. 1)
Amended by:
Official Journal No page date
►M1 Commission Implementing Regulation (EU) 2015/1962 of 28 October 2015 L 287 6 31.10.2015
Corrected by:
►C1 Corrigendum, OJ L 328, 10.12.2011, p. 58 (404/2011) COMMISSION IMPLEMENTING REGULATION (EU) No 404/2011 of 8 April 2011 laying down detailed rules for the implementation of Council Regulation (EC) No 1224/2009 establishing a Community control system for ensuring compliance with the rules of the Common Fisheries Policy
THE EUROPEAN COMMISSION,
Having regard to the Treaty on the Functioning of the European Union,
Having regard to Council Regulation (EC) No 1224/2009 of 20 November 2009 establishing a Community control system for ensuring compliance with the rules of the Common Fisheries Policy, amending Regulations (EC) No 847/96, (EC) No 2371/2002, (EC) No 811/2004, (EC) No 768/2005, (EC) No 2115/2005, (EC) No 2166/2005, (EC) No 388/2006, (EC) No 509/2007, (EC) No 676/2007, (EC) No 1098/2007, (EC) No 1300/2008, (EC) No 1342/2008 and repealing Regulations (EEC) No 2847/93, (EC) No 1627/94 and (EC) No 1966/2006 (1), and in particular Articles 6(5), 7(5), 8(1), 9(5), 14(10), 15(9), 16(2), 21(7), 22(7), 23(5), 24(8) and 25(2), Article 32, Articles 37(4), 40(6), 55(5), 58(9), 60(7), Article 61, and Articles 64(2), 72(5), 73(9), 74(6), 75(2), 76(4), 78(2), 79(7), 92(5), 103(8), 105(6), 106(4), 107(4), 111(3), 116(6), 117(4) and 118(5) thereof,
Whereas:
(1) Regulation (EC) No 1224/2009 (hereafter referred to as ‘the Control Regulation’) provides for the adoption of detailed rules and measures to implement certain provisions it sets out.
(2) With a view to ensuring a coherent application of these detailed rules the establishment of certain definitions is necessary.
(3) Article 6(1) of the Control Regulation provides that a Union fishing vessel may only be used for the commercial exploitation of living aquatic resources if it has a valid fishing licence. Article 7(1) of the Control Regulation provides that a Union fishing vessel shall only be authorised to carry out specific fishing activities in so far as they are indicated in a valid fishing authorisation. It is appropriate to establish common rules for the issuance and management of such fishing licences and fishing authorisations to ensure a common standard of information contained therein.
(1) OJ L 343, 22.12.2009, p. 1. (4) Article 8(1) of the Control Regulation provides that a master of a fishing vessel has to respect conditions and restrictions relating to the marking and identification of fishing vessels and their gear. As such conditions and restrictions apply to Union waters it is necessary to establish them at the level of the European Union.
(5) According to Article 9(1) of the Control Regulation, Member States shall operate a satellite-based Vessel Monitoring System for the effective monitoring of fishing activities of their fishing vessels wherever they may be and of fishing activities in their waters. It is appropriate to establish common specifications at the level of the European Union for such a system. Such specifications should set out in particular the characteristics of satellite tracking devices, details on the transmission of position data and rules in the case of a technical failure or non-functioning of satellite tracking devices.
(6) Article 14(1) of the Control Regulation provides that masters of Union fishing vessels of 10 metres length overall or more have to keep a fishing logbook of their operations. It is necessary to determine the information that has to be recorded in the fishing logbooks and their format.
(7) Article 14(7) of the Control Regulation provides that masters of Union fishing vessels have to use conversion factors established at EU level for converting stored or processed fish weight into live fish weight. It is therefore necessary to establish such conversion factors.
(8) Article 15(1) of the Control Regulation provides that masters of Union fishing vessels of 12 metres length overall or more have to record logbook information by electronic means. It is appropriate to establish the requirements for the electronic completion and transmission of this information and to specify their format.
(9) Articles 21(1) and 23(1) of the Control Regulation provide that masters of Union fishing vessels of 10 metres length overall and more have to complete and submit transhipment and landing declarations. It is appropriate to determine the information that has to be contained in these declarations and to specify the details of their submission.
(10) Articles 22(1) and 24(1) of the Control Regulation provides for the electronic completion and transmission of transhipment and landing declarations by electronic means. It is appropriate to establish the requirements for the electronic completion and transmission of these data and to specify their format.
(11) Articles 16(1) and 25(1) of the Control Regulation provide that every Member State has to monitor on the basis of sampling the activities of fishing vessels which are not subject to logbook requirements and landing declarations. With a view to ensure common standards of such samplings detailed rules, should be established at the level of the European Union. (12) Article 37 of the Control Regulation provides that necessary corrective actions are to be taken by the Commission in case the Commission has prohibited fishing because of the alleged exhaustion of the fishing opportunities available to a Member State or group of Member States, or to the European Union and it transpires that a Member State has not in fact exhausted its fishing opportunities. It is necessary to adopt adequate rules for the reallocation of such fishing opportunities, which take into account situations where a total allowable catch (TAC) for the EU is available or not, or where due to the annual setting of fishing opportunities circumstances do not permit such reallocation.
(13) Articles 39 to 41 of the Control Regulation foresee rules to ensure that the engine power of fishing vessels is not exceeded. It is necessary to establish the technical rules of the relevant certifications and verifications to be done in this field.
(14) Article 55 of the Control Regulation provides that Member States should ensure that recreational fisheries are conducted in a manner compatible with the objectives of the Common Fisheries Policy. For stocks under a recovery plan Member States should collect catch data of recreational fisheries. Where such fisheries have a significant impact on the resources, specific management measures may be decided by the Council. It is appropriate to lay down detailed rules for the establishment of sampling plans in order to allow Member States to monitor the catches of stocks subject to recovery plans by recreational fisheries practised from their vessels, in waters subject to their sovereignty or jurisdiction.
(15) In order to establish a comprehensive control regime the whole chain of production and marketing should be covered by such a regime. Article 58 of the Control Regulation provides for a coherent traceability system to ensure that all lots of fisheries and aquaculture products are traceable at all stages of production, processing and distribution, from catching or harvesting to the retail stage. It is necessary to lay down common rules for identification procedures of the product concerned.
(16) Article 60 of the Control Regulation provides that all fishery products are to be weighed on systems approved by the competent authorities unless they have adopted a sampling plan approved by the Commission. It is necessary to establish common rules in all Member States for the weighing of fresh and frozen fisheries products, as well as for the weighing of transhipped fisheries products, and for the weighing of fisheries products after transport from the place of landing.
(17) Article 61 of the Control Regulation provides for the possibility for fisheries products to be weighed after transport under the condition that the Member State has adopted a control plan or, when the fisheries products are transported to another Member State, that the Member States concerned have adopted a common control programme that are approved by the Commission and based on a risk-based methodology adopted by the Commission. This risk-based methodology needs to be defined. (18) The fishery on herring, mackerel and horse mackerel has some specific features. For this reason it is appropriate to establish special rules on weighing and related elements to take account of these specific features.
(19) Article 64 of the Control Regulation foresees that the detailed rules on the content of sales notes are to be adopted. It is pertinent to include such rules in this Regulation.
(20) Articles 71 and 72 of the Control Regulation provide that Member States shall carry out surveillance in Union waters and take the necessary measures if a sighting does not correspond to the information available to them. It is necessary to lay down common rules regarding the content of a surveillance report, and its means of transmission.
(21) Article 73 of the Control Regulation provides the possibility for the Council to establish control observer schemes and establishes in general lines the profile and tasks of control observers on board fishing vessels. Therefore detailed rules on the deployment and duties of control observers should be drawn up.
(22) According to Chapter I of Title VII of the Control Regulation, rules are to be established for the conduct of inspections in order to enhance a standardised approach to control activities carried out by Member States. Rules should be laid down for the conduct of officials in charge of inspections, and the obligations of Member States regarding the behaviour of their officials authorised to conduct such inspections. At the same time, the duties of operators during inspection should be clarified. It is also necessary to lay down common principles for inspection procedures at sea, in port, during transport, at market places, and regarding inspection reports and their transmission.
(23) Article 79 of the Control Regulation provides that Union inspectors may carry out inspections in Union waters and on Union fishing vessels outside Union waters. It is appropriate to draw up rules regarding the nomination of Union inspectors, their tasks and obligations, as well as the type of follow up to be given to their report.
(24) Article 92 of the Control Regulation provides for the establishment of a point system for serious infringements with the aim to ensure compliance with the rules of the Common Fisheries Policy and a level playing field in all Union waters. For this to be achieved, it is necessary to establish common rules at the level of the European Union for the application of such a point system, including a list of points to be attributed for each serious infringement. In accordance with Article 5(6) and Article 103 of the Control Regulation, the financial assistance in the framework of Council Regulation (EC) No 1198/2006 of 27 July 2006 on the European Fisheries Fund (1) and Council Regulation (EC) No 861/2006 of 22 May 2006 establishing Community financial measures for the implementation of the Common Fisheries Policy and in the area of the Law of the Sea (2) is made conditional upon compliance by Member States with their obligations in the fields of fisheries conservation and control, the Commission having the possibility under certain conditions to suspend and cancel such financial assistance. It is necessary to lay down detailed rules for the application of these measures.
Article 107 of the Control Regulation provides for deduction of quotas by the Commission in cases of failure by Member States to comply with the rules on stocks subject to multiannual plans which leads to a serious threat to the conservation of such stocks. Rules should therefore be drawn up regarding the extent of the deduction, taking into account the nature of the non-compliance, the extent of its impact, as well as the gravity of the threat to the resource.
Chapter I of Title XII of the Control Regulation establishes rules on the handling of data recorded for the purpose of that Regulation, including the obligation for the Member States to set up a computerised database and a validation system and the provisions on accessing and exchanging such data. It is necessary to lay down common rules establishing procedures to process such data and to ensure access to it by the Commission and specifying the requirements for the exchange of data.
Article 110 of the Control Regulation deals with the remote access of the Commission or the body designated by it to computer files containing the data recorded by fisheries monitoring centres of Member States. In order to ensure such an access it is pertinent to establish clear rules on the conditions and the procedures that should be respected.
Articles 114 to 116 of the Control Regulation provide that the Member States have to establish official websites. With a view to ensure their equal accessibility in all Member States it is pertinent to establish rules at EU level on these websites.
According to Article 117 of the Control Regulation a system of mutual assistance shall be established for ensuring the administrative cooperation among Member States and the Commission. Such administrative cooperation is essential to ensure that a level playing field in the EU is established and that illegal activities are properly investigated and sanctioned. Rules should therefore be drawn up for a systematic exchange of information either on request or spontaneously, and for the possibility to request enforcement measures and administrative notification by another Member State.
(1) OJ L 223, 15.8.2006, p. 1. (2) OJ L 160, 14.6.2006, p. 1. The protection of individuals with regard to the processing of personal data by the Member States is governed by Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data (1). The protection of individuals with regard to the processing of personal data by the Commission is governed by Regulation (EC) No 45/2001 of the European Parliament and of the Council of 18 December 2000 on the protection of individuals with regard to the processing of personal data by the Community institutions and bodies and on the free movement of such data (2), in particular as regards the requirements of confidentiality and security of processing, the transfer of personal data from the national systems of Member States to the Commission, the lawfulness of processing, and the rights of data subjects to information, access to and rectification of their personal data.
To facilitate the implementation of the fisheries control system, detailed rules should be concentrated in one single Regulation. The following Commission Regulations should therefore be repealed:
— Regulation (EEC) No 2807/83 (3) laying down detailed rules for recording information on Member States’ catches of fish,
— Regulation (EEC) No 3561/85 (4) concerning information about inspections of fishing activities carried out by national control authorities,
— Regulation (EEC) No 493/87 (5) establishing detailed rules for remedying the prejudice caused on the halting of certain fisheries,
— Regulation (EEC) No 1381/87 (6) establishing detailed rules concerning the marking and documentation of fishing vessels,
— Regulation (EEC) No 1382/87 (7) establishing detailed rules concerning the inspection of fishing vessels,
— Regulation (EC) No 2943/95 (8) setting out detailed rules for applying Council Regulation (EC) No 1627/94 laying down general provisions concerning special fishing permits,
— Regulation (EC) No 1449/98 (9) laying down detailed rules for the application of Council Regulation (EEC) No 2847/93 as regards effort reports,
(1) OJ L 281, 23.11.1995, p. 31. (2) OJ L 8, 12.1.2001, p. 1. (3) OJ L 276, 10.10.1983, p. 1. (4) OJ L 339, 18.12.1985, p. 29. (5) OJ L 50, 19.2.1987, p. 13. (6) OJ L 132, 21.5.1987, p. 9. (7) OJ L 132, 21.5.1987, p. 11. (8) OJ L 308, 21.12.1995, p. 15. (9) OJ L 192, 8.7.1998, p. 4. — Regulation (EC) No 356/2005 (1) laying down detailed rules for the marking and identification of passive fishing gear and beam trawls,
— Regulation (EC) No 2244/2003 (2) laying down detailed provisions regarding satellite-based Vessel Monitoring Systems,
— Regulation (EC) No 1281/2005 (3) of the management of fishing licences and the minimal information to be contained therein,
— Regulation (EC) No 1042/2006 (4) laying down detailed rules for the implementation of Article 28(3) and (4) of Council Regulation (EEC) No 2371/2002 on the conservation and sustainable exploitation of fisheries resources under the Common Fisheries Policy,
— Regulation (EC) No 1542/2007 (5) on landing and weighing procedures for herring, mackerel and horse mackerel,
— Regulation (EC) No 1077/2008 (6) laying down detailed rules for the implementation of Council Regulation (EC) No 1966/2006 on electronic recording and reporting of fishing activities and on means of remote sensing and repealing Regulation (EC) No 1566/2007, and
— Regulation (EC) No 409/2009 (7) establishing Community conversion factors and presentation codes used to convert fish processed weight into fish weight, and amending Commission Regulation (EEC) No 2807/83.
(33) The measures provided for in this Regulation are in accordance with the opinion of the Management Committee for Fisheries and Aquaculture,
HAS ADOPTED THIS REGULATION
TITLE I
GENERAL PROVISIONS
SCOPE
Article 1
Subject matter
This Regulation lays down detailed rules for the application of the control system of the European Union as established by the Control Regulation.
(1) OJ L 56, 2.3.2005, p. 8. (2) OJ L 333, 20.12.2003, p. 17. (3) OJ L 203, 4.8.2005, p. 3. (4) OJ L 187, 8.7.2006, p. 14. (5) OJ L 337, 21.12.2007, p. 56. (6) OJ L 295, 4.11.2008, p. 3. (7) OJ L 123, 19.5.2009, p. 78. Article 2
Definitions
For the purpose of this Regulation the following definitions shall apply:
(1) ‘Union fishing vessel’ means a fishing vessel flying the flag of a Member State and registered in the Union;
(2) ‘Union waters’ means waters defined in point (1) of Article 4(1) of Regulation (EU) No 1380/2013 of the European Parliament and of the Council (1);
(3) ‘holder of a fishing licence’ means a natural or legal person to whom a fishing licence as referred to Article 6 of the Control Regulation has been issued;
(4) ‘Union inspectors’ means inspectors as defined in Article 4(7) of the Control Regulation;
(5) ‘fish aggregating device’ means any equipment floating on the sea surface or anchored with the objective of attracting fish;
(6) ‘passive gear’ means any fishing gear the catch operation of which does not require an active movement of the gear, including:
(a) gillnets, entangling nets, trammel nets, and trap nets;
(b) drifting gillnets, and drifting trammel nets, any of which may be equipped with anchoring, floating and navigational gear;
(c) long lines, lines, pots and traps;
(7) ‘beam trawl’ means any towed trawl in which the mouth of the trawl is held open by a beam or similar device, irrespectively of whether they are supported or not when dragged along the seabed;
(8) ‘vessel monitoring system’ (VMS) as referred to in Article 9(1) of the Control Regulation means a satellite-based fishing vessel monitoring system providing to the fisheries authorities data at regular intervals on the location, course and speed of vessels;
(9) ‘satellite-tracking device’ as referred to in Article 4(12) of the Control Regulation means a device installed on board of a fishing vessel that transmits position and related data automatically to the fisheries monitoring centre according to the legal requirements and that allows detection and identification of the fishing vessel at all times;
(1) Regulation (EU) No 1380/2013 of the European Parliament and of the Council of 11 December 2013 on the Common Fisheries Policy, amending Council Regulations (EC) No 1954/2003 and (EC) No 1224/2009 and repealing Council Regulations (EC) No 2371/2002 and (EC) No 639/2004 and Council Decision 2004/585/EC (OJ L 354, 28.12.2013, p. 22). ‘fishing trip’ means any voyage of a fishing vessel during which fishing activities are conducted that starts at the moment when the fishing vessel leaves a port and ends on arrival in port;
‘fishing operation’ means all activities in connection with searching for fish, the shooting, towing and hauling of active gears, setting, soaking, removing or resetting of passive gears and the removal of any catch from the gear, keep nets, or from a transport cage to fattening and farming cages;
‘electronic fishing logbook’ means the record by computerised means of fishing operation details by the master of a fishing vessel transmitted to the Member State authorities;
‘product presentation’ means a description of the processed state of the fisheries product or part thereof in accordance with the codes and descriptions in Annex I;
‘European Fisheries Control Agency’ means the agency as defined in Article 1 of Council Regulation (EC) No 768/2005 (1);
‘sighting’ means any observation of a fishing vessel by any competent authority of a Member State;
‘commercially sensitive information’ means information the release of which is likely to prejudice the commercial interests of an operator;
‘computerised validation system’ means a system capable of verifying that all data recorded in Member States databases is accurate, complete and submitted within the deadlines;
‘web service’ means a software system designed to support interoperable machine-to-machine interaction over a network.
TITLE II GENERAL CONDITIONS FOR ACCESS TO WATERS AND RESOURCES
CHAPTER I Fishing licenses
Article 3 Issue and management of fishing licences
1. A fishing licence referred to in Article 6 of the Control Regulation shall be valid for one Union fishing vessel only.
2. Fishing licences referred to in Article 6 of the Control Regulation shall be issued, managed and withdrawn by Member States for their fishing vessels in accordance with this Regulation.
3. Fishing licences referred to in Article 6 of the Control Regulation shall contain as a minimum the information set out in Annex II.
(1) OJ L 128, 21.5.2005, p. 1. 4. Fishing licences issued in accordance with Regulation (EC) No 1281/2005 shall be considered as fishing licences issued in accordance with this Regulation if they contain the minimum information required by paragraph 3 of this Article.
5. A fishing licence shall only be valid if the conditions on the basis of which it has been issued are still met.
6. If a fishing licence has been temporarily suspended or permanently withdrawn, the authorities of the flag Member State shall immediately inform the holder of the fishing licence.
7. At any moment the total capacity corresponding to the fishing licences issued by a Member State, in Gross Tonnage (GT) or kilowatt (kW), shall not be higher than the maximum capacity levels for that Member State established in accordance with Article 22(7) of Regulation (EU) No 1380/2013.
CHAPTER II Fishing authorisations
Article 4 Fishing authorisations
1. A fishing authorisation referred to in Article 7 of the Control Regulation shall be valid for one Union fishing vessel only.
2. Fishing authorisations referred to in Article 7 of the Control Regulation shall contain as a minimum the information set out in Annex III. The flag Member State shall ensure that the information contained in the fishing authorisation is accurate and consistent with the rules of the Common Fisheries Policy.
3. Special fishing permits issued in accordance with Council Regulation (EC) No 1627/94 (1) shall be considered as fishing authorisations issued in accordance with this Regulation if they contain the minimum information required by paragraph 2 of this Article.
4. A fishing authorisation as referred to in paragraph 2 and a fishing licence as referred to in Article 3(2) of this Regulation may be contained in the same document.
5. Without prejudice to special rules Union fishing vessels of less than 10 metres’ length overall which fish exclusively in the territorial waters of their flag Member States shall be excluded from the obligation to have a fishing authorisation.
6. Paragraph 2 and paragraph 5 of Article 3 of this Regulation shall apply correspondingly.
(1) OJ L 171, 6.7.1994, p. 7. Article 5
List of fishing authorisations
1. Without prejudice to special rules, when the websites as referred to in Article 114 of the Control Regulation have become operational and not later than 1 January 2012 Member States shall make available on the secure part of their official websites the list of their fishing vessels that have received fishing authorisations referred to in Article 7 of the Control Regulation before these fishing authorisations become valid. They shall update their list in case of any changes to this list before they become effective.
2. For the period 1 January 2011 until 31 December 2011, on request Member States shall make available to the Commission a list of their fishing vessels that have received fishing authorisations for 2011. They shall inform the Commission of any changes to this list before these changes become effective.
CHAPTER III
Marking and identification of Union fishing vessels and their gear
Section 1
Marking and identification of fishing vessels
Article 6
Marking of fishing vessels
A Union fishing vessel shall be marked as follows:
(a) the letter(s) of the port or district in which the Union fishing vessel is registered and the number(s) under which it is registered shall be painted or displayed on both sides of the bow, as high above the water as possible so as to be clearly visible from the sea and the air, in a colour contrasting with the background on which they are painted;
(b) for Union fishing vessels over 10 metres length overall and less than 17 metres length overall, the height of the letters and numbers shall be at least 25 centimetres with a line thickness of at least 4 centimetres. For Union fishing vessels of 17 metres length overall or more, the height of the letters and numbers shall be at least 45 centimetres, with a line thickness of at least 6 centimetres;
(c) the flag Member State may require the international radio call sign (IRCS) or the external registration letters and numbers to be painted on top of the wheelhouse, so as to be clearly visible from the air, in a colour contrasting with the ground on which it is painted;
(d) the contrasting colours shall be white and black;
(e) the external registration letters and numbers painted or displayed on the hull of the Union fishing vessel shall not be removable, effaced, altered, illegible, covered or concealed. As from 1 January 2016, the International Maritime Organisation ship identification number scheme, as adopted by Resolution A.1078(28) on 4 December 2013 and as referred to in Chapter XI-1, Regulation 3 of the 1974 SOLAS Convention, shall apply to:
(a) Union fishing vessels or fishing vessels controlled by Union operators under a chartering arrangement, of 100 tons of Gross Tonnage or 100 tons of Gross Registered Tonnage and above, or 24 metres length overall and above, operating exclusively inside Union waters;
(b) all Union fishing vessels or fishing vessels controlled by Union operators under a chartering arrangement, of 15 metres length overall and above, operating outside Union waters;
(c) all third country fishing vessels authorised to carry out fishing activities in Union waters.
Article 7
Documents carried on board a Union fishing vessel
1. The master of a Union fishing vessel of 10 metres length overall or more shall carry on board documents, issued by a competent authority of the Member State in which it is registered, showing at least the following elements of the vessel:
(a) the name if any;
(b) the letters of the port or district in which it is registered, and the number(s) under which it is registered;
(c) the international radio call sign, if any;
(d) the names and addresses of the owner(s) and, where applicable, the charterer(s);
(e) the length overall, propulsion engine power, gross tonnage and, for Union fishing vessels which entered into service from 1 January 1987 onwards, date of entry into service.
2. On Union fishing vessels of 17 metres length overall or more with fish rooms the master shall keep on board accurate drawings with description of its fish rooms, including the indication of all access points and of their storage capacity in cubic metres.
3. The master of an EU vessel with chilled or refrigerated seawater tanks shall keep on board an up-to-date document indicating the calibration of the tanks in cubic metres at 10 centimetre intervals.
4. The documents referred to in paragraphs 2 and 3 shall be certified by the competent authority of the flag Member State. Any modification of the characteristics contained in the documents referred to in paragraphs 1 to 3, shall be certified by a competent authority of the flag Member State.
5. The documents referred to in this Article shall be presented for the purposes of control and inspection at the request of the officials.
Section 2 Marking and identification of fishing gear and crafts
Article 8 Marking of crafts and fish aggregating devices
Any craft carried on board ►M1 Union fishing vessels ◄ and fish aggregating devices shall be marked with external registration letters and numbers of the ►M1 Union fishing vessel(s) ◄ which use them.
Article 9 General rules for passive gear and beam trawls
1. The provisions contained in Articles 9 to 12 of this Regulation shall apply to ►M1 Union fishing vessels ◄ fishing in all ►M1 Union waters ◄ and the provisions contained in Articles 13 to 17 of this Regulation to ►M1 Union waters ◄ outside 12 nautical miles measured from the base lines of the coastal Member States.
2. It shall be prohibited in ►M1 Union waters ◄ as set down in paragraph 1 to carry out fishing activities with passive gear, buoys, and beam trawls, which are not marked and identifiable in accordance with the provisions of Articles 10 to 17 of this Regulation.
3. It shall be prohibited in ►M1 Union waters ◄ as set down in paragraph 1 to carry on board:
(a) beams of a beam trawl which do not display the external registration letters and numbers in accordance with Article 10 of this Regulation;
(b) passive gear which is not labelled in accordance with Article 11(2) of this Regulation;
(c) buoys which are not marked in accordance with Article 13(2) of this Regulation.
Article 10 Rules for beam trawls
The master of a ►M1 Union fishing vessel ◄ or his representative shall ensure that each assembled beam trawl carried on board or used for fishing clearly displays the external registration letters and numbers of that fishing vessel on the beam of each beam trawl assembly. Article 11
Rules for passive gear
1. The master of a Union fishing vessel or his representative shall ensure that each passive gear carried on board or used for fishing is clearly marked and identifiable in accordance with the provisions of this Article.
2. Each passive gear used for fishing shall permanently display the external registration letters and numbers displayed on the hull of the fishing vessel to which it belongs:
(a) for nets, on a label attached to the upper first row;
(b) for lines and long lines, on a label at the point of contact with the mooring buoy;
(c) for pots and traps, on a label attached to the ground rope;
(d) for passive gear extending more than 1 nautical mile, on labels attached in accordance with (a), (b) and (c) at regular intervals not exceeding 1 nautical mile so that no part of the passive gear extending more than 1 nautical mile shall be left unmarked.
Article 12
Rules for labels
1. Each label shall be:
(a) made of durable material;
(b) securely fitted to the gear;
(c) at least 65 millimetres broad;
(d) at least 75 millimetres long.
2. The label shall not be removable, effaced, altered, illegible, covered or concealed.
Article 13
Rules for buoys
1. The master of a Union fishing vessel or his representative shall ensure that two end marker buoys and intermediary marker buoys, rigged in accordance with Annex IV, are fixed to each passive gear used for fishing and are deployed in accordance with the provisions of this Section.
2. Each end marker buoy and intermediary buoy shall display the external registration letters and numbers displayed on the hull of the Union fishing vessel to which they belong and which has deployed such buoys as follows:
(a) letters and numbers shall be displayed as high above the water as possible so as to be clearly visible;
(b) in a colour contrasting with the surface on which they are displayed.
3. The letters and numbers displayed on the marker buoy shall not be effaced, altered or allowed to become illegible.
**Article 14**
**Rules for cords**
1. The cords linking the buoys to the passive gear shall be of submersible material, or shall be weighted down.
2. The cords linking the end marker buoys to each gear shall be fixed at the ends of that gear.
**Article 15**
**Rules for end marker buoys**
1. End marker buoys shall be deployed so that each end of the gear may be determined at any time.
2. The mast of each end marker buoy shall have a height of at least 1 metre above the sea level measured from the top of the float to the lower edge of the bottom most flag.
3. End marker buoys shall be coloured, but may not be red or green.
4. Each end marker buoy shall include:
(a) one or two rectangular flag(s); where two flags are required on the same buoy, the distance between them shall be at least 20 centimetres flags indicating the extremities of the same gear shall be of the same colour and may not be white and shall be of the same size;
(b) one or two light(s), which shall be yellow and give one flash each 5 seconds (F1 Y 5s), and be visible from a minimum distance of 2 nautical miles.
5. Each end marker buoy may include a top sign on the top of the buoy with one or two striped luminous bands which shall be neither red nor green and shall be at least 6 centimetres broad.
**Article 16**
**Rules for fixing of end marker buoys**
1. End marker buoys shall be fixed to passive gear in the following way:
(a) the buoy in the western sector (meaning the half compass circle from south through west to and including north) shall be rigged with two flags, two striped luminous bands, two lights and a label in accordance with Article 12 of this Regulation; (b) the buoy in the eastern sector (meaning the half compass circle from north through east to and including the south) shall be rigged with one flag one striped luminous band, one light and a label in accordance with Article 12 of this Regulation.
2. The label shall contain the information contained in Article 13(2) of this Regulation.
Article 17
Intermediary marker buoys
1. Intermediary marker buoys shall be fixed to passive gear extending more than 5 nautical miles as follows:
(a) intermediary marker buoys shall be deployed at distances of not more than 5 nautical miles so that no part of the gear extending 5 nautical miles or more shall be left unmarked;
(b) intermediary marker buoys shall be fitted with a flashing light which shall be yellow and give one flash every 5 seconds (F1 Y 5s) and be visible from a minimum distance of 2 nautical miles. They shall have the same characteristics as those of the end marker buoy in the eastern sector, except that the flag shall be white.
2. By derogation from paragraph 1, in the Baltic Sea intermediary marker buoys shall be fixed to passive gear extending more than 1 nautical mile. Intermediary marker buoys shall be deployed at distances of not more than 1 nautical mile so that no part of the gear extending 1 nautical mile or more shall be left unmarked.
Intermediary marker buoys shall have the same characteristics as those of the end marker buoy in the eastern sector except for the following:
(a) the flags shall be white;
(b) every fifth intermediary marker buoys shall be fitted with a radar reflector giving an echo of at least 2 nautical miles.
CHAPTER IV
Vessel monitoring system
Article 18
Requirement of satellite-tracking devices on Union fishing vessels
1. Without prejudice to Article 25(3) of this Regulation a Union fishing vessel subject to VMS shall not be allowed to leave a port without a fully operational satellite-tracking device installed on board.
2. When a ►M1 Union fishing vessel ◄ is in port, the satellite-tracking device may only be switched off if:
(a) prior notification has been given to the fisheries monitoring centre (FMC) of the flag Member State and the FMC of the coastal Member State; and
(b) providing that the next report shows that the ►M1 Union fishing vessel ◄ has not changed its position in relation to the previous report.
The competent authorities of the flag Member State may allow to replace the prior notification referred to in (a) with an automatic VMS message or alarm generated by the system, indicating that the ►M1 Union fishing vessel ◄ is within a pre-defined geographical area of a port.
3. This Chapter shall not apply to ►M1 Union fishing vessels ◄ used exclusively for the exploitation of aquaculture.
Article 19
Characteristics of satellite-tracking devices
1. The satellite-tracking device installed on board ►M1 Union fishing vessels ◄ shall ensure the automatic transmission to the FMC of the flag Member State, at regular intervals, of data relating to:
(a) the fishing vessel identification;
(b) the most recent geographical position of the fishing vessel, with a position error which shall be less than 500 metres, with a confidence interval of 99 %;
(c) the date and time (expressed in Coordinated Universal Time (UTC)) of the fixing of the said position of the fishing vessel; and
(d) the instant speed and course of the fishing vessel.
2. Member States shall ensure that satellite-tracking devices are protected against input or output of false positions and cannot be manually over-ridden.
Article 20
Responsibilities of the masters concerning the satellite-tracking devices
1. The masters of a ►M1 Union fishing vessel ◄ shall ensure that the satellite-tracking devices are fully operational at all times and that the data referred to in Article 19(1) of this Regulation are transmitted.
2. Without prejudice to Article 26(1) of this Regulation, the master of a ►M1 Union fishing vessel ◄ shall ensure in particular that:
(a) the data are not altered in any way; (b) the antenna or the antennas connected to the satellite tracking devices are not obstructed, disconnected or blocked in any way;
(c) the power supply of the satellite-tracking devices is not interrupted in any way; and
(d) the satellite-tracking device is not removed from the fishing vessel.
3. It shall be prohibited to destroy, damage, render inoperative or otherwise interfere with the satellite-tracking device unless the competent authorities of the flag Member State have authorised its repair or replacement.
Article 21
Control measures to be adopted by flag Member States
Each flag Member State shall ensure the continuous and systematic monitoring and control of the accuracy of the data referred to in Article 19 of this Regulation, and shall act promptly whenever data are found to be inaccurate or incomplete.
Article 22
Frequency of data transmission
1. Each Member State shall ensure that its FMC receives, at least once every 2 hours, through the VMS the information referred to in Article 19 of this Regulation concerning its fishing vessels. The FMC may require the information at shorter time intervals.
2. The FMC shall have the capacity of polling the actual position of each of its fishing vessel.
Article 23
Monitoring of entry into and exit from specific areas
Each Member State shall ensure that through VMS data its FMC monitors, as regards its fishing vessels, date and time of entry into and exit from:
(a) any maritime area where specific rules on access to waters and resources apply;
(b) fishing restricted areas referred to in Article 50 of the Control Regulation;
(c) regulatory areas of the Regional Fisheries Management Organisations to which the European Union or certain Member States are a party;
(d) waters under the sovereignty and jurisdiction of a third country. Article 24
Transmission of data to the coastal Member State
1. The FMC of each flag Member State shall ensure the automatic transmission to the FMC of a coastal Member State of the data provided in accordance with Article 19 of this Regulation concerning its fishing vessels during the time they are in the waters of the coastal Member State. Such data shall be forwarded to the FMC of the coastal State immediately after the receipt at the FMC of the flag Member State.
2. Coastal Member States monitoring jointly an area may specify a common destination for the transmission of the data to be provided in accordance with Article 19 of this Regulation. They shall inform the Commission and the other Member States thereof.
3. Each Member State shall transmit to the other Member States and the Commission in a, where possible electronic, format compatible with the World Geodetic System 1984 (WGS 84) a comprehensive list of the latitude and longitude coordinates which delineate its exclusive economic zone or exclusive fishery zone. It shall also communicate to the other Member States and the Commission any changes of these coordinates. Alternatively Member States may publish this list on the website referred to in Article 115 of the Control Regulation.
4. Member States shall ensure effective coordination between their competent authorities regarding the transmission of VMS data in accordance with Article 9(3) of the Control Regulation, including through the establishment of clear and documented procedures for this purpose.
Article 25
Technical failure or non-functioning of the satellite-tracking device
1. In the event of a technical failure or non-functioning of the satellite-tracking device fitted on board a Union fishing vessel, the master or his representative shall, starting from the time that the event was detected or from the time that he was informed in accordance with paragraph 4 or Article 26(1) of this Regulation, communicate every 4 hours, to the FMC of the flag Member State the up-to-date geographical coordinates of the fishing vessel by appropriate telecommunication means. Member States shall decide on the telecommunication means to be used and indicate them on the website referred to in Article 115 of the Control Regulation.
2. The FMC of the flag Member State shall enter the geographical positions referred to in paragraph 1 into the VMS database without delay on their receipt. The manual VMS data shall be clearly distinguishable in a database from automatic messages. Where appropriate, those manual VMS data shall be transmitted without delay to coastal Member States.
3. Following a technical failure or non-functioning of the satellite-tracking device, a M1 Union fishing vessel may only leave port once the satellite-tracking device fitted on board is fully functioning to the satisfaction of the competent authorities of the flag state. By derogation the FMC of the flag Member State may authorise its fishing vessels to leave the port with a non-functioning satellite-tracking device for its repair or replacement.
4. The competent authorities of the flag Member State or, where appropriate, of the coastal Member State shall seek to inform the master of or the person responsible for the vessel or their representative when the satellite-tracking device fitted on board a M1 Union fishing vessel appears to be defective or not fully functioning.
5. The removal of the satellite-tracking device for repair or replacement shall be subject to the approval of the competent authorities of the flag Member State.
Article 26
Non-receipt of data
1. When the FMC of a flag Member State has not received data transmissions in accordance with Article 22 or Article 25(1) of this Regulation for 12 consecutive hours it shall notify the master or the operator of the M1 Union fishing vessel or their representative(s) thereof as soon as possible. If, in respect of an EU particular fishing vessel, that situation occurs more than three times within a period of a calendar year, the flag Member State shall ensure that the satellite-tracking device of the fishing vessel is thoroughly checked. The flag Member State shall investigate the matter in order to establish whether the equipment has been tampered with. By way of derogation from Article 20(2)(d) of this Regulation, that investigation may entail the removal of such equipment for examination.
2. When the FMC of a flag Member State has not received data transmissions for 12 hours in accordance with Article 22 or Article 25(1) of this Regulation and the last received position was from within the waters of another Member State it shall notify the FMC of that coastal Member State thereof as soon as possible.
3. When the competent authorities of a coastal Member State observe a M1 Union fishing vessel in its waters and have not received data in accordance with Article 24(1) or 25(2) of this Regulation, they shall notify the master of the fishing vessel and the FMC of the flag Member State thereof.
Article 27
Monitoring and recording of the fishing activities
1. Member States shall use the data received pursuant to Article 22, Article 24(1) and Article 25 of this Regulation for the effective monitoring of the activities of fishing vessels.
2. Flag Member States shall:
(a) ensure that data received according to this Chapter are recorded in computer-readable form and safely stored in computerised databases for at least 3 years;
(b) take all necessary measures to ensure that they are only used for official purposes; and
(c) take all necessary technical measures to protect such data against any accidental or illicit destruction, accidental loss, deterioration, distribution or unauthorised consultation.
Article 28
Access to data by the Commission
The Commission may request Member States in accordance with Article 111(1)(a) of the Control Regulation to ensure the automatic transmission, to the Commission or to the body designated by it, of the data provided in accordance with Article 19 of this Regulation concerning a specific group of fishing vessels and during a specific time. Such data shall be forwarded to the Commission or to the body designated by it immediately after the receipt at the FMC of the flag Member State.
TITLE III
CONTROL OF FISHERIES
CHAPTER I
Fishing logbook, transhipment declaration and landing declaration in paper format
Section 1
Completion and submission of a fishing logbook, landing declaration and transhipment declaration in paper format
Article 29
Union fishing vessels subject to the completion and submission of a fishing logbook and transhipment/landing declaration in paper format
1. Without prejudice to specific provisions contained in multi-annual plans, the master of a Union fishing vessel of 10 metres length overall or more that is not subject to the electronic completion and transmission of fishing logbook data, transhipment declarations and landing declarations, shall complete and submit the fishing logbook data, transhipment declarations and landing declarations referred to in Articles 14, 21 and 23 of the Control Regulation in paper format. These transhipment declarations and landing declarations may also be completed and submitted by the representative of the master on his behalf.
2. The requirement to complete and submit the fishing logbook data, transhipment declarations and landing declarations in paper format shall also apply to ►M1 Union fishing vessels ◄ whose length overall is less than 10 metres when they are required by their flag Member State to keep a fishing logbook and submit transhipment and/or landing declarations in accordance with Articles 16(3) and 25(3) of the Control Regulation.
▼M1
Article 30
Models for fishing log-books, transhipment declarations and landing declarations in paper format
1. In Union waters, the fishing logbook, transhipment declaration and landing declaration in paper format shall be completed and submitted by masters of Union fishing vessels in accordance with the model in Annex VI.
2. By way of the derogation from paragraph 1, for Union fishing vessels carrying out daily fishing trips in Mediterranean Sea, the fishing logbook, transhipment declaration and landing declaration in paper format may be completed and submitted by masters of Union fishing vessels in accordance with the model in Annex VII.
3. When Union fishing vessels are carrying out fishing activities in the waters of a third country, in waters regulated by a Regional Fisheries Management Organisation or in waters outside Union waters not regulated by a Regional Fisheries Management Organisation, the fishing logbook, transhipment declaration and landing declaration in paper format shall be completed and submitted by masters of Union fishing vessels in accordance with Article 31 of this Regulation and the models in Annexes VI and VII, unless the third country or the rules of the Regional Fisheries Management Organisation concerned specifically require the use of a different kind of fishing logbook, transhipment declaration or landing declaration. If the third country does not specify a particular fishing logbook, transhipment declaration or landing declaration, but does require data elements different from those required by the Union rules, such data elements shall be recorded.
4. Masters of Union fishing vessels not subject to Article 15 of the Control Regulation may continue to use until 31 December 2017, paper format for fishing logbook, transhipment declaration and landing declaration printed prior to 1 January 2016.
▼B
Article 31
Instructions for the completion and submission of fishing logbooks, transhipment declarations and landing declarations in paper format
1. The fishing logbook, transhipment declaration and landing declaration in paper format shall be completed and submitted in accordance with the instructions set out in Annex X.
2. Where the instructions set out in Annex X state that the application of a rule is optional, the flag Member State may make it mandatory.
3. All entries in the fishing logbook, transhipment declaration or landing declaration shall be legible and indelible. No entry shall be erased or altered. If a mistake is made the incorrect entry shall be crossed out with a single line and the new correct entry shall be written and initialled by the master. Each line shall be initialled by the master.
4. The master of the Union fishing vessel or, for transhipment declarations and landing declarations, his representative shall certify with his initials or signature that the entries in the fishing logbook, transhipment declaration and landing declaration are correct.
Article 32
Deadlines for the submission of a fishing logbook, transhipment declaration and a landing declaration in paper format
1. When a Union fishing vessel has made a landing in a port or a transhipment in a port or in a place close to the shore of its flag Member State, its master shall submit the original(s) of the fishing logbook, transhipment declaration and landing declaration as soon as possible and not later than 48 hours after completion of transhipment or landing to the competent authorities of the Member State concerned. The original(s) of such a transhipment declaration and landing declaration may also be submitted by the representative of the master on his behalf.
2. When no catches are landed after a fishing trip, the master shall submit the original(s) of the fishing logbook and transhipment declaration as soon as possible and not later than 48 hours after arrival in port. The original(s) of such a transhipment declaration may also be submitted by the representative of the master on his behalf.
3. When a Union fishing vessel has made a transhipment in a port or in a place close to the shore or a landing in a port of a Member State other than its flag Member State, it shall submit the first copy (copies) of the fishing logbook, transhipment declaration and landing declaration as soon as possible and not later than 48 hours after transhipment or landing to the competent authorities of the Member State in which the transhipment or landing takes place. The original(s) of the fishing logbook, transhipment declaration and landing declaration shall be dispatched as soon as possible and not later than 48 hours after transhipment or landing to the competent authorities of the flag Member State.
4. When a Union fishing vessel has made a transhipment in a port or in the waters of a third country or on the high seas or a landing in a port of a third country, it shall dispatch the original(s) of the fishing logbook, transhipment declaration and landing declaration as soon as possible and not later than 48 hours after the transhipment or landing to the competent authorities of the flag Member State.
5. When a third country or the rules of a Regional Fisheries Management Organisation require a different kind of fishing logbook, transhipment declaration or landing declaration from the one in Annex VI the master of the Union fishing vessel shall submit a copy of that document to his competent authorities as soon as possible and not later than 48 hours after transhipment or landing.
Section 2 Specific rules for the fishing logbook in paper format
Article 33 Completion of fishing logbook in paper format
1. The paper fishing logbook shall be completed with all obligatory information even when there are no catches:
(a) daily by not later than 24.00 and before entering the port;
(b) at the time of any inspection at sea;
(c) at the time of events defined in the Community legislation or by the flag Member State.
2. A new line in the paper fishing logbook shall be filled in:
(a) for each day at sea;
(b) when fishing in a new ICES Division or another fishing zone the same day;
(c) when entering fishing effort data.
3. A new page in the paper fishing logbook shall be filled in:
(a) when using different gear, or a net of a different mesh size range, to that of the previous gear used;
(b) for any fishing done after a transhipment or an intermediate landing;
(c) if the number of columns is insufficient;
(d) on departure from a port when no landing has taken place.
4. On departure from a port, or following completion of a transhipment operation, and when catches remain on board, the quantities of each species shall be indicated on a new fishing logbook page.
5. The codes given in Annex XI shall apply to indicate, under the appropriate headings of the paper format fishing logbook, the fishing gear used. Section 3
Specific rules for the transhipment declaration and landing declaration in paper format
Article 34
Handing over of a transhipment declaration in paper format
1. In the case of a transhipment operation between two ►M1 Union fishing vessels ◄ on completion of a transhipment operation the master of the transhipping fishing vessel or his representative shall hand over a copy of his vessel’s paper transhipment declaration to the master of the receiving vessel or his representative. The master of the receiving vessel or his representative on completion of transhipment operation shall also hand over a copy of his vessel’s paper transhipment declaration to the master of the transhipping vessel or his representative.
2. The copies referred to in paragraph 1 shall be presented for the purposes of control and inspection at the request of an official.
Article 35
Signing of the landing declaration
Each page of the landing declaration shall be signed prior to submission by the master or his representative.
CHAPTER II
Fishing logbook, landing declaration and transhipment declaration in electronic format
Section 1
Completion and transmission of a fishing logbook, landing declaration and transhipment declaration data in electronic format
Article 36
Requirement of electronic recording and reporting system on ►M1 Union fishing vessels ◄
1. Without prejudice to Article 39(4) of this Regulation a ►M1 Union fishing vessel ◄ subject to electronic completion and transmission of fishing logbook, transhipment declaration and landing declaration in accordance with Articles 15, 21 and 24 of the Control Regulation shall not be allowed to leave port without a fully operational electronic recording and reporting system installed on board.
2. This Chapter shall not apply to ►M1 Union fishing vessels ◄ used exclusively for the exploitation of aquaculture. Article 37
Format for transmission of data from a ►M1 Union fishing vessel ◄ to the competent authority of its flag State
Member States shall determine the format to be used between ►M1 Union fishing vessels ◄ flying their flags and their competent authorities for the completion and transmission of fishing logbook, transhipment declaration and landing declaration data as referred to in Articles 15, 21 and 24 of the Control Regulation.
The fishing logbook, transhipment declaration and landing declaration in electronic format shall be completed in accordance with the instructions set out in Annex X.
Article 38
Return messages
1. Return messages shall be issued to the ►M1 Union fishing vessels ◄ for each transmission of fishing logbook, transhipment, prior notification and landing data. The return message shall contain an acknowledgement of receipt.
2. The master of a ►M1 Union fishing vessel ◄ shall retain the return message until the end of the fishing trip.
Article 39
Provisions in the event of technical failure or non-functioning of electronic recording and reporting systems
1. In the event of a technical failure or non-functioning of the electronic recording and reporting system fitted on board a ►M1 Union fishing vessel ◄, the master of the fishing vessel or his representative shall, starting from the time that the event was detected or from the time that he was informed in accordance with Article 40(1) of this Regulation, communicate fishing logbook, transhipment declaration and landing declaration data to the competent authorities of the flag Member State by appropriate telecommunications means on a daily basis and no later than 24.00 even when there are no catches. Member States shall decide on the telecommunication means to be used and indicate them on the website referred to in Article 115 of the Control Regulation.
2. In the event of a technical failure or non-functioning of the electronic recording and reporting system fishing logbook and transhipment declaration data shall also be sent:
(a) at the request of the competent authority of the flag State;
(b) immediately after the last fishing operation or after the transhipment has been completed; (c) before entering into port;
(d) at the time of any inspection at sea;
(e) at the time of events defined in Community legislation or by the flag State.
Prior notification and landing declaration data shall also be sent in the cases referred to in (a) and (e).
3. The competent authorities of the flag Member State shall enter the data referred to in paragraph 1 into the electronic data base without delay on their receipt.
4. Following a technical failure or non-functioning of its electronic recording and reporting system, a Union fishing vessel may only leave port once the recording and reporting system fitted on board is fully functioning to the satisfaction of the competent authorities of the flag Member State or is otherwise authorised to leave by the competent authorities of the flag Member State. The flag Member State shall immediately notify the coastal Member State when it has authorised one of its fishing vessels to leave a port in the coastal Member State with a non-functioning electronic recording and reporting system.
5. The removal of the electronic recording and reporting system for repair or replacement shall be subject to the approval of the competent authorities of the flag Member State.
Article 40
Non-receipt of data
1. When the competent authorities of a flag Member State have not received data transmissions in accordance with Articles 15, 22 and 24 of the Control Regulation they shall notify the master or the operator of the Union fishing vessel or their representative(s) thereof as soon as possible. If, in respect of a particular Union fishing vessel or their representative, that situation occurs more than three times within a period of calendar year, the flag Member State shall ensure that the electronic recording and reporting system of the fishing vessel is thoroughly checked. The flag Member State shall investigate the matter in order to establish why data have not been received and shall take appropriate measures.
2. When the competent authorities of a flag Member State have not received data transmissions in accordance with Articles 15, 22 and 24 of the Control Regulation and the last position received through the Vessel Monitoring System was from within the waters of a coastal Member State they shall notify the competent authorities of that coastal Member State thereof as soon as possible.
3. The master or the operator of the Union fishing vessel or their representative shall send all data which have not yet been transmitted and for which a notification was received in accordance with paragraph 1 to the competent authorities of the flag Member State immediately on receipt of the notification. Article 41
Data access failure
1. When the competent authorities of a coastal Member State observe a Union fishing vessel of another Member State in their waters and cannot access fishing logbook or transhipment data in accordance with Article 44 of this Regulation they shall request the competent authorities of the flag Member State to ensure access to those data.
2. If the access referred to in paragraph 1 is not ensured within 4 hours of the request, the coastal Member State shall notify the flag Member State. On receipt of the notification the flag Member State shall immediately send the data to the coastal Member State by any available electronic means.
3. If the coastal Member State does not receive the data referred to in paragraph 2, the master or operator of the Union fishing vessel or their representative shall send the data and a copy of the return message referred to in Article 38 of this Regulation to the competent authorities of the coastal Member State on request and by any available, if possible electronic, means. Member States shall decide on the means to be used and shall indicate them on the website referred to in Article 115 of the Control Regulation.
4. If the master or the operator of the Union fishing vessel or their representative can not provide the competent authorities of the coastal Member State with a copy of the return message referred to in Article 38 of this Regulation, fishing activities in the waters of the coastal Member State by the fishing vessel concerned shall be prohibited until the master, the operator of the fishing vessel or his representative can provide a copy of the return message or information referred to in Article 14(1) of the Control Regulation to the said authorities.
Article 42
Data on the functioning of the electronic recording and reporting system
1. Member States shall maintain databases on the functioning of their electronic recording and reporting system. Those databases shall contain at least and be capable to generate automatically the following information:
(a) the list of their fishing vessels whose electronic recording and reporting systems have experienced technical failure or have failed to function;
(b) the number of vessels that have not made daily electronic fishing logbook transmissions and the average number of electronic fishing logbook transmissions received per fishing vessel, broken down by flag Member State;
(c) the number of transhipment declaration, landing declaration, takeover declaration and sales note transmissions received, broken down by flag Member State. 2. Summaries of information generated according to paragraph 1 shall be sent to the Commission at its request. Alternatively this information may also be made available on the secure website in a format and at time intervals to be decided by the Commission after consultation with Member States.
Article 43
Mandatory data in the exchange of information between Member States
Data elements that must be recorded by masters of Union fishing vessels in the fishing logbook, transhipment declaration, prior notification and landing declaration according to Union rules shall also be mandatory in exchanges between Member States.
Article 44
Access to data
1. When a fishing vessel, flying the flag of a Member State, conducts fishing operations in the Union waters of a coastal Member State, the flag State shall immediately upon receipt forward the mandatory electronic fishing logbook data of the current fishing trip, starting with the last departure from port, to that coastal Member State.
2. As long as a fishing vessel flying the flag of a Member State is fishing in the Union waters of another coastal Member State, the flag Member State shall immediately upon receipt forward all the mandatory electronic fishing logbook data to that coastal Member State. The flag Member State shall also forward the corrections related to the current fishing trip as referred to in Article 47(2) of this Regulation.
3. When a landing or transhipment operation takes place in a port of another coastal Member State than the flag Member State, the flag Member State shall immediately upon receipt forward all the mandatory electronic landing or transhipment declaration data to that coastal Member State.
4. When a flag Member State is notified that a fishing vessel flying its flag intends to enter into a port of another coastal Member State, the flag Member State shall immediately upon receipt forward the electronic prior notification to that coastal Member State.
5. When, on a fishing trip, a fishing vessel flying the flag of a Member State enters into the Union waters of another coastal Member State or when any of the data referred to in paragraph 3 or 4 related to a specific fishing trip have been transmitted to a coastal Member State, the flag Member State shall allow access to all electronic fishing activity data as referred to in Article 111(1) of the Control Regulation for that fishing trip from departure to the time when the landing was completed and shall transmit data on request of that coastal Member State. The access shall remain allowed at least 36 months after the beginning of the fishing trip.
6. The flag Member State of a fishing vessel inspected by another Member State in accordance with Article 80 of the Control Regulation shall, on request by the inspecting Member State, transmit the electronic fishing activity data as referred to in Article 111(1) of the Control Regulation for the current fishing trip of the vessel from departure to the time of the request.
7. The requests referred to in paragraphs 5 and 6 shall be electronic and shall indicate whether the reply should provide the original data with corrections or only the consolidated data. The reply to the request shall be generated automatically and transmitted without delay by the requested Member State.
8. Member States shall allow access to the vessel monitoring system, fishing logbook, transhipment declaration, prior notification and landing declaration data on request by other Member States carrying out inspection activities at sea in the context of joint deployment plans or other agreed joint inspection activities.
9. Masters of Union fishing vessels shall have secure access to their own electronic fishing logbook information, transhipment declaration data, prior notification data and landing declaration data stored in the database of the flag Member State at any time.
Article 45
Exchange of data between Member States
Member States shall:
(a) ensure that data received according to this Chapter are recorded in computer-readable form and safely stored in computerised databases for at least 3 years;
(b) take all necessary measures to ensure that the data are only used for purposes as provided for in this Regulation; and
(c) take all necessary technical measures to protect such data against any accidental or illicit destruction, accidental loss, deterioration, distribution or unauthorised consultation.
Article 46
Single authority
1. In each Member State, the single authority referred to in Article 5(5) of the Control Regulation shall be responsible for transmitting, receiving, managing and processing all data covered by this Chapter.
2. Member States shall exchange contact details of the authorities referred to in paragraph 1 and shall inform the Commission and the body designated by it thereof within 3 months after the entry into force of this Regulation.
3. Any changes in the information referred to in paragraphs 1 and 2 shall be communicated to the Commission, the body designated by it and other Member States before they become effective.
Section 2 Specific rules for the fishing logbook in electronic format
Article 47 Frequency of transmission
1. When at sea the master of a Union fishing vessel shall transmit the electronic fishing logbook information to the competent authorities of the flag Member State at least once a day and no later than 24.00 even when there are no catches. He shall also send such data:
(a) at the request of the competent authority of the flag Member State;
(b) immediately after the last fishing operation has been completed;
(c) before entering into port;
(d) at the time of any inspection at sea;
(e) at the time of events defined in EU legislation or by the flag State.
When the last fishing operation took place not more than 1 hour before the entry into port the transmissions referred to in (b) and (c) may be sent in a single message.
1a. The master of a Union fishing vessel shall send an electronic departure message to the competent authorities of the flag Member State before leaving port and before starting any other electronic transmission related to the fishing trip.
2. The master may transmit corrections to the electronic fishing logbook and transhipment declaration data up to the last transmission referred to in paragraph 1(c). Corrections shall be easily identifiable. All original electronic fishing logbook data and corrections to those data shall be stored by the competent authorities of the flag Member State.
3. The master shall keep a copy of the information referred to in paragraph 1 on board the fishing vessel for the duration of each absence from port and until the landing declaration has been submitted.
4. When a Union fishing vessel is in port, does not carry fishery products on board and the master has submitted the landing declaration for all fishing operations on the last fishing trip, transmission in accordance with paragraph 1 of this Article may be suspended subject to prior notification to the FMC of the flag Member State. Transmission shall be resumed when the Union fishing vessel leaves the port. Prior notification is not required for Union fishing vessels equipped with and transmitting data via VMS. CHAPTER III
Common rules for fishing logbooks, transhipment declarations and landing declarations in paper or electronic format
Section 1
Common rules for the determination of live weight
Article 48
Definitions
For the purpose of this Chapter the following definitions shall apply:
(1) ‘presentation’ means the form into which the fish is processed while on board of the fishing vessel and prior to landing, as described in Annex I;
(2) ‘collective presentation’ means a presentation consisting of two or more parts extracted from the same fish.
Article 49
Conversion factors
1. For the completion and submission of fishing logbooks as referred to in Articles 14 and 15 of the Control Regulation the EU conversion factors set out in Annexes XIII, XIV and XV shall apply to convert stored or processed fish weight into live fish weight. They shall apply to fisheries products on board or transhipped or landed by Union fishing vessels.
2. By way of derogation from paragraph 1, where Regional Fisheries Management Organisations, of which the European Union is a contracting party or cooperating non-contracting party, for its regulatory area or a third country with whom the European Union has an agreement to fish, for the waters under its sovereignty or jurisdiction, have established conversion factors, those factors shall apply.
3. Where no conversion factors as referred to in paragraphs 1 and 2 exist for a given species and presentation, the conversion factor adopted by the flag Member State shall apply.
4. Without prejudice to paragraph 2 the competent authorities of Member States shall use the EU conversion factors referred to in paragraph 1 when calculating the live weight of transhipments and landings in order to monitor the quota uptake.
Article 50
Calculation method
1. The fish live weight shall be obtained by multiplying the fish processed weight by the conversion factors referred to in Article 49 of this Regulation for each species and presentation.
2. In case of collective presentations, only one conversion factor corresponding to one of the parts of the collective presentation of a fish shall be used.
Section 2 Common rules for the completion and submission of the Fishing logbook
Article 51 General rules for fishing logbooks
1. The margin of tolerance referred to in Article 14(3) of the Control Regulation for the estimation of quantities in kilograms live weight of each species retained on board shall be expressed as a percentage of the fishing logbook figures.
2. For catches which are to be landed unsorted the margin of tolerance may be calculated on the basis of one or more representative samples for the total quantities kept on board.
3. For the purpose of the application of Article 14 of the Control Regulation species caught for live bait shall be considered as a species caught and kept on board.
4. The master of a Union fishing vessel crossing an effort zone where it is authorised to fish shall record and report the information referred to in Article 14(5) of the Control Regulation as applicable even if he does not carry out any fishing activities in that zone.
Section 3 Common rules for the completion and submission of transhipment/landing declarations
Article 52 Margin of tolerance in the transhipment declaration
The margin of tolerance referred to in Article 21(3) of the Control Regulation for the estimation of quantities in kilograms live weight of each species transhipped or received shall be expressed as a percentage of the transhipment declaration figures.
Article 53 Difference in transhipped catches
When a difference exists between the quantities of catches transhipped from the transhipping vessel and the quantities taken on board by the receiving vessel the higher quantity shall be considered to have been transhipped. Member States shall ensure that follow up action is taken to determine the actual weight of fishery products transhipped between the transhipping and the receiving vessel. Article 54
Completion of landing operation
When, in accordance with Article 61 of the Control Regulation, the fisheries products are transported from the place of landing before they have been weighed, the landing operation shall be regarded to have been completed for the purpose of the application of Articles 23(3) and 24(1) of the Control Regulation when the fisheries products have been weighed.
Article 55
Fishing Operations involving two or more ►M1 Union fishing vessels ◄
Without prejudice to special rules in the case of fishing operations involving two or more ►M1 Union fishing vessels ◄:
— from different Member States, or
— from the same Member State but where the catches are landed in a Member States of which they do not fly the flag,
the landed catch shall be attributed to the ►M1 Union fishing vessel ◄ landing the fisheries products.
CHAPTER IV
Sampling plans and collection of data on ►M1 Union fishing vessels ◄ not subject to fishing logbook and landing declaration requirements
Article 56
Establishment of sampling plans
The sampling plans referred to in Articles 16(2) and 25(2) of the Control Regulation for the monitoring of ►M1 Union fishing vessels ◄ not subject to fishing logbook and landing declaration requirements shall be established by Member States in accordance with this Chapter to determine the landings of a stock or group of stocks taken by such fishing vessels and, where appropriate, their fishing effort. These data shall be used for the recording of catches and, where appropriate, fishing effort as referred to in Article 33 of the Control Regulation.
Article 57
Sampling methodology
1. The sampling plans referred to in Article 56 of this Regulation shall be drawn up in accordance with Annex XVI.
2. The size of the sample to be inspected shall be determined on the basis of risk as follows:
(a) ‘very low’ risk: 3 % of the sample;
(b) ‘low’ risk: 5 % of the sample;
(c) ‘medium’ risk: 10 % of the sample; (d) ‘high’ risk: 15 % of the sample; (e) ‘very high’ risk: 20 % of the sample.
3. Catches per day of a fleet sector for a given stock shall be estimated by multiplying the total number of active Union fishing vessels of the fleet sector concerned with the average daily catch per given stock per Union fishing vessel based on the catches of the sample of the Union fishing vessels inspected.
4. Member States shall be considered to have met the requirement of a sampling plan as referred to in Article 56 of this Regulation if they collect systematically on at least a monthly basis for each of their fishing vessels not subject to fishing logbook and landing declaration requirements data:
(a) on all landings of catches of all species in kilogram, including zero landings; (b) on the statistical rectangles where these catches were taken.
CHAPTER V Control of fishing effort
Article 58 Fishing effort report
1. The fishing effort report referred to in Article 28 of the Control Regulation shall be sent in accordance with Annex XVII.
2. Where the master of a Union fishing vessel transmits a message to the competent authorities by radio in accordance with Article 28(1) of the Control Regulation, Member States shall decide on the radio stations to be used and indicate them on the website referred to in Article 115 of the Control Regulation.
CHAPTER VI Corrective measures
Article 59 General principles
In order to benefit from the corrective measures referred to in Article 37 of the Control Regulation, Member States shall notify the Commission as soon as possible and in any case within 1 month of the date of the publication in the Official Journal of a closure of a fishery in accordance with Article 36 of the Control Regulation of the extent of the prejudice suffered.
Article 60 Allocation of available fishing opportunities
1. When the prejudice has not been removed wholly or in part by action in accordance with Article 16(8) of Regulation (EU) No 1380/2013, the Commission shall, as soon as possible after receiving the information referred to in Article 59 of this Regulation, take the necessary measures with the aim of remedying the prejudice caused.
2. The measure referred to in paragraph 1 shall state:
(a) which Member States have suffered prejudice (the prejudiced Member States) and the amount of the prejudice (as reduced by any quota exchanges);
(b) where applicable, which Member States have exceeded their fishing opportunities (the exceeding Member States) and the amount of the excess of fishing opportunities (as reduced by any exchanges in accordance with Article 16(8) of Regulation (EU) No 1380/2013;
(c) where applicable, the deductions to be made from the fishing opportunities of the exceeding Member States in proportion to the exceeded fishing opportunities;
(d) where applicable, the additions to be made to the fishing opportunities of the prejudiced Member States in proportion to the prejudice suffered;
(e) where applicable the date or dates on which the additions and deductions shall take effect;
(f) where appropriate, any other necessary measure for remedying the prejudice suffered.
CHAPTER VII
Engine power
Article 61
Certification of propulsion engine power
1. The certification of the maximum continuous engine power of a new propulsion engine, a replacement propulsion engine and a propulsion engine that has been technically modified, as referred to in Article 40(1) and (2) of the Control Regulation, shall be provided in accordance with Council Regulation (EEC) No 2930/86 (1).
2. A propulsion engine shall be considered to have been technically modified as referred to in paragraph 1 when any of its main components (parts), including but not limited to, injection equipment, valves, turbocharger, pistons, cylinder liners, connecting rods, cylinder heads, have been modified or replaced by new parts with different technical specifications resulting in a modified power rating or when the engine adjustments, such as the injection settings, turbocharger configuration, or the valve timings have been modified. The nature of the technical modification shall be clearly explained in the certification referred to in paragraph 1.
3. The holder of a fishing licence shall inform the competent authorities before a new propulsion engine will be installed or before an existing propulsion engine will be replaced or technically modified.
4. This Article shall apply to fishing vessels subject to a fishing effort regime as from 1 January 2012. For other fishing vessels it shall apply as from 1 January 2013. It shall only apply to fishing vessels which have had new propulsion engines installed, or whose existing propulsion engines have been replaced or technically modified, after the entry into force of this Regulation.
(1) OJ L 274, 25.9.1986, p. 1. Article 62
Verification and sampling plan
1. For the purpose of verifying the engine power in accordance with Article 41 of the Control Regulation, Member States shall establish a sampling plan for the identification of those fishing vessels or groups of fishing vessels in their fleet with a risk of under-declaration of propulsion engine power. As a minimum, the sampling plan shall be based on following high risk criteria:
(a) fishing vessels operating in fisheries that are subject to fishing effort regimes, in particular those fishing vessels to which an individual effort allocation in kW\*days has been allocated;
(b) fishing vessels subject to limitations of vessel power resulting from national or European Union law;
(c) fishing vessels for which the ratio of vessel power (kW) to vessel tonnage (GT) is 50 % lower than the average ratio for the same type of fishing vessel, gear type and target species. For the purpose of that analysis, Member States may divide the fleet according to one or several of the following criteria:
(i) fleet segmentation or management units defined in national law;
(ii) length categories;
(iii) tonnage categories;
(iv) gears used;
(v) target species.
2. Member States may consider additional risk criteria following their own assessment.
3. Member States shall draw a list of their fishing vessels which meet one or more of the risk criteria referred to in paragraph 1 and, where appropriate, the risk criteria referred to in paragraph 2.
4. From each group of fishing vessels corresponding to one of the risk criteria referred to in paragraphs 1 and 2, Member States shall take a random sample of fishing vessels. The size of the sample shall be equal to the square root rounded to the nearest whole number of fishing vessels in the group concerned.
5. For each fishing vessel included in the random sample, Member States shall verify all technical documents as referred to in Article 41(1) of the Control Regulation in their possession. Among the other documents as referred to under letter (g) of Article 41(1) of the Control Regulation, Member States shall pay special attention to the engine maker catalogue specifications, where available.
6. This Article shall apply as from 1 January 2012. Physical verifications as referred to in Article 41(2) of the Control Regulation shall prioritise trawlers operating in a fishery subject to a fishing effort regime. Article 63
Physical verification
1. When propulsion power measurements are performed on board a fishing vessel in the framework of a physical verification of propulsion engine power as referred to in Article 41(2) of the Control Regulation, the propulsion engine power may be measured at the most accessible point between the propeller and the engine.
2. If the power of the propulsion engine is measured after the reduction gear, an appropriate correction shall be applied to the measurement in order to calculate the propulsion engine power at the engine output flange according to the definition in Article 5(1) of Regulation (EEC) No 2930/86. That correction shall take into account the power losses resulting from the gearbox on the basis of the official technical data provided by the gearbox manufacturer.
CHAPTER VIII
Control of recreational fisheries
Article 64
Establishment of sampling plans
1. Without prejudice to the use of data as referred to in paragraph 5, sampling plans to be established by Member States in accordance with Article 55(3) of the Control Regulation for the purpose of monitoring catches of stocks subject to recovery plans practised from vessels engaged in recreational fisheries shall provide for the collection of biennial data.
2. The methods used in the sampling plans shall be established clearly and shall be, as far as possible:
(a) stable over time;
(b) standardised within regions;
(c) in accordance with the quality standards established by relevant international scientific bodies and, where appropriate, by the relevant Regional Fisheries Management Organisations to which the European Union is contracting party or observer.
3. The sampling plan shall include a sampling design for the estimation of catches of stocks subject to recovery plans, the gear used and the relevant geographical area of the recovery plan concerned where these catches were taken;
4. Member States shall estimate systematically the accuracy and precision of the collected data.
5. For the purpose of the sampling plans referred to in paragraph 1 Member States may use the data collected according to the multiannual Community programme as laid down in Council Regulation (EC) No 199/2008 (1) to the extent that such data are available.
(1) OJ L 60, 5.3.2008, p. 1. 6. This provision shall not apply when a Member State has prohibited recreational fisheries of stocks subject to a recovery plan.
**Article 65**
**Notification and evaluation of sampling plans**
1. Member States shall notify their sampling plans to the Commission 12 months after the entry into force of a recovery plan. For recovery plans which are already in force at the time of entry into force of this Regulation, the sampling plan shall be notified within 12 months after entry into force of this Regulation. Amendments of the sampling plan shall be notified before they become effective.
2. In addition to the evaluation requested in Article 55(4) of the Control Regulation, the Scientific, Technical and Economic Committee for Fisheries shall also evaluate:
(a) after the notification referred to in paragraph 1 and every 5 years thereafter the conformity of the notified sampling plans with the criteria and requirements mentioned in Article 64(2) and (3) of this Regulation;
(b) the conformity of any amendments to a sampling plan referred to in paragraph 1 with the criteria and requirements mentioned in Article 64(2) and (3) of this Regulation.
3. The Scientific, Technical and Economic Committee for Fisheries shall make recommendations, where appropriate, for improving the sampling plan.
**TITLE IV**
**CONTROL OF MARKETING**
**CHAPTER I**
**Traceability**
**Article 66**
**Definition**
For the purpose of this Chapter, the following definition shall apply:
‘Fisheries and aquaculture products’ means any products which fall under Chapter 3, subheading 1212 21 00 of Chapter 12 and under headings 1604 and 1605 of Chapter 16 of the Combined Nomenclature established by Council Regulation (EEC) No 2658/87 (1).
______________________________________________________________________
(1) Council Regulation (EEC) No 2658/87 of 23 July 1987 on the tariff and statistical nomenclature and on the Common Customs Tariff (OJ L 256, 7.9.1987, p. 1) and Commission implementing Regulation (EU) No 1101/2014 of 16 October 2014 amending Annex I to Council Regulation (EEC) No 2658/87 on the tariff and statistical nomenclature and on the Common Customs Tariff (OJ L 312, 31.10.2014, p. 1). Article 67
Information on lots
1. Operators shall provide the information on fisheries and aquaculture products referred to in Article 58(5) of the Control Regulation at the moment when the fisheries and aquaculture products are put into lots and no later than the first sale.
2. In addition to paragraph 1, operators shall update the relevant information referred to in Article 58(5) of the Control Regulation which ensues from the merging or splitting of the lots of fisheries and aquaculture products after first sale, at the stage when it becomes available.
3. In case where, as a result of the merging or splitting of the lots after first sale, fisheries and aquaculture products from several fishing vessels or aquaculture production units are mixed, operators shall be able to identify each lot of origin at least by means of their identification number referred to in Article 58(5)(a) of the Control Regulation and make possible to trace them back to catching or harvesting stage, in accordance with Article 58(3) of the Control Regulation.
4. Systems and procedures referred to in Article 58(4) of the Control Regulation shall allow operators to identify the immediate supplier(s) and, except when they are final consumers, the immediate buyer(s) of the fisheries and aquaculture products.
5. The information on fisheries and aquaculture products referred to in Article 58(5) of the Control Regulation shall be provided by means of the labelling or packaging of the lot, or by means of a commercial document physically accompanying the lot. The information on the lot shall remain available at all stages of production, processing and distribution in such a way that the competent authorities of Member States have access to it at any time.
6. Operators shall affix the information on fisheries and aquaculture products referred to in Article 58(5) of the Control Regulation by way of an identification tool such as a code, barcode, electronic chip or a similar device or marking system:
(a) as from 1 January 2013, to fisheries subject to a multiannual plan;
(b) as from 1 January 2015, to other fisheries and aquaculture products.
07. Where the information referred to in Article 58(5) of the Control Regulation is provided by means of a commercial document physically accompanying the lot, at least the identification number shall be affixed to the corresponding lot.
08. Member States shall cooperate with each other to ensure that the information affixed to the lot and/or accompanying physically the lot can be accessed by the competent authorities of another Member State than the one where the fisheries or aquaculture products have been put into the lot, in particular when the information is affixed to the lot by way of an identification tool such as a code, barcode, an electronic chip or a similar device. Operators using such tools shall ensure that they are developed on the basis of internationally recognised standards and specifications.
09. The information on the date of catches referred to in Article 58(5) point (d) of the Control Regulation may include several calendar days or one period of time corresponding to several dates of catches.
10. The information on the suppliers referred to in Article 58(5) point (f) of the Control Regulation shall be the immediate supplier(s) of the operator referred in paragraph 4 of this Article. This information may be provided, where applicable, by way of the identification mark referred to in Annex II, Section I, of Regulation (EC) No 853/2004 of the European Parliament and of the Council of 29 April 2004 laying down specific hygiene rules for food of animal origin (1).
11. The information listed in points (a) to (f) of Article 58(5) of the Control Regulation shall not apply to:
(a) imported fisheries and aquaculture products which are excluded from the scope of implementation of the catch certificate in accordance with Article 12(5) of Council Regulation (EC) No 1005/2008 (2);
(b) fisheries and aquaculture products caught or farmed in freshwater; and
(c) ornamental fish, crustaceans and molluscs.
12. The information listed in Article 58(5) of the Control Regulation shall not apply to fisheries and aquaculture products falling under headings 1604 and 1605 of Chapter 16 of the Combined Nomenclature.
13. For the purposes of Article 58(5) of the Control Regulation, the information on the area where the product was caught or farmed shall be:
(a) for catches of stocks or group of stocks subject to a quota and/or a minimum size in Union legislation, the relevant geographical area, as defined in Article 4(30) of the Control Regulation;
(b) for catches of other stocks or group of stocks, fishery products caught in freshwater and aquaculture products, the name of the catch or the production area in accordance with Article 38(1) of Regulation (EU) No 1379/2013 of the European Parliament and of the Council (3).
14. The value of small quantities of fisheries and aquaculture products referred to in Article 58(8) of the Control Regulation shall be applicable to direct sales by a fishing vessel, per calendar day and per final consumer.
(1) OJ L 139, 30.4.2004, p. 55. (2) OJ L 286, 29.10.2008, p. 1. (3) Regulation (EU) No 1379/2013 of the European Parliament and of the Council of 11 December 2013 on the common organisation of the markets in fishery and aquaculture products, amending Council Regulations (EC) No 1184/2006 and (EC) No 1224/2009 and repealing Council Regulation (EC) No 104/2000 (OJ L 354, 28.12.2013, p. 1). CHAPTER II
Weighing of fisheries products
Section 1
General rules on weighing
Article 69
Scope
Without prejudice to Articles 78 - 89 of this Regulation the provisions contained in this chapter shall apply to landings from ►M1 Union fishing vessels ◄ taking place in a Member State and transhipments involving ►M1 Union fishing vessels ◄ taking place in ports or places close to the shore of a Member State as well as to the weighing of fisheries products on board ►M1 Union fishing vessels ◄ in ►M1 Union waters ◄.
Article 70
Weighing records
1. Registered buyers, registered auctions or other bodies or persons that are responsible for the first marketing or storage before first marketing of fisheries products, or where appropriate the master of the ►M1 Union fishing vessel ◄, shall record weighing carried out in accordance Articles 60 and 61 of the Control Regulation by indicating the following information:
(a) the FAO alpha-3 codes of the species weighed;
(b) result of weighing for each quantity of each species in kilograms product weight;
(c) the external identification number and the name of the fishing vessel from which the weighed quantity originates;
(d) presentation of the fisheries products weighed;
(e) date of weighing (YYYY-MM-DD).
2. Registered buyers, registered auctions or other bodies or persons that are responsible for the first marketing, or storage before first marketing of fisheries products or where appropriate the master of a ►M1 Union fishing vessel ◄, shall keep the records referred to in paragraph 1 for a period of 3 years.
Article 71
Timing of weighing
1. Where fisheries products are transhipped between ►M1 Union fishing vessels ◄ and the first landing of the transhipped fisheries products is to take place in a port outside of the European Union, the fisheries products shall be weighed before being transported away from the port or place of transhipment.
2. When the fisheries products are weighed on board a Union fishing vessel in accordance with Article 60(3) of the Control Regulation and they are weighed again on land after landing the figure resulting from the weighing on land shall be used for the purpose of Article 60(5) of the Control Regulation.
3. Without prejudice to special provisions for Union fishing vessels not subject to the electronic completion and transmission of fishing logbook data as referred to in Article 15 of the Control Regulation the Member State may require the master to hand over a copy of the log sheet to the competent authorities of the Member State of landing prior to weighing.
Article 72
Weighing systems
1. All weighing systems shall be calibrated and sealed in accordance with national systems by the competent authorities of the Member State.
2. The natural or legal person responsible for the weighing system shall maintain a record of calibration.
3. Where the weighing is carried out on a conveyor belt system a visible counter shall be fitted that records the cumulative total of the weight. The reading of the counter at the start of the weighing operation as well as the cumulative total shall be recorded. All use of the system shall be recorded by the natural or legal person responsible for the weighing in the weighing logbook.
Article 73
Weighing of frozen fisheries products
1. Without prejudice to special provisions and in particular Articles 70 and 74 of this Regulation when landed quantities of frozen fisheries products are weighed, the weight of frozen fisheries products landed in boxes or blocks may be determined per species and, where appropriate, presentation by multiplying the total number of boxes or blocks by a net average weight for a box or block calculated according to the methodology set down in Annex XVIII.
2. The natural or legal persons weighing the fisheries products shall keep a record per landing, indicating:
(a) the name and external registration letters and numbers of the vessel from which the fishery products have been landed;
(b) the species and, where appropriate, presentation of fish landed;
(c) the size of the lot and sample of pallets per species and, where appropriate, presentation in accordance with the provisions of point 1 of Annex XVIII;
(d) the weight of each pallet in the sample and the average weight of the pallets;
(e) the number of boxes or blocks on each pallet in the sample;
(f) the tare weight per box, if different from the tare weight specified in point 4 of Annex XVIII; (g) the average weight of an empty pallet in accordance with the provisions of point 3(b) of Annex XVIII;
(h) the average weight per box or block of fisheries per species and, where appropriate, presentation.
Article 74
Ice and water
1. Before weighing the registered buyer, registered auction or other bodies or persons responsible for the first marketing of fisheries products shall ensure that the fisheries products be cleaned of ice as is reasonable without causing spoilage and reducing quality.
2. Without prejudice to special rules for pelagic species referred to in Articles 78-89 of this Regulation which are landed in bulk for transfer to the point of first marketing, storage or processing, the deduction of water and ice from the total weight shall not exceed 2%. In all cases the percentage for deduction of water and ice shall be recorded on the weighing slip with the entry for weight. There shall be no deduction of water or ice for landings for industrial purposes or for non-pelagic species.
Article 75
Access by competent authorities
The competent authorities shall have full access at all times to the weighing systems, the weighing records, written declarations and all premises where the fisheries products are stored or processed.
Article 76
Sampling plans
1. The sampling plan referred to in Article 60(1) of the Control Regulation and any substantial modification thereof shall be adopted by Member States in accordance with the risk-based methodology described in Annex XIX.
2. The sampling plan referred to in Article 60(3) of the Control Regulation and any substantial modification thereof shall be adopted by Member States in accordance with the risk-based methodology described in Annex XX. If catches are weighed on board, the margin of tolerance as referred to in Articles 14(3) and 21(3) of the Control Regulation shall not apply when the figure resulting from weighing after landing is greater than the corresponding figure resulting from weighing on board.
3. When Member States are intending to adopt sampling plans as referred to in Article 60(1) and (3) of the Control Regulation, they shall preferably submit a single sampling plan covering all weighing procedures concerned for a period of 3 years within 6 months after the entry into force of this Regulation. This sampling plan may consist of different parts for different fisheries.
4. Any new sampling plans to be adopted after the date referred to in paragraph 3 or any modifications to such plans shall be submitted for approval 3 months before the end of the year concerned.
Article 77
Control plans and programmes for the weighing of fisheries products after transport from the place of landing
1. The control plan referred to in Article 61(1) of the Control Regulation and any substantial modification thereof shall be adopted by Member States in accordance with the risk-based methodology described in Annex XXI.
2. When Member States are intending to adopt control plans referred to in Article 61(1) of the Control Regulation they shall submit a single control plan per Member State covering all transports of fisheries products to be weighed after transport. Such a control plan shall be submitted within 6 months after the entry into force of this Regulation. This single control plan may consist of different parts for different fisheries.
3. The common control programme referred to in Article 61(2) of the Control Regulation and any substantial modification thereof shall be adopted by Member States in accordance with the risk-based methodology described in Annex XXII.
4. When Member States are intending to adopt common control programmes referred to in Article 61(2) of the Control Regulation, they shall submit them within 6 months after the entry into force of this Regulation.
5. Any new control plan as referred to in paragraph 2 or common control programmes as referred to in paragraph 4 to be adopted after the date referred to in paragraphs 2 and 4 or any modifications to such plans or programmes shall be submitted 3 months before the end of the year preceding the date of entry into force of that plan or programme.
Section 2
Special rules for weighing of certain pelagic species
Article 78
Scope of weighing procedures for catches of herring, mackerel, horse mackerel and blue whiting
The rules set out in this Section shall apply to the weighing of catches landed in the Union or by Union fishing vessels in third countries, of herring (Clupea harengus), mackerel (Scomber scombrus), horse mackerel (Trachurus spp.) and blue whiting (Micromesistius poutassou) or a combination thereof, taken in:
(a) for herring in ICES zones I, II, IIIa, IV, Vb, VI and VII;
(b) for mackerel in ICES zones IIa, IIIa, IV, Vb, VI, VII, VIII, IX, XII, XIV and Union waters of CECAF; (c) for horse mackerel in ICES zones IIa, IV, Vb, VI, VII, VIII, IX, X, XII, XIV and Union waters of CECAF;
(d) for blue whiting in ICES zones IIa, IIIa, IV, Vb, VI, VII, VIII, IX, X, XII, XIV and Union waters of CECAF;
when the quantities per landing exceed 10 tonnes.
Article 79
Ports of weighing catches of herring, mackerel, horse mackerel and blue whiting
1. Catches of species referred to in Article 78 of this Regulation shall be weighed immediately on landing. However, catches of these species may be weighed after transport where:
— for a destination within a Member State the Member State concerned has adopted a control plan as referred to in Article 61(1) of the Control Regulation in accordance with the risk-based methodology described in Annex XXI,
— for a destination in another Member State the Member States concerned have adopted a common control programme as referred to in Article 61(2) of the Control Regulation in accordance with the risk-based methodology described in Annex XXII,
and where this control plan or common control programme has been approved by the Commission.
2. Each Member State concerned shall establish at which of its ports the weighing of species referred to in Article 78 of this Regulation shall be carried out and shall ensure that all landings of such species are carried out in those ports. Such ports shall have:
(a) established landing and transhipment times;
(b) established landing and transhipment places;
(c) established inspection and surveillance procedures.
3. The Member States concerned shall communicate to the Commission the list of such ports and the inspection and surveillance procedures applicable in those ports, including the terms and conditions for recording and transmitting the quantities of any such species within each landing.
4. Any changes to the lists of ports and to the inspection and surveillance procedures referred to in paragraph 3 shall be transmitted to the Commission, at least 15 days before they enter into force.
5. Member States shall ensure that all landings of species referred to in Article 78 of this Regulation by their vessels outside the European Union are carried out in ports expressly chosen for the purpose of weighing by third countries which have concluded agreements with the European Union concerning such species.
6. The Commission shall transmit the information referred to in paragraphs 3 and 4 as well as the list of ports chosen by third countries to all Member States concerned.
7. The Commission and the Member States concerned shall publish the list of ports and changes thereto on their official websites.
Article 80
Entry into a port of a Member State
1. For the purpose of weighing, the master of a fishing vessel or his representative shall inform the competent authorities of the Member State in which the landing is to be made, at least 4 hours in advance of entry to port of landing concerned of the following:
(a) the port he intends to enter, the name of the vessel and its external registration letters and numbers;
(b) the estimated time of arrival at that port;
(c) the quantities in kilograms live weight of herring, mackerel, horse mackerel and blue whiting retained on board;
(d) relevance geographical area(s) where the catch was taken; the zone shall refer to the sub-area and division or sub-division in which catch limits apply pursuant to Union law.
2. The master of a Union fishing vessel which is under the obligation to record fishing logbook data electronically shall send the information referred to in paragraph 1 electronically to his flag Member State. The Member States shall transmit this information without delay to the Member State where the landing is to be made. The electronic fishing logbook data referred to in Article 15 of the Control Regulation and the information referred to in paragraph 1 may be sent in a single electronic transmission.
3. Member States may provide for a shorter notification period than laid down in paragraph 1. In such a case the Member States concerned shall inform the Commission 15 days before the entry into force of the shorter notification period. The Commission and the Member States concerned shall put this information on their websites.
Article 81
Discharge
The competent authorities of the Member State concerned shall require that the discharge of any catches referred to in Article 78 of this Regulation does not commence until it is expressly authorised. If the discharge is interrupted, permission shall be required before the discharge can recommence.
Article 82
Fishing logbook
1. Immediately upon arrival in port and before the discharge commences, the master of a fishing vessel which is not under the obligation to record fishing logbook data electronically shall present the completed relevant page or pages of the fishing logbook for inspection by the competent authority of the Member State at the port of landing.
2. The quantities of herring, mackerel, horse mackerel and blue whiting retained on board, notified prior to landing as referred to in Article 80(1)(c) of this Regulation, shall be equal to the quantities recorded in the fishing logbook after its completion.
Article 83
Publicly operated weighing facilities for fresh herring, mackerel, horse mackerel and blue whiting
Without prejudice to the provisions of Article 72 of this Regulation, where publicly operated weighing facilities are used, the natural or legal persons weighing catches referred to in Article 78 of this Regulation shall issue to the buyer a weighing slip indicating the date and time of the weighing and the identity number of the tanker. A copy of the weighing slip shall be attached to the sales note or takeover declaration.
Article 84
Privately operated weighing facilities for fresh fish
1. In addition to the provisions of Article 72 of this Regulation, the use of privately operated weighing facilities shall also be subject to the requirements of this Article.
2. The natural or legal persons weighing any catches referred to in Article 78 of this Regulation shall for each weighing system keep a bound, paginated record. This shall be completed immediately after the completion of weighing of an individual landing, and at the latest by 23.59 local time of the day of completion of weighing. This record shall indicate:
(a) the name and external registration letters and numbers of the vessel from which any catches referred to in Article 78 of this Regulation have been landed;
(b) the unique identity number of the tankers and its load in cases where any catches referred to in Article 78 of this Regulation have been transported from the port of landing before weighing in accordance with Article 79 of this Regulation. Each tanker load shall be weighed and recorded separately. However the total weight of all the tanker loads from the same vessel may be recorded as a whole in case these tanker loads are weighed consecutively and without interruption;
(c) the species of fish;
(d) the weight of each landing;
(e) the date and time of the beginning and end of the weighing.
3. Without prejudice to Article 72(3) of this Regulation, where the weighing is carried out on a conveyor belt system all use of the system shall be recorded in the bound, paginated record of weighing. Article 85
Weighing of frozen fish
When landed quantities of frozen herring, mackerel, horse mackerel and blue whiting are weighed, the weight of frozen fish landed in boxes shall be determined per species in accordance with Article 73 of this Regulation.
Article 86
Keeping of weighing records
All records of weighing provided for in Article 84(3) and Article 85 of this Regulation and the copies of any transport documents as part of a control plan or a common control programme referred to in Article 79(1) of this Regulation shall be kept for at least 3 years.
Article 87
Sales note and takeover declaration
The natural or legal persons responsible for the submission of sales notes and takeover declarations shall submit such declarations in respect of species referred to in Article 78 of this Regulation to the competent authorities of the Member State concerned on demand.
Article 88
Cross-checks
Until the establishment of a computerised database in accordance with Article 109 of the Control Regulation the competent authorities shall carry out administrative cross-checks on all landings between the following:
(a) quantities by species of herring, mackerel, horse mackerel and blue whiting indicated in the prior notification of landing, as referred to in Article 80(1)(c) of this Regulation, and the quantities recorded in the fishing logbook;
(b) quantities by species of herring, mackerel, horse mackerel and blue whiting recorded in the fishing logbook and the quantities recorded in the landing declaration;
(c) quantities by species of herring, mackerel, horse mackerel and blue whiting recorded in the landing declaration and the quantities recorded in the takeover declaration or the sales note;
(d) catch area recorded in the vessel's fishing logbook and the VMS data for the vessel concerned.
Article 89
Monitoring of weighing
1. The weighing of catches of herring, mackerel, horse mackerel and blue whiting from the vessel shall be monitored by species. In the case of vessels pumping catch ashore the weighing of the entire discharge shall be monitored. In the case of landings of frozen herring, mackerel, horse mackerel and blue whiting, all boxes shall be counted and the methodology for calculating the average net weight of boxes provided for in Annex XVIII shall be monitored.
2. The following data shall be cross-checked in addition to those referred to in Article 88 of this Regulation:
(a) quantities by species of herring, mackerel, horse mackerel and blue whiting recorded in the records of weighing at public or private facilities and the quantities by species recorded in the takeover declaration or the sales note;
(b) quantities by species of herring, mackerel, horse mackerel and blue whiting recorded in any transport documents as part of a control plan or a common control programme referred to in Article 79(1) of this Regulation;
(c) unique identity numbers of tankers entered into the record in accordance with Article 84(2)(b) of this Regulation.
3. It shall be verified that the vessel is empty of all fish subject to the special rules in this section, once the discharge has been completed.
4. All monitoring activities covered by this Article and Article 107 of this Regulation shall be documented. Such documentation shall be kept for at least 3 years.
CHAPTER III Sales notes and take-over declarations
Article 90 General rules
1. In the sales note and the take-over declaration, the number of individuals as referred to in Articles 64(1)(f) and 66(3)(e) of the Control Regulation shall be indicated if the relevant quota is managed on the basis of individuals.
2. The type of presentation referred to in Article 64(1)(g) of the Control Regulation shall include the state of presentation as set out in Annex I.
3. The price referred to in Article 64(1)(l) of the Control Regulation shall be indicated in the currency applicable in the Member State where the sale takes place.
Article 91 Formats of sales notes and take-over declarations
1. Member States shall determine the format to be used for the completion and transmission of sales notes and take-over declarations between registered buyers, registered auctions, or other bodies or persons authorised by Member States and the competent authorities as referred to in Articles 63 and 67 of the Control Regulation.
2. Data elements that must be recorded by registered buyers, registered auctions, or other bodies or persons authorised by Member States, in their sales notes or take-over declarations according to Union rules shall also be mandatory in exchanges between Member States.
3. Data as referred to in Article 111(2) of the Control Regulation transmitted for operations in the previous 36 months by the Member State in whose territory the first sale or the take-over took place shall be made available by that Member State on request by the flag Member State or the Member State in whose territory the fisheries products have been landed. The reply to the request shall be generated automatically and transmitted without delay.
4. Member States shall:
(a) ensure that data received according to this Chapter are recorded in computer-readable form and safely stored in computerised databases for at least 3 years;
(b) take all necessary measures to ensure that the data are only used for purposes as provided for in this Regulation; and
(c) take all necessary technical measures to protect such data against any accidental or illicit destruction, accidental loss, deterioration, distribution or unauthorised consultation.
5. In each Member State, the single authority referred to in Article 5(5) of the Control Regulation shall be responsible for transmitting, receiving, managing and processing all data covered by this Chapter.
6. Member States shall exchange contact details of the authorities referred to in paragraph 5 and shall inform the Commission and the body designated by it within 3 months after the entry into force of this Regulation.
7. Any changes in the information referred to in paragraphs 5 and 6 shall be communicated to the Commission, the body designated by it and other Member States before they become effective.
TITLE V
SURVEILLANCE
CHAPTER I
Surveillance reports
Article 92
Information to be recorded in the surveillance report
1. The surveillance reports referred to in Article 71(3) and (4) of the Control Regulation shall be established in accordance with Annex XXIII to this Regulation.
2. Member States shall upload the data contained in their surveillance reports into the electronic database referred to in Article 78 of the Control Regulation and provide for the functionalities referred to in Annex XXIV No 2 to this Regulation. The minimum information recorded in this database shall be that indicated in Annex XXIII. Paper surveillance reports may also additionally be scanned into the database.
3. The data from the reports shall be kept available in the database for at least 3 years.
4. Upon receipt of a surveillance report as referred to in paragraph 1 the flag Member State shall, as soon as possible, initiate an investigation on the activities of its fishing vessels to which the surveillance report refers.
5. Paragraph 1 shall apply without prejudice to the rules adopted by Regional Fisheries Management Organisations to which the European Union is a contracting party.
CHAPTER II
Control observers
Article 93
General rules concerning control observers
1. Without prejudice to special rules established by a Regional Fisheries Management Organisation or agreed with a third country, Union fishing vessels identified for the application of a control observer scheme shall carry at least one control observer on board during the time fixed by the scheme.
2. Member States shall designate control observers and ensure they are able to carry out their tasks. Member States shall ensure in particular the deployment of control observers to and from the Union fishing vessel concerned.
3. Control observers shall not perform other tasks than those established Article 73 of the Control Regulation and in Article 95 of this Regulation unless other tasks are to be performed pursuant to the EU control observer scheme or as a part of an observer programme under the scope of a Regional Fisheries Management Organisation or established in the framework of a bilateral agreement with a third country.
4. The competent authorities shall ensure that for the purposes of their mission control observers have means of communication independent from the communication system of the fishing vessel.
5. These rules do not affect the powers of the master of the fishing vessel as being in sole charge of the operations of the vessel.
Article 94
Independence of control observers
In order to be independent from the owner, the operator, the master of the Union fishing vessel and any crew member, as prescribed by Article 73(2) of the Control Regulation, control observers shall not be:
— a relative or an employee of the master of the Union fishing vessel or any other crew member, the representative of the master or the owner or the operator of the Union fishing vessel to which he is assigned, — an employee of a company controlled by the master, a crew member, the representative of the master or the owner or the operator of the ►M1 Union fishing vessel ◄ to which he is assigned.
Article 95
Duties of control observers
1. Control observers shall verify the relevant documents and record the fishing activities of the ►M1 Union fishing vessel ◄ in which they are embarked as are listed in Annex XXV.
2. Control observers on board a ►M1 Union fishing vessel ◄ shall, where appropriate, brief the officials who are about to proceed to an inspection of that fishing vessel upon arrival on board. If the facilities on board the ►M1 Union fishing vessel ◄ so allow and where appropriate the brief shall take place in a closed meeting.
3. Control observers shall draw up the report referred to in Article 73(5) of the Control Regulation using the format established in Annex XXVI. They shall forward that report without delay and in any case within 30 days following completion of an assignment to his authorities and to the competent authorities of the flag Member State. Their competent authorities shall make the report available, on request, to the coastal Member State, the Commission or the body designated by it. Copies of reports made available to other Member States may not include the locations where the catches were taken in respect of start and finish positions of each fishing operation, but may include daily totals of catch in kilograms live weight equivalent by species and ICES division or other zone as appropriate.
TITLE VI
INSPECTION
CHAPTER I
Conduct of inspections
Section 1
General provisions
Article 97
Officials authorised to conduct inspections at sea or on land
1. Officials responsible for carrying out inspections, as referred to in Article 74 of the Control Regulation shall be authorised by the competent authorities of the Member States. To this end, Member States shall provide their officials with a service card stating their identity and the capacity under which they operate. Each official on duty shall carry that service card and present it during an inspection at the earliest opportunity.
2. Member States shall confer adequate powers on their officials as necessary for the fulfilment of control, inspection and enforcement in accordance with this Regulation, and to ensure compliance with the rules of the Common Fisheries Policy.
Article 98
General principles
1. Without prejudice to provisions contained in multi-annual plans, competent authorities of Member States shall adopt a risk based approach for the selection of targets for inspection, using all available information. In accordance with this approach, officials shall carry out inspections in accordance with rules laid down in this Chapter.
2. Without prejudice to provisions contained in multi-annual plans, Member States shall coordinate their control, inspection and enforcement activities. To this end, they shall adopt and execute national control action programmes as referred to in Article 46 of the Control Regulation and common control programmes as referred to in Article 94 of the Control Regulation covering both activities at sea and on land as necessary to ensure compliance with the rules of the Common Fisheries Policy.
3. Subject to a risk based control and enforcement strategy each Member State shall carry out the necessary inspection activities in an objective way in order to prevent the retention on board, transhipment, landing, transfer to cages and farms, processing, transport, storage, marketing and stocking of fishery products originating from activities that are not in compliance with the rules of the Common Fisheries Policy.
4. Inspections shall be carried out in a manner as to prevent to the extent possible any negative impact on the hygiene and quality of the fisheries products inspected.
5. Member States shall ensure that national fisheries related information systems allow for the direct electronic exchange of information on port state inspections between themselves, other Member States, the Commission and the body designated by it as appropriate, in accordance with Article 111 of the Control Regulation.
Article 99
Duties of officials during the pre-inspection phase
During the pre-inspection phase officials shall, where possible, collect all appropriate information, including:
(a) fishing licences and fishing authorisations;
(b) VMS information corresponding to the current fishing trip;
(c) aerial surveillance, and other sightings;
(d) previous inspection records and available information on the secure part of the website of the flag Member State on the Union fishing vessel concerned. Article 100
Duties of officials authorised to conduct inspections
1. Officials authorised to conduct inspections shall verify and note the relevant items defined in the appropriate inspection module of the inspection report in Annex XXVII. For this purpose they may take pictures, video and audio recordings in accordance with national law, and, where appropriate, samples.
2. Officials shall not interfere with the right of any operator to communicate with the competent flag state authorities during inspection operations.
3. Officials shall take into account any information provided in accordance with Article 95(2) of this Regulation by a control observer on board the fishing vessel to be inspected.
4. On completion of an inspection officials shall debrief operators as appropriate on fisheries regulations relevant to the prevailing circumstances.
5. Officials shall leave as soon as possible the fishing vessel or the inspected premise following the completion of the inspection if no evidence of an apparent infringement is detected.
Article 101
Obligations of Member States, the Commission and European Fisheries Control Agency
1. The competent authorities of Member States, and, where appropriate, the Commission and the European Fisheries Control Agency, shall ensure that their officials, whilst being courteous and sensitive, conduct inspections professionally and to a high standard.
2. The competent authorities of each Member State shall establish procedures to ensure that any complaint made by operators regarding the conduct of inspections carried out by their officials is investigated in a fair and thorough manner in accordance with national law.
3. Coastal Member States may, subject to appropriate arrangements with the flag Member State of a fishing vessel, invite officials of the competent authorities of that Member State to participate in inspections of fishing vessels of that Member State, whilst those vessels are operating in waters of the coastal Member State or landing in its ports.
Section 2
Inspections at sea
Article 102
General provisions on inspections at sea
1. Any vessel used for control purposes including surveillance shall display so as to be clearly visible, a pennant or a symbol as shown in Annex XXVIII.
2. A boarding craft used to facilitate the transfer of officials carrying out inspections shall fly a similar flag or pennant of a size appropriate to that of the boarding craft to indicate that it is engaged in fishery inspection duties.
3. Persons in charge of inspection vessels shall have due regard to the rules of seamanship and manoeuvre at a safe distance from the fishing vessel in accordance with the international rules for the prevention of collisions at sea.
**Article 103**
**Boarding fishing vessels at sea**
1. Officials responsible for the conduct of the inspection shall ensure that no action is taken that may compromise the safety of the fishing vessel and its crew.
2. Officials shall not require the master of a fishing vessel that is being boarded or disembarked to stop or manoeuvre during fishing, or to stop the shooting or hauling of fishing gear. Officials may, however, require the interruption or delay of the shooting of gear to permit safe boarding or disembarkation until they have boarded or disembarked the fishing vessel. In the case of boarding this delay shall not exceed 30 minutes after officials have boarded the fishing vessel unless an infringement has been detected. This provision does not affect the possibility of officials to require the gear to be hauled for inspection.
**Article 104**
**On board activities**
1. When carrying out their inspection, officials shall verify and note all appropriate items provided for in the appropriate inspection report module set out in Annex XXVII to this Regulation.
2. Officials may require the master to haul a fishing gear for inspection.
3. Inspection teams shall normally be comprised of two officials. Additional officials may supplement inspections teams when necessary.
4. The duration of an inspection shall not exceed 4 hours, or until the net is hauled in, and the net and catches are inspected, whichever is longer. It shall not apply in the case that an apparent infringement is detected or where the officials need further information.
5. In the case of an apparent infringement being detected, identification marks and seals may be affixed securely to any part of the fishing gear or the fishing vessel, including containers of fisheries products and the compartment(s) in which they may be stowed, and the official(s) may remain on board for the time necessary for the completion of appropriate measures to ensure security and continuity of all the evidence of the apparent infringement. Section 3 Inspections in port
Article 105 Preparation of inspection
1. Without prejudice to benchmarks defined in specific control and inspection programmes and in Article 9 of Regulation (EC) No 1005/2008, an inspection of a fishing vessel shall take place in port or on landing, on the following occasions:
(a) routinely subject to a sampling methodology based on a risk-based management; or
(b) where it is suspected of failing to comply with the rules of the Common Fisheries Policy.
2. In cases referred to in paragraph 1(b) and without prejudice to the last sentence of Article 106(2) of this Regulation the competent authorities of the Member States shall ensure that the fishing vessel to be inspected in port is met by their officials on arrival.
3. Paragraph 1 does not exclude the possibility for Member States to undertake random inspections.
Article 106 Inspections in port
1. When carrying out inspections officials shall verify and note all appropriate items listed in the corresponding inspection report module set out in Annex XXVII to this Regulation. Officials shall have due regard to any specific requirements which apply to the inspected fishing vessel, in particular to relevant provisions in multi-annual plans.
2. When carrying out an inspection of a landing officials shall monitor the whole landing process from the beginning to the end of the respective operation. A cross-check shall be carried out between the quantities by species recorded in the prior notification of arrival to land fishery products, the quantities by species recorded in the fishing logbook and the quantities by species landed or transhipped whichever is applicable. This provision shall not exclude the possibility of an inspection taking place after the start of the landing.
3. Member States shall ensure the effective inspection and control of premises used in connection with fishing activities and subsequent processing of fisheries products.
Article 107 Inspection of certain pelagic landings
For landings of herring, mackerel, horse mackerel and blue whiting as referred to in Article 78 of this Regulation the competent authorities of a Member State shall ensure that at least 7.5 % of the quantities landed for each species and at least 5 % of the landings are fully inspected. Section 4 Transport inspections
Article 108 General principles
1. Without prejudice to provisions contained in multi-annual plans, transport inspections may take place anywhere and at anytime from the point of landing to the arrival of the fisheries products at the place of sale or processing. In carrying out inspections, the necessary measures shall be taken as to ensure the maintenance of the cold chain of the fisheries products inspected.
2. Without prejudice to provisions contained in multi-annual plans and national control programmes or specific control and inspection programmes, transport inspections shall include, wherever possible, a physical examination of the products transported.
3. The physical examination of the transported fishery products shall involve the taking of a sample representative of the different sections of the lot or lots transported.
4. When carrying out a transport, inspection officials shall verify and note all items referred to in Article 68(5) of the Control Regulation and all appropriate items in the report module set out in Annex XXVII to this Regulation. This shall include verification that the quantities of fisheries products transported correspond to the details entered on the transport document.
Article 109 Transport vehicles sealed
1. When a vehicle or a container has been sealed to avoid manipulation of the cargo, competent authorities of Member States shall ensure that serial numbers of seals are noted on the transport document. Officials shall inspect that the seals are intact and that the serial numbers correspond with the details on the transport document.
2. Where seals are removed to facilitate inspection of the cargo before the cargo arrives at the final destination, officials shall replace the original seal with a fresh seal, recording the seal details in the transport document and the reasons for the removal of the original seal.
Section 5 Market inspections
Article 110 General principles
Officials shall verify and note all appropriate items listed in the corresponding inspection module in Annex XXVII to this Regulation when visiting cold stores, gross and retail markets, restaurants or any other premises where fish is stored and/or sold after landing has taken place. Article 111
Additional methodologies and technologies
In addition to the items listed in Annex XXVII, Member States may make use of available methodologies and technologies for the identification and validation of fisheries products, their source or origin and the suppliers and catching vessels or production units.
Article 112
Control of fisheries products subject to storage mechanism
Officials shall verify that fisheries products subject to the storage mechanism referred to in Article 30 of Regulation (EU) No 1379/2013 fulfil the conditions laid down in that Article 30 and in Article 67 of Regulation (EU) No 508/014 of the European Parliament and of the Council (1).
CHAPTER II
Duties of operators
Article 113
General obligations of operators
1. All operators acting under the jurisdiction of a Member State may be subject to an inspection regarding their obligations under rules of the Common Fishery Policy.
2. All operators subject to an inspection shall:
(a) facilitate and provide officials on request with the necessary information and documents, including, where possible, copies thereof, or access to relevant databases, regarding fishing activities as required to be completed and held in electronic or paper format in accordance with the rules of the Common Fisheries Policy;
(b) facilitate access to all parts of vessels, premises and any transport means, including aircraft and hovercraft used in connection or associated with fishing and processing activities;
(c) ensure at any moment the safety of officials, and actively assist and cooperate with the officials in the performance of their inspection duties;
(1) Regulation (EU) No 508/2014 of the European Parliament and of the Council of 15 May 2014 on the European Maritime and Fisheries Fund and repealing Council Regulations (EC) No 2328/2003, (EC) No 861/2006, (EC) No 1198/2006 and (EC) No 791/2007 and Regulation (EU) No 1255/2011 of the European Parliament and of the Council (OJ L 149, 20.5.2014, p. 1). (d) not obstruct, intimidate or interfere, not cause any other person to obstruct, intimidate or interfere, and prevent any other person to obstruct, intimidate or interfere with officials carrying out the inspection;
(e) provide, where possible, a meeting facility in isolation for a briefing of officials by a control observer as referred to in Article 95(2) of this Regulation.
Article 114
Obligations of the master during inspections
1. The master of a fishing vessel which is being inspected or his representative shall:
(a) facilitate safe and effective boarding of officials in accordance with good seamanship when the appropriate signal of the International Code of Signals is given or when the intention to board is established through radio communication by a vessel or helicopter carrying an official;
(b) provide a boarding ladder meeting the requirements of Annex XXIX to facilitate safe and convenient access to any vessel which requires a climb of 1.5 metres or more;
(c) facilitate the officials to perform their inspection duties, providing such assistance as is requested and is reasonable;
(d) permit the official(s) to communicate with the authorities of the flag State, the coastal State and the inspecting State;
(e) alert officials to particular safety hazards on board fishing vessels;
(f) provide access by officials to all areas of the vessel, all processed or unprocessed catches, all fishing gears and all relevant information and documents;
(g) facilitate safe disembarkation by officials on completion of the inspection.
2. Masters shall not be required to reveal commercially sensitive information over open radio channels.
CHAPTER III
Inspection report
Article 115
Common rules concerning inspection reports
1. Without prejudice to special rules in the framework of Regional Fisheries Management Organisations, inspection reports as referred to in Article 76 of the Control Regulation shall include the relevant information contained in the appropriate module established in Annex XXVII. The reports shall be completed by officials during the inspection or as soon as possible after the completion of the inspection.
2. When an apparent infringement is detected in the course of an inspection, the legal and material elements together with any other information relevant to the infringement shall be included in the inspection report. When several infringements are detected in the course of an inspection, relevant elements of each infringement shall be noted in the inspection report.
3. Officials shall communicate their findings to the natural person in charge of the fishing vessel, vehicle, aircraft, hovercraft or premises being inspected (operator) at the end of the inspection. The operator shall have the possibility to comment on the inspection and its findings. Comments by the operator shall be noted in the inspection report. In case where officials do not speak the same language as the inspected operator, they shall take appropriate measures to make understandable their findings.
4. If required, the operator shall have the right to contact his representative or the competent authorities of his flag State, if serious difficulties arise regarding comprehension of the outcomes of the inspection and of the ensuing report.
5. The format for electronic transmission referred to in Article 76(1) of the Control Regulation shall be decided after consultation between the Member States and the Commission.
Article 116 Completion of inspection reports
1. When the inspection report is established manually on a paper format, it shall be legible, indelible and clearly recorded. No entry in the report shall be erased or altered. If a mistake is made in a manually established report, the incorrect entry shall be struck out neatly and shall be initialled by the official concerned.
2. The official responsible for the inspection shall sign the report. The operator shall be invited to sign the report. Without prejudice to national law his/her signature shall constitute an acknowledgement of the report and shall not be regarded as an acceptance of the contents therein.
3. Officials may establish inspection reports referred to in Article 115 of this Regulation by electronic means.
Article 117 Copy of the inspection report
A copy of the inspection report referred to in Article 116 of this Regulation shall be sent to the operator no later than 15 working days after the completion of the inspection and in accordance with the national law of the Member State having sovereignty or jurisdiction at the place of inspection. If an infringement is detected, disclosure of the report shall be subject to the laws on disclosure of information in the Member State concerned. CHAPTER IV
Electronic database
Article 118
Electronic database
1. Member States shall include in their national control programmes procedures on the recording by their officials of inspection reports in a paper or an electronic format. These reports shall be entered into the electronic database referred to in Article 78 of the Control Regulation and provide for the functionalities referred to in Annex XXIV No. 2 to this Regulation. The minimum information contained in the electronic database shall be those items noted in accordance with Article 115(1) of this Regulation and indicated as compulsory in Annex XXVII. Paper inspection reports shall also be scanned into the database.
2. The database shall be accessible for the Commission and the body designated by it, in accordance with the procedures described in Articles 114, 115 and 116 of the Control Regulation. The relevant data in the database shall also be accessible to other Member States in the context of a joint deployment plan.
3. The data from the inspection reports shall be kept available in the database for at least 3 years.
CHAPTER V
Union inspectors
Article 119
Notification of Union inspectors
1. Member States and the European Fisheries Control Agency shall notify the Commission electronically within 3 months after the entry into force of this Regulation of the names of their officials to be included in the list of Union inspectors referred to in Article 79 of the Control Regulation.
2. Officials to be included in the list shall:
(a) have a thorough experience in the field of fisheries control and inspection;
(b) have an in-depth knowledge of fisheries legislation of the European Union;
(c) have a thorough knowledge of one of the official languages of the European Union and a satisfactory knowledge of a second;
(d) be physically fit to perform their duties;
(e) have, where appropriate, received the necessary training with regard to the safety at sea. Article 120
List of Union inspectors
1. On the basis of the notifications of Member States and the European Fisheries Control Agency the Commission shall adopt a list of Union inspectors 6 months after the entry into force of this Regulation.
2. After the establishment of the initial list, Member States and the European Fisheries Control Agency shall notify to the Commission by October each year any amendment to the list which they wish to introduce for the following calendar year. The Commission shall amend the list accordingly by 31 December each year.
3. The list and amendment thereto shall be published on the official website of the European Fisheries Control Agency.
Article 121
Communication of Union inspectors to Regional Fisheries Management Organisations
The body designated by the Commission shall communicate to the secretariat of a Regional Fisheries Management Organisation the list of Union inspectors who are to carry out inspections in the framework of that Organisation.
Article 122
Powers and duties of Union inspectors
1. In the accomplishment of their tasks Union inspectors shall comply with the law of the European Union and, as far as applicable, the national law of the Member State where the inspection takes place or, where the inspection is carried out outside Union waters of the flag Member State of the inspected fishing vessel and relevant international rules.
2. Union inspectors shall present a service card stating their identity and the capacity under which they operate. For this purpose they shall be provided with an identification document issued by the Commission or the European Fisheries Control Agency stating their identity and capacity.
3. Member States shall facilitate the execution of duties by Union inspectors and shall afford them such assistance as they need to fulfil their tasks.
4. Competent authorities of Member States may permit Union inspectors to assist national inspectors in the execution of their duties.
5. Articles 113 and 114 of this Regulation shall apply in a corresponding manner. Article 123
Reports
1. Union inspectors shall submit a daily summary on their inspection activities, including the name and identification number of each fishing vessel or craft inspected and the type of inspection carried out, to the competent authorities of the Member State in whose waters the inspection took place or, where the inspection was carried outside Union waters, to the flag Member State of the inspected Union fishing vessel, and the European Fisheries Control Agency.
2. If Union inspectors detect an infringement in the course of an inspection, they shall without delay submit a summarised inspection report to the competent authorities of the coastal Member State or, where the inspection was carried outside Union waters, to competent authorities of the flag State of the inspected fishing vessel and the European Fisheries Control Agency. Such summarised inspection report shall specify at least the date and place of the inspection, identification of the inspection platform, identification of the inspected target and type of infringement detected.
3. Union inspectors shall submit a copy of the full inspection report noting the relevant items in the appropriate inspection module of the inspection report in Annex XXVII to the competent authorities of the flag State of the inspected fishing vessel or craft and of the Member State in whose waters the inspection took place, within 7 days from the date of inspection. If the Union inspectors have detected an infringement, a copy of the full inspection report shall also be sent to the European Fisheries Control Agency.
4. Daily reports and inspection reports referred to in this Article shall be transmitted, upon request, to the Commission.
Article 124
Follow-up of reports
1. Member States shall act on reports submitted by the Union inspectors in accordance with Article 123 of this Regulation in the same way as they act on reports from their own officials.
2. The Member State that nominated the Union inspector or, where appropriate, the Commission or the European Fisheries Control Agency shall cooperate with the Member State acting on a report submitted by the Union inspector in order to facilitate judicial and administrative proceedings.
3. On request, a Union inspector shall assist and give evidence in infringement proceedings undertaken by any Member State. TITLE VII ENFORCEMENT POINT SYSTEM FOR SERIOUS INFRINGEMENTS
Article 125 Setting up and operation of a point system for serious infringements
Each Member State shall designate the competent national authorities which shall be responsible for:
(a) setting up the system for the attribution of points for serious infringements, as referred to in Article 92(1) of the Control Regulation;
(b) assigning the appropriate numbers of points to the holder of a fishing licence;
(c) transferring assigned points to any future holder of a fishing licence for the fishing vessel concerned where the latter is sold, transferred or otherwise changes ownership; and
(d) keeping relevant records of the points assigned or transferred to the holder for each fishing licence.
Article 126 Assignation of points
1. The number of points for serious infringements shall be assigned in accordance with Annex XXX to the holder of the fishing licence for the fishing vessel concerned by the competent authority of the flag Member State.
2. When two or more serious infringements by the same natural or legal person holding the licence are detected in the course of one inspection, points in respect of each serious infringement concerned shall be assigned to the holder of the fishing licence in accordance with paragraph 1 up to a maximum of 12 points for all those infringements.
3. The holder of the fishing licence shall be informed that points have been assigned to him.
4. The points are assigned to the holder of the licence on the date set in the decision assigning them. Member States shall ensure that the application of national rules concerning the suspensory effects of review proceedings do not render the point system ineffective.
5. Where the serious infringement is detected in a Member State other than the flag Member State, the points shall be assigned by the competent authorities of the flag Member State referred to in Article 125 of this Regulation upon notification pursuant to Article 89(4) of the Control Regulation.
Article 127 Notification of decisions
If the authority designated in accordance with Article 125 of this Regulation is not the same as the single authority referred to in Article 5(5) of the Control Regulation, the latter shall be informed of any decision taken pursuant to this Title. Article 128
Transfer of ownership
When the fishing vessel is offered for sale or for other type of transfer of ownership, the holder of the fishing licence shall inform any potential future licence holder of the number of points which are still assigned to him by means of a certified copy obtained from the competent authorities.
Article 129
Suspension and permanent withdrawal of a fishing licence
1. The accumulation of 18, 36, 54, 72 points by the holder of a fishing licence shall automatically trigger the first, second, third and fourth suspension of the fishing licence respectively for the relevant periods referred to in Article 92(3) of the Control Regulation.
2. The accumulation of 90 points by the holder of a fishing licence shall trigger automatically the permanent withdrawal of the fishing licence.
Article 130
Follow-up of suspension and permanent withdrawal of fishing licence
1. If a fishing licence is suspended or permanently withdrawn in accordance with Article 129 of this Regulation, the competent authority of the flag Member State shall inform the holder of the fishing licence immediately of this suspension or permanent withdrawal.
2. Upon receiving the information referred to in paragraph 1 the holder of the fishing licence shall ensure that the fishing activity of the vessel concerned ceases immediately. He shall ensure that it proceeds immediately to its home port or a port indicated by the competent authorities of the flag Member State. During the voyage the fishing gear shall be lashed and stowed in accordance with Article 47 of the Control Regulation. The holder of the fishing licence shall ensure that any catch on board the fishing vessel is dealt with in accordance with the instructions of the competent authorities of the flag Member State.
Article 131
Deletion of fishing licences from relevant lists
1. If the fishing licence is suspended or withdrawn permanently in accordance with Article 129(1) or (2) of this Regulation, the fishing vessel to which the suspended or permanently withdrawn fishing licence relates shall be identified as being without fishing licence in the national register referred to in Article 24(1) of Regulation (EU) No 1380/2013. This fishing vessel shall also be identified in this way in the Union fishing fleet register referred to in Article 24(3) of Regulation (EU) No 1380/2013.
2. The permanent withdrawal of a fishing licence in accordance with Article 129(2) of this Regulation shall not affect the fishing capacity ceilings of the Member State issuing the licence as referred to in Article 22(7) of Regulation (EU) No 1380/2013.
3. The competent authorities of Member States shall immediately update the list referred to in Article 116(1)(d) of the Control Regulation with an indication of all points assigned and resulting suspensions and permanent withdrawals of fishing licences, including the date on which they became applicable and their duration.
Article 132
Illegal fishing during the suspension period or after the permanent withdrawal of a fishing licence
1. If a fishing vessel, the fishing licence of which is suspended or has been permanently withdrawn in accordance with Article 129 of this Regulation, carries out fishing activities during the suspension period or after the permanent withdrawal of the fishing licence, the competent authorities shall take immediate enforcement measures in accordance with Article 91 of the Control Regulation.
2. The fishing vessel referred to in paragraph 1 may, where appropriate, be included the EU IUU vessel list in accordance with Article 27 of Regulation (EC) No 1005/2008.
Article 133
Deletion of points
1. If a fishing licence has been suspended in accordance with Article 129 of this Regulation, the points on the basis of which the fishing licence has been suspended shall not be deleted. Any new points assigned to the holder of the fishing licence shall be added to existing points for the purpose of Article 129 of this Regulation.
2. For the application of Article 92(3) of the Control Regulation, if points have been deleted in accordance with Article 92(4) of the Control Regulation the holder of fishing licence shall be considered as if his fishing licence had not been suspended in accordance with Article 129 of this Regulation.
3. Two points shall be deleted provided that the total amount of points assigned to the holder of the fishing licence for the fishing vessel concerned exceeds two, if:
(a) the fishing vessel which has been used in committing the infringement for which points were assigned uses thereafter VMS or records and transmits thereafter fishing logbook, transhipment and landing declaration data electronically without being legally subject to these technologies; or (b) the holder of the fishing licence volunteers after the assignation of points to take part in a scientific campaign for the improvement of the selectivity of the fishing gear; or
c) the holder of the fishing licence is a member of a producer organisation and the holder of the fishing licence accepts a fishing plan adopted by the producer organisation in the year following the assignation of the points involving a reduction of 10% of the fishing opportunities for the holder of the fishing licence; or
d) the holder of the fishing licence joins a fishery covered by an eco-labelling scheme that is designed to certify and promote labels for products from well-managed marine capture fisheries and focus on issues related to the sustainable use of fisheries resources.
For each 3-year period since the date of the last serious infringement, the holder of a fishing licence can avail himself of one of the options under (a), (b), (c) or (d), to reduce the amount of points assigned only once, and provided that such reduction does not lead to the deletion of all points on the fishing licence.
4. If the points were deleted in accordance with paragraph 3 the holder of the fishing licence shall be informed of that deletion. The holder of the fishing licence shall also be informed of the number of points that still remain.
Article 134
Point system for masters of fishing vessels
Member States shall inform the Commission 6 months after the date of application of this Title of their national point systems for masters as referred to in Article 92(6) of the Control Regulation.
TITLE VIII
MEASURES TO ENSURE COMPLIANCE BY THE MEMBER STATES OF COMMON FISHERIES POLICY OBJECTIVES
CHAPTER II
Deduction of fishing opportunities
Article 139
General rules for the deduction of fishing opportunities for excess of utilisation
1. The size of the excess of utilisation of fishing opportunities with respect to available quotas and fishing effort established for a given period, as referred to in Articles 105(1) and 106(1) of the Control Regulation, shall be determined on the basis of the figures available on the 15th day of the second month after the expiration of the regulated period.
2. The size of the excess of utilisation of fishing opportunities shall be determined with respect to the fishing opportunities available at the end of each given period to the Member State concerned taking into account exchanges of fishing opportunities in accordance with Article 16(8) of Regulation (EU) No 1380/2013, quota transfers in accordance with Article 4(2) of Council Regulation (EC) No 847/96 (1), reallocation of available fishing opportunities in accordance with Article 37 of the Control Regulation, and deduction of fishing opportunities in accordance with Articles 105, 106 and 107 of the Control Regulation.
3. The exchange of fishing opportunities in accordance with Article 16(8) of Regulation (EU) No 1380/2013 for a given period shall not be allowed after the last day of the first month after the expiration of that period.
Article 140 Consultation on the deduction of fishing opportunities
For deductions of fishing opportunities in accordance with Article 105(4) and (5) and Article 106(3) of the Control Regulation, the Commission shall consult the Member State concerned on suggested measures. The Member State concerned shall respond within 10 working days to this consultation by the Commission.
CHAPTER III Deduction of quotas for failure to comply with the rules of the common fisheries policy
Article 141 Rules for deduction of quotas for failure to comply with the objectives of the Common Fisheries Policy
1. The deadline for the Member State to demonstrate that the fisheries can be safely exploited, referred to in Article 107(2) of the Control Regulation, shall apply from the date of the Commission’s letter to the Member State.
2. Member States shall include, in their reply pursuant to Article 107(2) of the Control Regulation, material evidence that is capable of demonstrating to the Commission that the fishery can be safely exploited.
Article 142 Determination of the quantities to be deducted
1. Any deduction of quotas in accordance with Article 107 of the Control Regulation shall be proportionate to the extent and the nature of non-compliance with rules on stocks subject to multi-annual plans and gravity of the threat to the conservation of these stocks. It shall take into account the damage caused to these stocks by the non-compliance with rules on stocks subject to multi-annual plans.
(1) Council Regulation (EC) No 847/96 of 6 May 1996 introducing additional conditions for year-to-year management of TACs and quotas (OJ L 115, 9.5.1996, p. 3). 2. If a deduction according to paragraph 1 cannot be operated on the quota, allocation or share of a stock or group of stocks to which the non-compliance refers because a quota, allocation or share of a stock or group of stocks in question is not or not sufficiently available to the Member State concerned, the Commission, after consultation of the Member State concerned, may deduct in the following year or years quotas for other stocks or groups of stocks available to that Member States in the same geographical area, or with the same commercial value in accordance with paragraph 1.
TITLE IX DATA AND INFORMATION
CHAPTER I Analysis and audit of data
Article 143 Subject matter
The computerised validation system referred to in Article 109(1) of the Control Regulation shall comprise in particular:
(a) a database or databases storing all data to be validated by this system, as referred to in Article 144 of this Regulation;
(b) validation procedures including data quality checks, analysis and cross-checks of all these data, as referred to in Article 145 of this Regulation;
(c) procedures for the access to all these data by the Commission or a body designated by it, as referred to in Article 146 of this Regulation.
Article 144 Data to be validated
1. For the purpose of the computerised validation system, Member States shall ensure that all data referred to in Article 109(2) of the Control Regulation, are stored in a computerised database or databases. The minimum elements to be included are the items listed in Annex XXIII, those indicated as compulsory in Annex XXVII, the items in Annex XII and the items in Annex XXXII. The validation system may also take into account any other data deemed necessary for the purpose of the validation procedures.
2. The data in the databases referred to in paragraph 1 shall be accessible for the validation system on a continuous basis and in real-time. The validation system shall have direct access to all these databases without any human intervention. To this end all databases or systems in a Member State containing the data referred to in paragraph 1 shall be linked with each other.
3. If the data referred to in paragraph 1 are not stored automatically in a database, Member States shall foresee the manual entry or digitising into the databases, without delay and by respecting the deadlines set in the relevant legislation. The date of data receipt and data entry shall be correctly recorded in the database. Article 145
Validation procedures
1. The computerised validation system shall validate each dataset referred to in Article 144(1) of this Regulation on the basis of automated computerised algorithms and procedures in a continuous, systematic and thorough manner. The validation shall contain procedures to control the basic data quality, to check the data format and the minimal data requirements, as well as more advanced verification by analysing several records of a dataset into detail, using statistical methods, or cross-checking data from different sources.
2. For each validation procedure, there shall be a business rule or a set of business rules that defines which validations are executed by the procedure, as well as where the results of these validations are stored. Where applicable, the relevant reference to the legislation whose application is being verified shall be indicated. The Commission may define after consultation with Member States a standard set of business rules to be used.
3. All results of the computerised validation system, both positive and negative, shall be stored in a database. It shall be possible to identify immediately any inconsistency and non-compliance issue detected by the validation procedures, as well as the follow-up of these inconsistencies. It shall also be possible to retrieve the identification of fishing vessels, vessel masters or operators for which inconsistencies and possible non-compliance issues were detected repeatedly in the course of the past 3 years.
4. The follow-up of the inconsistencies detected by the validation system shall be linked with the validation results, indicating the date of validation and follow-up.
If the detected inconsistency is identified as the result of a wrong data entry, that data entry shall be corrected in the database, clearly marking the data as being corrected, as well as reporting the original value or entry and the reason for correcting the data.
If the detected inconsistency leads to a follow-up, the validation result shall contain a link to the inspection report, where appropriate, and the follow-up of it.
Article 146
Access by the Commission
1. Member States shall ensure that the Commission or the body designated by it have at any time real-time access to:
(a) all the data referred in Article 144(1) of this Regulation;
(b) all business rules defined for the validation system, containing the definition, the relevant legislation and the place where the validation results are stored; (c) all validation results and follow-up measures, with a marker if the data item has been corrected, and with a link to infringement procedures if applicable.
2. Member States shall ensure that the data referred to in paragraph 1(a), (b) and (c) can be accessed by the automated exchange of data via secure web services, as defined in Article 147 of this Regulation.
3. The data shall be made available for download according to the data exchange format and all data elements as defined in Annex XII and in the XML format. Other data items that shall be accessible and are not defined in Annex XII shall be available in the format as defined in Annex XXXII.
4. The Commission or the body designated by it shall be given the possibility to download the data referred to in paragraph 1 for any period and any geographical area for an individual fishing vessel or list of fishing vessels.
5. At the reasoned request of the Commission the Member State concerned shall correct without delay data for which the Commission has identified inconsistencies. The Member State concerned shall inform other relevant Member States about this correction without delay.
CHAPTER Ia
Rules for the exchange of data
Article 146a
This Chapter lays down detailed rules for the exchange of data as referred to in Articles 111 and 116 of the Control Regulation as well as for the notification of catch data as referred to in Article 33(2) and (4) of the Control Regulation and in Article 13(2) of Council Regulation (EC) No 1006/2008 (1).
Article 146b
Definitions
For the purpose of this Chapter the following definitions shall apply:
(a) ‘Transportation layer’ means the electronic network for fisheries data exchanges as made available by the Commission to all Member States and the body designated by it to exchange data in a standardised way;
(b) ‘Report’ means the information recorded by electronic means;
(c) ‘Message’ means the report in its format for transmission;
(d) ‘Request’ means an electronic message containing a query for a set of reports.
(1) Council Regulation (EC) No 1006/2008 of 29 September 2008 concerning authorisations for fishing activities of Community fishing vessels outside Community waters and the access of third country vessels to Community waters, amending Regulations (EEC) No 2847/93 and (EC) No 1627/94 and repealing Regulation (EC) No 3317/94 (OJ L 286, 29.10.2008, p. 33). Article 146c
General principles
1. All messages shall be exchanged based on the United Nations Centre for Trade Facilitation and Electronic Business (UN/CEFACT) P1000 standard. Only data fields, core components, objects and well formatted Extensible Markup Language (XML) messages according to the XML Schema Definition (XSD) based on the UN/CEFACT standardisation libraries shall be used.
2. The report formats shall be based on the UN/CEFACT standards as referred to in Annex XII and shall be made available on the Master Data Register page of the European Commission Fisheries website.
3. The XSD and codes on the Master Data Register page of the European Commission Fisheries website shall be used for all messages.
4. Date and time shall be transmitted in Coordinated Universal Time (UTC).
5. All reports shall have a unique report identifier.
6. A unique human readable fishing trip identifier shall be used to link the fishing log-book data with landing declaration data, transhipment declaration data, sales note data, take-over declaration data and transport document data.
7. Reports related to Union fishing vessels shall include the identification number of the vessel as referred to in Article 10 of Commission Regulation (EC) No 26/2004 (1).
8. Member States shall use the implementation documents available on the European Commission fisheries website to ensure exchange of messages.
Article 146d
Transmission of messages
2. Before transmitting a message, the sender shall perform an automatic check to verify that the message is correct according to the minimum set of validation and verification rules available on the Master Data Register on the European Commission Fisheries website.
3. The receiver shall inform the sender on the reception of the message by transmitting a return message based on UN/CEFACT P1000-1: General Principles. Vessel monitoring system messages and replies to a request shall not receive a return message.
(1) Commission Regulation (EC) No 26/2004 of 30 December 2003 on the Community fishing fleet register (OJ L 5, 9.1.2004, p. 25). 4. When a technical failure occurs on the sender side and the sender can no more exchange messages, the sender shall notify all receivers of the problem. The sender shall immediately take appropriate actions to correct the problem. All messages that have to be delivered to a receiver shall be stored until the problem is solved.
5. When a technical failure occurs on the receiver side and the receiver can no more receive messages, the receiver shall notify the all senders of the problem. The receiver shall immediately take appropriate actions to correct the problem.
6. After repair of a system failure related to a sender, the sender shall transmit unsent messages as soon as possible. A manual follow-up procedure may be applied.
7. After repair of a system failure related to the receiver, missing messages shall be accessible on request. A manual follow-up procedure may be applied.
8. All senders and receivers of messages and the Commission shall establish failover procedures for business continuity.
Article 146e
Corrections
Corrections to reports shall be recorded in the same format as the original report, indicating that the report is a correction based on the UN/CEFACT P1000-1: General Principles.
Article 146f
Exchange of vessel monitoring system data
1. The format to be used to report vessel monitoring system data between Member States, as well as between Member States and the Commission or the body designated by it, shall be the Vessel Position Domain XML Schema Definition based on the UN/CEFACT P1000-7.
2. Flag Member State systems shall be capable of sending vessel monitoring system messages.
3. Flag Member State systems shall also be capable of replying to requests for vessel monitoring system data for fishing trips that started during the previous 36 months.
Article 146g
Exchange of fishing activity data
1. The format to be used to exchange fishing logbook data, prior notification data, transhipment declaration data, and landing declaration data, as referred to in Articles 15, 17, 22 and 24 of the Control Regulation, between Member States, as well as between Member States and the Commission or the body designated by it, shall be the Fishing Activity Domain XML Schema Definition based on the UN/CEFACT P1000-3.
2. Flag Member State systems shall be capable of sending fishing activity messages as well as of replying to requests for fishing activity data for fishing trips that started during the previous 36 months.
Article 146h
Exchange of sales related data
1. The format to be used to exchange sales notes data and take-over declarations data, as referred to in Articles 63 and 67 of the Control Regulation, between Member States, as well as between Member States and the Commission or the body designated by it, shall be the Sales Domain XML Schema Definition based on the UN/CEFACT P1000-5.
2. When transport document data as referred to in Article 68 of the Control Regulation are exchanged between Member States, as well as between Member States and the Commission or the body designated by it, the format used shall also be based on the UN/CEFACT P1000-5.
3. Member State systems shall be capable of sending sales notes and take-over declarations messages as well as of replying to requests for sales notes and take-over data for operations taken place in the previous 36 months.
Article 146i
Transmission of aggregated catch data
1. Flag Member States shall use the XML Schema Definition based on the UN/CEFACT P1000-12 as format to transmit to the Commission the aggregated catch data referred to in Article 33(2) and (4) of the Control Regulation and in Article 13(2) of Council Regulation (EC) No 1006/2008.
2. The catch report data shall be aggregated per month in which the species were caught.
3. The catch report quantities shall be based on the quantities landed. When a catch report is to be provided in accordance with Article 13(2) of Regulation (EC) No 1006/2008, and before the landing takes place, an estimate catch report shall be provided, with the indication ‘retained on board’. A correction with the exact weight and landing place shall be transmitted before the 15th of the month following the landing.
4. When the Union legislation requires the reporting of stocks or species in multiple catch reports at different aggregation levels, these stocks or species shall only be reported in the most detailed report required.
Article 146j
Changes to XML formats and implementation documents
1. Amendments to XML formats and implementation documents to be used for all electronic data exchanges between Member States, and between Member States, the Commission or the body designated by it, including the amendments resulting from Articles 146f, 146g and 146h, shall be decided by the Commission in concert with Member States.
2. The amendments referred to in paragraph 1 shall be clearly identified on the Master Data Register of the European Commission Fisheries website and marked with the date the amendment comes into effect. Such amendments shall not come into effect earlier than 6 months and no later than 18 months after they have been decided. The timing shall be decided by the Commission in concert with Member States.
CHAPTER II Websites of Member States
Article 147 Operation of websites and web services
1. For the purpose of the official websites referred to in Articles 115 and 116 of the Control Regulation Member States shall create web services. These web services shall generate real-time and dynamic content for the official websites and they shall provide automated access to the data. If necessary, Member States shall adapt their existing databases or create new databases in order to provide the required content of the web services.
2. This web services shall enable the Commission and the body designated by it to pull all available data referred to in Articles 148 and 149 of this Regulation at any time. That automated pulling mechanism shall be based on the electronic information exchange protocol and format referred to Annex XII. Web services shall be created according to international standards.
3. Every subpage of the official website referred to in paragraph 1 shall contain a menu at the left side where hyperlinks to all other subpages are listed. It shall also contain the definition of the related web service at the bottom of the subpage.
4. Web services and websites shall be deployed in a centralised manner, providing only one unique access point per Member State.
5. The Commission may lay down common standards, technical specifications and procedures for the website’s interface, technically compatible computerised systems and web services among Member States, the Commission and the body designated by it. The Commission shall coordinate the process to create those specifications and procedures after consultation with the Member States.
Article 148 Publicly accessible website and web services
1. The publicly accessible part of the website shall contain an overview page and different subpages. The public overview page shall list hyperlinks containing the references in Article 115(a) to (g) of the Control Regulation and referring to subpages providing the information referred to in that Article.
2. Each public subpage shall contain at least one of the information items listed in Article 115(a) to (g) of the Control Regulation. Subpages, as well as the related web services, shall contain at least the information set out in Annex XXXIII.
Article 149
Secured website and web services
1. The secure part of the website shall contain an overview page and different subpages. The secure overview page shall list hyperlinks containing the references in Article 116(1)(a) to (h) of the Control Regulation and referring to subpages providing the information referred to in that Article.
2. Each secure subpage shall contain at least one of the information items listed in Article 116(1)(a) to (h) of the Control Regulation. Subpages, as well as the related web services, shall contain at least the information set out in Annex XXIV.
3. Both the secure website as the secure web services shall make use of electronic certificates referred to in Article 116(3) of the Control Regulation.
TITLE X
IMPLEMENTATION
CHAPTER I
Mutual assistance
Section 1
General provisions
Article 150
Scope
1. This Chapter lays down the conditions under which the Member States shall administratively cooperate with each other, with third countries, with the Commission and with the body designated by it in order to ensure the effective application of the Control Regulation and of this Regulation. It does not prevent Member States to establish other forms of administrative cooperation.
2. This Chapter shall not bind Member States to grant each other assistance where that would be likely to be injurious to their national legal system, public policy, security or other fundamental interests. Before denying a request for assistance, the requested Member State shall consult the applicant Member State to determine whether assistance may be given in part, subject to specific terms and conditions. Where a request for assistance cannot be complied with the applicant Member State and the Commission or the body designated by it shall promptly be notified of that fact and reasons shall be stated.
3. This Chapter shall not affect the application in the Member States of rules on criminal procedure and mutual assistance in criminal matters, including those on secrecy of judicial inquiries.
**Article 151**
**Costs**
Member States shall bear their own costs of executing a request for assistance and shall waive all claims for the reimbursement of expenses incurred in applying this Title.
**Article 152**
**Single authority**
The single authority referred to in Article 5(5) of the Control Regulation shall act as a single liaison office responsible for the application of this Chapter.
**Article 153**
**Follow up measures**
1. Where national authorities decide, in response to a request for assistance based on this Chapter or following a spontaneous exchange of information, to take measures which may be implemented only with the authorisation or at the demand of a judicial authority, they shall communicate to the Member State concerned and the Commission or the body designated by it any information on those measures which is related to non-compliance with rules of the Common Fisheries Policy.
2. Any such communication must have the prior authorisation of the judicial authority if such authorisation is required by national law.
**Section 2**
**Information without prior request**
**Article 154**
**Information without prior request**
1. When a Member State becomes aware of any potential non-compliance with the rules of the Common Fisheries Policy, in particular serious infringement referred to in Article 90(1) of the Control Regulation or reasonably suspects that such an infringement may occur, it shall notify the other Member States concerned and the Commission or the body designated by it, without delay. That notification shall supply all necessary information and shall be made via the single authority as referred to in Article 152 of this Regulation.
2. When a Member State takes enforcement measures in relation to a non-compliance or an infringement referred to in paragraph 1, it shall notify the other Member States concerned and the Commission or the body designated by it via the single authority as referred to in Article 152 of this Regulation.
3. All notifications according to this Article shall be made in writing.
Section 3 Requests for assistance
Article 155 Definition
For the purpose of this Section ‘request for assistance’ means a request addressed by one Member State to another Member State or by the Commission or the body designated by it to a Member State for:
(a) information including information according to Article 93(2) and (3) of the Control Regulation;
(b) enforcement measures; or
(c) administrative notification.
Article 156 General requirements
1. The applicant Member State shall ensure that all requests for assistance contain sufficient information to enable a requested Member State to fulfil the request, including any necessary evidence obtainable in the territory of the applicant Member State.
2. Requests for assistance shall be limited to substantiated cases where there is reasonable cause to believe that non-compliance with rules of the Common Fisheries Policy, in particular serious infringements referred to in Article 90(1) of the Control Regulation have occurred and where the applicant Member State is not able to obtain the requested information or to take the requested measures by its own means.
Article 157 Transmission of requests and replies
1. Requests shall only be sent by the single authority of the applicant Member State, by the Commission or the body designated by it to the single authority of the requested Member State. All replies to a request shall be communicated in the same way.
2. Requests for mutual assistance and the respective replies shall be made in writing.
3. The languages used for requests and replies shall be agreed by the single authorities concerned before requests are made. If no agreement can be reached, requests shall be communicated in the official language(s) of the applicant Member State and replies in the official language(s) of the requested Member State. Article 158
Requests for information
1. A Member State shall, at the request of an applicant Member State, of the Commission or the body designated by it, supply any relevant information required to establish whether non-compliance with the rules of the Common Fisheries Policy, in particular serious infringements as referred to in Article 90(1) of the Control Regulation, have occurred or to establish whether there is a reasonable suspicion it may occur. That information shall be supplied via the single authority as referred to in Article 152 of this Regulation.
2. The requested Member State shall, at the request of the applicant Member State, of the Commission or the body designated by it, carry out the appropriate administrative enquiries concerning operations which constitute or appear to the applicant to constitute non-compliance with the rules of the Common Fisheries Policy, in particular serious infringements referred to in Article 90(1) of the Control Regulation. The requested Member State shall communicate the results of such administrative enquiries to the applicant Member State and to the Commission or the body designated by it.
3. At the request of the applicant Member State, of the Commission or the body designated by it, the requested Member State may permit a competent official of the applicant Member State to accompany the officials of the requested Member State, the Commission or the body designated by it, in the course of administrative enquiries referred to in paragraph 2. In so far as national provisions on criminal proceedings restrict certain acts to officials specifically designated by national law, the officials of the applicant Member State shall not take part in such acts. In no event, shall they participate in searches of premises or the formal questioning of persons under criminal law. The officials of the applicant Member States present in the requested Member State must at all time be able to present written authority stating their identity and their official functions.
4. At the request of the applicant Member State, the requested Member State shall supply it with any document or certified true copies in its possession which relates to non-compliance with the rules of the Common Fisheries Policy or serious infringements referred to in Article 90(1) of the Control Regulation.
5. The standard form for the exchange of information on request is set out in Annex XXXIV.
Article 159
Requests for enforcement measures
1. A requested Member State shall, based on the evidence referred to in Article 156 of this Regulation, at the request of an applicant Member State, of the Commission or the body designated by it, take all necessary enforcement measures to bring about the cessation, within its territory or within maritime waters under its sovereignty or jurisdiction, of any non-compliance with the rules of the Common Fisheries Policy or serious infringements referred to in Article 90(1) of the Control Regulation without delay.
2. The requested Member State may consult the applicant Member State, the Commission or the body designated by it in the course of taking the enforcement measures referred to in paragraph 1.
3. The requested Member State shall report the measures taken and their effect to the applicant Member State, the other Member States concerned, the Commission or the body designated by it, via the single authority as referred to in Article 152 of this Regulation.
Article 160 Deadline for replies to requests for information and enforcement measures
1. The requested Member State shall provide the information referred to in Articles 158(1) and 159(3) of this Regulation as quickly as possible, but not later than 4 weeks following the date of receipt of the request. Different time limits may be agreed between the requested and the applicant Member State, the Commission or the body designated by it.
2. Where the requested Member State is unable to respond to the request by the deadline, it shall inform the applicant Member State, the Commission or the body designated by it in writing of the reason for its failure to do so, and indicate when it considers it will be able to respond.
Article 161 Requests for administrative notification
1. A requested Member State shall, at the request of an applicant Member State and in accordance with its national rules governing the notification of similar instruments and decisions, notify the addressee of all instruments and decisions taken in the field covered by the Common Fisheries Policy, in particular on issues regulated under the Control Regulation or this Regulation which emanate from the administrative authorities of the applicant Member State and are to be served in the territory of the requested Member State.
2. Requests for notification shall be made using the standard form attached to this Regulation in Annex XXXV.
3. The requested Member State shall transmit its reply to the applicant Member State immediately after the notification via the single authority referred to in Article 152 of this Regulation. The reply shall be made using the standard form set out in Annex XXXVI. Section 4
Relations with the Commission or the body designated by it
Article 162
Communication between the Member States and the Commission or the body designated by it
1. Each Member State shall communicate to the Commission or the body designated by it as soon as it is available to it any information it considers relevant concerning methods, practices or revealed tendencies used or suspected of having been used in cases of non-compliance with the rules of the Common Fisheries Policy, in particular in serious infringements as referred to in Article 90(1) of the Control Regulation.
2. The Commission or the body designated by it shall communicate to the Member States, as soon as it becomes available to it, any information that would help them in the enforcement of the Control Regulation or of this Regulation.
Article 163
Coordination by the Commission or the body designated by it
1. Where a Member State becomes aware of operations which constitute, or appear to constitute, non-compliance with the rules of the Common Fisheries Policy, in particular serious infringements referred to in Article 90(1) of the Control Regulation, and which are of particular relevance at Union level, it shall communicate to the Commission or the body designated by it as soon as possible any relevant information needed to determine the facts. The Commission or the body designated by it shall convey that information to the other Member States concerned.
2. For the purposes of paragraph 1, operations which constitute non-compliance with the rules of the Common Fisheries Policy, in particular serious infringements as referred to in Article 90(1) of the Control Regulation shall be deemed to be of particular relevance at the level of the European Union especially where:
(a) they have, or might have, connections in one or more Member States; or
(b) it appears likely to the Member State that similar operations have also been carried out in other Member States.
3. Where the Commission or the body designated by it considers that operations which constitute non-compliance with the rules of the Common Fisheries Policy, in particular serious infringements as referred to in Article 90(1) of the Control Regulation have taken place in one or more Member States, it shall inform the Member States concerned thereof which shall as soon as possible carry out enquiries. The Member States concerned shall, as soon as possible, communicate to the Commission or the body designated by it the findings of those enquiries. Section 5
Relations with third countries
Article 164
Information exchange with third countries
1. When a Member State receives information from a third country or a Regional Fisheries Management Organisation which is relevant for the effective application of the Control Regulation and this Regulation, it shall communicate that information via the single authority to the other Member States concerned, to the Commission or the body designated by it, in so far as it is permitted to do so by bilateral agreements with that third country or the rules of that Regional Fisheries Management Organisation.
2. Information received under this Chapter may be communicated to a third country or a Regional Fisheries Management Organisation by a Member State via its single authority under a bilateral agreement with that third country or in accordance with the rules of that Regional Fisheries Management Organisation. That communication shall take place after consultation of the Member State that originally communicated the information and in accordance with EU and national legislation regarding the protection of individuals with regard to the processing of personal data.
3. The Commission or the body designated by it may, in the framework of sustainable fisheries partnership agreements or of fisheries partnership agreements concluded between the Union and third countries or in the framework of Regional Fisheries Management Organisations or similar arrangements to which the Union is a Contracting Party or a non-contracting Cooperating Party, communicate relevant information concerning non-compliance with the rules of the Common Fisheries Policy or serious infringements referred to in Article 42(1)(a) of Regulation (EC) No 1005/2008 and in Article 90(1) of the Control Regulation to other parties to those agreements, organisations or arrangements, subject to the consent of the Member State that supplied the information and in accordance with Article 9 of Regulation (EC) No 45/2001 (1).
CHAPTER II
Reporting obligations
Article 165
Format and deadlines for reports
1. For the 5 years-report as referred to in Article 118(1) of the Control Regulation Member States shall use the data defined in Annex XXXVII.
(1) Regulation (EC) No 45/2001 of the European Parliament and of the Council of 18 December 2000 on the protection of individuals with regard to the processing of personal data by the Community institutions and bodies and on the free movement of such data (OJ L 8, 12.1.2001, p. 1). 2. The report stating the rules that have been used for producing reports on basic data as referred to in Article 118(4) of the Control Regulation shall be sent 6 months after the entry into force of this Regulation. Member States shall send a new report when these rules are modified.
TITLE XI
FINAL PROVISIONS
Article 166
Repeals
1. Regulations (EEC) No 2807/83, (EEC) No 3561/85, (EEC) No 493/87, (EEC) No 1381/87, (EEC) No 1382/87, (EEC) No 2943/95, (EC) No 1449/98, (EC) No 2244/2003, (EC) No 1281/2005, (EC) No 1042/2006, (EC) No 1542/2007, (EC) No 1077/2008 and (EC) No 409/2009 shall be repealed.
2. Regulation (EC) No 356/2005 shall be repealed with effect from 1 January 2012.
3. References to the repealed Regulations shall be construed as references to this Regulation.
Article 167
Entry into force
This Regulation shall enter into force on the seventh day following its publication in the Official Journal of the European Union, except Title VII, which shall enter into force on 1 July 2011.
However, Title II, Chapter III and Title IV, Chapter 1 shall apply as from 1 January 2012. In accordance with Article 124(c) of the Control Regulation and the previous paragraph Title VII shall apply as from 1 January 2012.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
### ANNEX I
#### Table 1
**Product presentation alpha-3 codes**
| 3-Alpha product presentation code | Presentation | Description | |-----------------------------------|--------------|-------------| | CBF | Cod butterfly (escalado) | HEA with skin on, spine on, tail on | | CLA | Claws | Claws only | | DWT | ICCAT code | Gilled, gutted, part of head off, fins off | | FIL | Filleted | HEA+GUT+TLD+bones off, each fish originates two fillets not joined by any part | | FIS | Filleted and skinned fillets | FIL+SKI Each fish originates two fillets not joined by any part | | FSB | Filleted with skin and bones | Filleted with skin and bones on | | FSP | Filleted skinned with pinbone on | Filleted with skin removed and pinbone on | | GHT | Gutted headed and tailed | GUH+TLD | | GUG | Gutted and gilled | Guts and gills removed | | GUH | Gutted and headed | Guts and head removed | | GUL | Gutted liver in | GUT without removing liver parts | | GUS | Gutted headed and skinned | GUH+SKI | | GUT | Gutted | All guts removed | | HEA | Headed | Heads off | | JAP | Japanese cut | Transversal cut removing all parts from head to belly | | JAT | Tailed Japanese cut | Japanese cut with tail removed | | LAP | Lappen | Double fillet, HEA, skin+tails+fins ON | | LVR | Liver | Liver only, In case of collective presentation use code LVR-C | | OTH | Other | Any other presentation (1) | | ROE | Roe (s) | Roe(s) only in case of collective presentation use code ROE-C | | SAD | Salted dry | Headed with skin on, spine on, tail on and salted directly |
### Table 2
#### State of processing
| CODE | STATE | |------|---------| | ALI | Alive | | BOI | Boiled | | DRI | Dried | | FRE | Fresh | | FRO | Frozen | | SAL | salted |
(1) When masters of fishing vessels use in the landing declaration or transhipment declaration the presentation code ‘OTH’ (Other), they shall describe exactly what the presentation ‘OTH’ refers to. ANNEX II
MINIMUM INFORMATION FOR THE FISHING LICENCES
1. FISHING VESSEL DETAILS (1) Union fleet register number (2) Name of fishing vessel (3) Flag state/Country of registration (3) Port of registration (Name and national code (3)) External marking (3) International radio call sign (IRCS (4))
2. LICENCE HOLDER / FISHING VESSEL OWNER (2) / FISHING VESSEL AGENT (2) Name and address of natural or legal person
3. CHARACTERISTICS OF FISHING CAPACITY Engine power (kW) (5) Tonnage (GT) (6) Length overall (6) Main fishing gear (7) Subsidiary fishing gears (7)
OTHER NATIONAL MEASURES AS APPLICABLE
(1) This information shall be indicated on the fishing licence only at the moment when the vessel is registered in the Union fishing fleet register in accordance with the provisions of Commission Regulation (EC) No 26/2004 (OJ L 5, 9.1.2004, p. 25). (2) In accordance with Regulation (EC) No 26/2004. (3) For vessels having a name. (4) In accordance with Regulation (EC) No 26/2004 for vessels requested to have an IRCS. (5) In accordance with Regulation (EC) No 2930/86. (6) In accordance with Regulation (EC) No 2930/86. This information shall be indicated on the fishing licence only at the moment when the vessel is registered in the Union fishing fleet register in accordance with the provisions of Regulation (EC) No 26/2004. (7) In accordance with the International Standard Statistical Classification of Fishing Gear (ISSCFCG). ANNEX III
MINIMUM INFORMATION FOR FISHING AUTHORISATIONS
A. IDENTIFICATION
1. Union fleet register number (1)
2. Name of fishing vessel (2)
3. External registration letters and number (1)
B. FISHING CONDITIONS
1. Date of issue:
2. Period of validity:
3. Conditions of authorisation including, where appropriate, species, zone and fishing gear:
| Zones | From /./. To /./. | From /./. To /./. | From /./. To /./. | From /./. To /./. | From /./. To /./. | |-------|------------------|------------------|------------------|------------------|------------------| | Species | | | | | | | Fishing gear | | | | | | | Other conditions | | | | | |
Any other requirement arising from an application for a fishing authorisation.
(1) In accordance with Regulation (EC) No 26/2004. (2) For vessels having a name. ANNEX IV
CHARACTERISTICS OF MARKER BUOYS
- Optional top sign/radar reflector
- Striped luminous bands
- Flashing yellow lights
- Flags 20 cm distance between upper and bottom flag
- The lower edge of the bottom flag at least 1 metre above the top of the float
- Float
- Stabiliser WESTERN END MARKER BUOYS
- Optional top sign/radar reflector
- Two striped luminous bands
- Two flashing yellow lights
- Two coloured flags 20 cm distance between upper and bottom flag
- The lower edge of the bottom flag at least 1 metre above the top of the float
- Float
- Stabiliser EASTERN END MARKER BUOYS
- Optional top sign/radar reflector
- One striped luminous band
- One flashing yellow light
- One coloured flag
- The lower edge of the flag at least 1 metre above the top of the float
- Float
- Stabiliser INTERMEDIARY MARKER BUOYS
- Optional top sign/radar reflector
- One striped luminous band
- One flashing yellow light
- One white flag
- The lower edge of the flag at least 1 metre above the top of the float
- Float
- Stabiliser
### ANNEX VI
**MODEL OF COMBINED UNION FISHING LOGBOOK, LANDING DECLARATION AND TRANSHIPMENT DECLARATION**
| Date (11) | No. of fishing ops (12) | Fishing time (13) | Fishing depth (14) | Position of fishing area (15) | Position (latitude/longitude) | Catches by species kept on board, discarded or released as seen in kilograms/ live weight or number of units (16) | |-----------|------------------------|-------------------|-------------------|-------------------------------|-------------------------------|----------------------------------------------------------------------------------| | Gear time set | Gear time used | Total time | Stat. recs. | ICES/GFCM/COCA/FAO area | Third country fishing zone | High seas | Species | Weight of each live weight or number of individuals of species concerned | Initials of the master | | Kept on board by class size, discarded or released to sea | |
| ICS/GFCM/COCA/FAO area (22) | Third country fishing zone | High seas (22) | Landing/transhipment declaration (18) in kilograms or units utilized equals | KIlograms | |----------------------------|--------------------------|----------------|---------------------------------------------------------------------------------|-----------| | Presentation of fish (17) | Quantity (19) | Presentation of fish (17) | Quantity (19) | Species | Date: | | Signature of master (20) | Signature of observer (21) | Agent(s) observer name and address (21) | |
(\*) Delete whichever does not apply
Comments:
### ANNEX VII
**MODEL OF COMBINED UNION FISHING LOGBOOK, LANDING DECLARATION AND TRANSHIPMENT DECLARATION**
(MEDITERRANEAN SEA — DAILY FISHING TRIPS)
| No ISO alpha-3 country code + number | UNION FISHING LOGBOOK | Year | Trip No | |-------------------------------------|------------------------|------|---------| | | Name of vessel(s) (*) | | | | | Radio call sign (*) | | | | | External identification | | | | | CTR number (*) | | | | | IMO number (*) | | | | | Date (DD/MM/YYYY) | | | | | Month (DD/MM/YYYY) | | | | | Time (HH:MM) | | | | | Port (DD/MM/YYYY) | | |
| Date (month, year, time) (*) | Departure (*) | Arrival (*) | Landing (*) | |-----------------------------|---------------|------------|------------| | | | | |
| Gear type (\*) | Dimensions (m) | Number (1/5) | Mesh size (1/5) | No of fishing sets (1/2) | Gear setting (1/5) | Fishing depth (1/5) | Position (Latitude, Longitude) | Species | Weight of unit in live weight or number of individuals of species concerned | |---------------|----------------|--------------|-----------------|--------------------------|--------------------|---------------------|--------------------------------|---------|---------------------------------------------------------------------| | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
| Comments: | Date: | |-----------|-------| | | |
(\*) Data which do not apply
______________________________________________________________________
The undersigned hereby certify that all records are complete, true and accurate.
Signature master/agent (*) (2/3) Signature observer (*) (2/3) Agent(s) observer name and address (2/3) ANNEX X
INSTRUCTIONS TO MASTERS OF FISHING VESSELS REQUIRED TO COMPLETE AND SUBMIT A FISHING LOGBOOK, A LANDING DECLARATION OR A TRANSHIPMENT DECLARATION
The following general and minimum information on the vessel or vessels fishing activities shall be recorded in the fishing logbook in accordance with Article 14, 15, 21, 22, 23 and 24 of Control Regulation and Title III, Chapters I, II and III of this Regulation, without prejudice of other specific elements or rules required by Union legislation, national authorities of a Member State or of a third country, or by a Regional Fisheries Management Organisation.
1. INSTRUCTIONS CONCERNING THE FISHING LOGBOOK
The master(s) of all fishing vessel(s) participating to a pair fishing operation shall keep a fishing logbook indicating the quantities caught and kept on board in such a way that there is no double counting of catches.
In paper log book, during the same fishing trip, mandatory data elements shall be recorded in each page.
| Information concerning the fishing vessel(s) and fishing trip dates | |---------------------------------------------------------------| | Paper fishing logbook Reference Number | Name of the data element (M = Mandatory) (O = Optional) (CIF = Compulsory if applicable) | Description and/or timing to be recorded | | (1) | Name of fishing vessel(s), (M) International radio call signal(s), (M) CFR number(s) (M) GFCM, ICCAT number(s) (CIF) | In case of pair fishing operations, the same information for the second fishing vessel, shall be as well recorded. This information shall be entered in paper logbook below those of the vessel in respect of which the fishing logbook is being kept. The Community Fleet Register (CFR) identification number of the vessel is the unique number assigned to a Union vessel by a Member State when the fishing vessel enters in the Union fleet for the first time (1). GFCM or ICCAT register number shall be entered for fishing vessels carrying out regulated fishing activities outside Union waters (CIF). | | (2) | External identification (M) | External registration letters and numbers as displayed on the side hull. In case of pair fishing operations, the same information for the second fishing vessel, shall be as well recorded. | | (3) | Name and address of the master (M) | Name, first name and detailed address of master (street name, number, city, postal code, Member State or third country) shall be given. In case of pair fishing operations, the same information for the second fishing vessel, shall be as well recorded. | | (4) | Date, time and port of departure (M) | Shall be recorded in paper logbook before fishing vessel leaves the port. Date shall be recorded in DD-MM-YYYY and time shall be recorded in HH-MM in local time. Electronic departure message shall be sent before fishing vessel leaves the port. Date and time shall be recorded in coordinated universal time (UTC). |
### Information concerning the fishing vessel(s) and fishing trip dates
| Paper fishing logbook Reference Number | Name of the data element (M = Mandatory) (O = Optional) (CIF = Compulsory if applicable) | Description and/or timing to be recorded | |----------------------------------------|------------------------------------------------------------------------------------------|------------------------------------------| | | | For electronic logbook, port shall be recorded using codes published in the Master Data Register page of the European Commission Fisheries website. | | (5) Date, time and port of return (M) | Shall be recorded in paper logbook before fishing vessel enters into the port. Date shall be recorded in DD-MM-YYYY and estimated time shall be recorded in HH-MM in local time | Electronic return to port message shall be sent before fishing vessel entering into the port. Date and estimated time shall be recorded in in coordinated universal time (UTC). For electronic logbook, port shall be recorded using codes published in the Master Data Register page of the European Commission Fisheries website. | | (6) Date, time and port of landing if different from (5) (M) | Shall be recorded in logbook before fishing vessel enters into the port of landing. Date shall be recorded in DD-MM-YYYY and estimated time shall be recorded in HH-MM in local time (paper logbook) or in coordinated universal time (UTC) for electronic logbook. | For electronic logbook, port shall be recorded using codes published in the Master Data Register page of the European Commission Fisheries website. | | (7) Date, time and place of the transhipment, Name, external identification, international radio call sign, flag, CFR or IMO number and port and country of destination of the receiving fishing vessel (M) | Shall be filled in paper logbook in the case of transhipment before starting the operation. Date shall be recorded in DD-MM-YYYY and time shall be recorded in HH-MM in local time (paper logbook) or in coordinated universal time (UTC) for electronic logbook. For electronic logbook, port shall be recorded using codes published in the Master Data Register page of the European Commission Fisheries website. Third country shall be recorded using ISO-3166 3-alpha country codes. The Community Fleet Register (CFR) number shall be recorded for Union vessels. The International Maritime Organisation (IMO) number shall be recorded for third country vessels. When a geographical position is required, latitude and longitude shall be recorded in degrees and minutes if no use of GPS and in decimal degrees and minutes using GPS (format WGS 84). |
### Information concerning the fishing vessel(s) and fishing trip dates
| Paper fishing logbook Reference Number | Name of the data element (M = Mandatory) (O = Optional) (CIF = Compulsory if applicable) | Description and/or timing to be recorded | |----------------------------------------|------------------------------------------------------------------------------------------|------------------------------------------| | Information on the fishing gear | | | | (8) Gear type (M) | The type of gear shall be indicated using the codes in column 1 of Annex XI. | | | (9) Mesh size (M) | Shall be given in millimetres (mesh stretched). | | | (10) Gear dimension (M) | Gear dimensions such as the size and the number shall be given according to the specifications in column 2 of Annex XI. | | | (11) Date (M) | Date for each day at sea shall be recorded in a new line (paper logbook) or report (electronic logbook) and shall correspond to each day at sea. Where applicable, date for each fishing operation shall be recorded in a new line. | | | (12) Number of fishing operations (M) | Number of fishing operations shall be given in accordance with the specifications in column 3 of Annex XI. | | | (13) Fishing time (O) | Total time spent for all activities in connection with fishing operations (searching for fish, the shooting, towing and hauling of active gears, setting, soaking, removing or resetting of passive gears and the removal of any catch from the gear, keep nets, or from a transport cage to fattening and farming cages) shall be given in minutes and equals the number of hours spent at sea minus the time spent in transit to, between and returning from the fishing grounds, dodging, inactive or waiting for repair. For gear time set and time haul, time shall be recorded in HH-MM in local time (paper logbook) or in coordinated universal time (UTC) for electronic logbook. Fishing depth shall be recorded as average depth and in metres. | | | Gear time set and haul (CIF) | | | | Fishing depth (CIF) | | | | Total time (O) | | | | (14) Position and fishing geographical area (M) | The relevant geographical area of capture shall be represented by the area in which the majority of the catch was taken using the most detailed level when available. | |
**Examples:**
In Northeast Atlantic waters (FAO area 27), up to ICES Division and statistical rectangle (e.g. IVa 41E7, VIIIb 20E8). ICES statistical rectangles provide a grid covering the area between 36° N and 85° 30' N and 44° W and 68° 30' E. Latitudinal rows, with intervals of 30', are numbered (two-digits) from 01 to 99. Longitudinal columns, with intervals of 1°, are coded according to an alphanumeric system, beginning with A0 using a different letter for each 10° block, to M8, except I.
### Information concerning the fishing vessel(s) and fishing trip dates
| Paper fishing logbook Reference Number | Name of the data element (M = Mandatory) (O = Optional) (CIF = Compulsory if applicable) | Description and/or timing to be recorded | |----------------------------------------|------------------------------------------------------------------------------------------|------------------------------------------| | | In Mediterranean and Black sea waters (FAO area 37), up to GFCM geographical sub-area and statistical rectangle (e.g. 7 M27B9). The numbers of a rectangle in the GFCM statistical grid is a 5 digits code: (i) Latitude is covered by a composed 3 digits code (one letter and two numbers). Maximum range from M00 (30° N) up to M34 (47° 30′ N), (ii) Longitude is covered by a composed code of a letter and a number. The letter range is from A to J and number range per letter is from 0 to 9. Maximum range from A0 (6° W) up to J5 (42° E). | | | In Northwest Atlantic waters including NAFO (FAO area 21) and in Eastern Central Atlantic waters including CECAF (FAO area 34), up to FAO division or subdivision (e.g. 21.3.M or 34.3.5). | | | For the other FAO areas, up to FAO subarea when available (e.g. FAO 31 for Western Central Atlantic and FAO 51.6 for Western Indian Ocean). | | | However, optional entries may be made in respect of all the statistical rectangles in which the fishing vessel has operated during the day (O) | | | In GFCM and ICCAT areas, geographical position (latitude/longitude) shall be as well recorded for each fishing operation or at noon when no fishing has been conducted during this day. | | | When a geographical position is required, latitude and longitude shall be recorded in degrees and minutes if no GPS is used and in decimal degrees and minutes using GPS (format WGS 84). | | | Third country fishing zone, regional fisheries management organisation area and high seas: indicate the fishing zone(s) of non-Member States or the Regional Fisheries Management Organisation area(s) or the waters outside the sovereignty or jurisdiction of any State or not regulated by a Regional Fisheries Management Organisation, using ISO-3166 3-alpha country codes and other codes published in the Master Data Register page of the European Commission Fisheries website e.g. NOR = Norway, NAFO = XNW, NEAFC = XNE and XIN for high seas. | | (15)(16) Catches caught and kept on board (M) | FAO 3-alpha species codes shall be used. | | | The catch of each species shall be recorded in kilograms live weight equivalent. | Information concerning the fishing vessel(s) and fishing trip dates
| Paper fishing logbook Reference Number | Name of the data element (M = Mandatory) (O = Optional) (CIF = Compulsory if applicable) | Description and/or timing to be recorded | |----------------------------------------|------------------------------------------------------------------------------------------|------------------------------------------| | | All quantities of each species caught and kept on board above 50 kg of live-weight equivalent shall be recorded. The 50 kg threshold shall apply as soon as catches of a species exceed 50 kg. These amounts shall include quantities set aside for consumption by the crew of the vessel. Legally size catches shall be recorded using the general code LSC. Below minimum conservation reference size catches shall be recorded separately from the legally sized catches using the general code BMS. Where catches are held in baskets, boxes, bins, cartons, sacks, bags, blocks or other containers, the net weight of the unit used shall be recorded in kilograms live weight, and the precise number of such units used shall be recorded. Alternatively the catch kept on board in such units may be recorded in kilograms live weight (O). In Baltic Sea (only for salmon) and in GFCM area (only for tunas, swordfish and highly migratory sharks) and, if applicable, in other areas, number of fish caught per day shall be also recorded. If the number of columns is insufficient, a new page shall be used. | | (15)(16) Estimates of discards (M) | FAO 3-alpha species codes shall be used. The discard of each species shall be recorded in kilograms live weight equivalent. Species not subject to the landing obligation: Discards of quantities of each species above 50 kg live weight equivalent shall be recorded following the rules set up for the recording of catches using the general code DIS. Discards of species taken for live bait purposes and which are recorded in the fishing logbook, shall also be recorded in the same way. Species which benefit from exemptions to the landing obligation (2): Discards of quantities of each species shall be fully recorded following the rules set up for the recording of catches using the general code DIS. Discards of quantities of each species to which specifically de minimis exemptions apply shall be fully recorded following the rules set up for the recording of catches separately from the other discards using the general code DIM. | Information concerning the fishing vessel(s) and fishing trip dates
| Paper fishing logbook Reference Number | Name of the data element (M = Mandatory) (O = Optional) (CIF = Compulsory if applicable) | Description and/or timing to be recorded | |----------------------------------------|------------------------------------------------------------------------------------------|------------------------------------------| | (15)(16) Catches, incidental by-catches and release of other marine organisms or animals (M) | In GFMC area, the following information shall be as well recorded separately for each catch or incidental by-catch: | | | — Daily catches of red coral including fishing activity by area and depth, | | | — Incidental by-catch and release of seabirds, | | | — Incidental by-catch and release of monk seals, | | | — Incidental by-catch catch and release of sea turtles, | | | — Incidental by-catch and release of cetaceans. | | | Where applicable, marine animals released to sea shall be recorded using the general code RET. | | | FAO 3-alpha species codes shall be used or when unavailable, codes published in the Master Data Register page of the European Commission Fisheries website. |
(1) As referred to in Article 10 of Commission Regulation (EC) No 26/2004 of 30 December 2003 on the Community fishing fleet register (OJ L 5, 9.1.2004, p. 25).
(2) As referred to in Article 15(4) and Article 15(5) of Regulation (EU) No 1380/2013 of the European Parliament and of the Council of 11 December 2013 on the Common Fisheries Policy and as amended by Regulation (EU) 2015/812 of the European Parliament and of the Council of 20 May 2015, in particular: — species in respect of which fishing is prohibited and which are identified as such in a Union legal act adopted in the area of the common fisheries policy, — species for which scientific evidence demonstrates high survival rates, taking into account the characteristics of the gear, of the fishing practices and of the ecosystem, — catches falling under de minimis exemptions, — fish which shows damage caused by predators.
2. INSTRUCTIONS CONCERNING THE LANDING/TRANSHIPMENT DECLARATION
When fisheries products have been landed or transhipped, and if they have been weighted using systems approved by the competent authorities of Member States, on either the catch vessel, donor or receiving fishing vessel, then the actual weight of quantities landed or transhipped shall be indicated in kilograms product weight on the landing or transhipment declaration by species showing:
(a) Presentation of fish (reference No 17 in paper fishing logbook) using the codes in table 1 of Annex I (M);
(b) Measurement unit for landed or transhipped quantities (reference No 18 in paper fishing logbook); give the weight of the unit in kilograms product weight. This unit may be different from that entered in the fishing logbook (M);
(c) Total weight by species landed or transhipped (reference No 19 paper in paper fishing logbook); give the weight of quantities actually landed or transhipped for all species (M); Legally size catches shall be recorded using the general code LSC. Below minimum conservation reference size catches shall be recorded separately from the legally sized catches using the general code BMS. FAO 3-alpha species codes shall be used.
(d) The weight shall correspond to the product weight of fish as landed, i.e. after any processing on board. Relevant conversion factors shall be applied subsequently by the competent authorities in Member States to calculate the equivalent live weight in accordance with Article 49 of this Regulation;
(e) Signature of the master (reference No 20 in paper fishing logbook) (M);
(f) Signature and name and address of the agent and the observer where applicable (reference No 21 in paper fishing logbook);
(g) Relevant geographical area of capture: FAO area, sub-area and sub-division, ICES division, NAFO, NEAFC sub-area, CECAF area, GFCM sub area or third country fishing zone (reference No 22 in paper fishing logbook). This shall be applied in the same way as for position and geographical area information as referred above (M).
3. ADDITIONAL INSTRUCTIONS FOR RECORDING FISHING EFFORT IN THE FISHING LOGBOOK
The following additional information shall be recorded in fishing logbook by masters of Union fishing vessels for the time spent in fisheries subject to fishing effort regimes:
(a) All information required under this section shall be recorded in the paper fishing logbook between the fishing logbook references No (15) and (16).
(b) Time shall be recorded as co-ordinated universal time (UTC).
(c) Latitude and longitude shall be recorded in degrees and minutes if no GPS is used and in decimal degrees and minutes (format WGS 84) if use of GPS.
(d) Species shall be recorded using the 3-alpha FAO fish species codes.
3.1. Information concerning fishing effort
(a) Crossing an effort zone
Where an authorized fishing vessel crosses an effort zone without carrying out fishing activities in that zone, an additional line shall be completed in the paper fishing logbook or an electronic declaration shall be completed. The following information is to be entered:
— the date, — the effort zone, — the dates and times of each entry/exit, — position of each entry and exit in latitude and longitude, — catches retained on board by species at the time of entry, — the word ‘crossing’. (b) **Entry into an effort zone**
Where the fishing vessel enters an effort zone in which it is likely to carry out fishing activities, an additional line shall be completed in the paper fishing logbook or an electronic declaration shall be completed. The following information is to be entered:
— the date, — the word ‘entry’, — the effort zone, — position in latitude and longitude, — the time of entry, — catches retained on board by species at the time of entry, and — the target species.
(c) **Exit from an effort zone**
Where the vessel leaves an effort zone in which it has carried out fishing activities and where the vessel enters another effort zone in which it intends to carry out fishing activities, an additional line shall be completed in the paper fishing logbook or an electronic declaration shall be completed. The following information is to be entered:
— the date, — the word ‘entry’, — position in latitude and longitude, — the new effort zone, — the time of exit/entry, — catches retained on board by species at the time of exit/entry, and — the target species.
Where the fishing vessel leaves an effort zone in which it has carried out fishing activities and will not carry out further fishing activities in that effort zone, an additional line shall be completed or an electronic declaration shall be completed. The following information is to be entered:
— the date, — the word ‘exit’, — position in latitude and longitude, — the effort zone, — the time of departure, — catches retained on board by species at the time of exit, and — the target species.
(d) **Trans-zonal fishing activities**
Where the fishing vessel carries out trans-zonal fishing activities, an additional line in the paper logbook or an electronic declaration shall be completed. The following information is to be entered:
— the date, — the word ‘trans-zonal’,
(1) Vessels remaining within an effort zone not exceeding 5 nautical miles either side of the line separating two effort zones must record their first entry and last exit during a period of 24 hours. — the time of first exit and effort zone, — position of first entry in latitude and longitude, — the time of last entry and effort zone, — position of last exit in latitude and longitude, — catches retained on board by species at the time of exit/entry, and — the target species.
(e) Additional information for fishing vessels using static gears: — When the fishing vessel sets or resets static gears, the following information shall be entered: — the date, — the effort zone, — the position in latitude and longitude, — the words ‘setting’ or ‘resetting’, — the time. — When the fishing vessel completes static gear operations: — the date, — the effort zone, — the position in latitude and longitude, — the word ‘finish’, — the time.
3.2. Information concerning the communication of vessel movements
Where a fishing vessel carrying out fishing activities is required to communicate a fishing effort report to the competent authorities in accordance with Article 28 of the Control Regulation, the following information shall be recorded in addition to that referred to in paragraph 3.1:
(a) the date and time of the communication; (b) the geographical position of the fishing vessel in latitude and longitude; (c) the means of communication and, where applicable, the radio station used; and (d) the destination(s) of the communication.
## ANNEX XI
### GEARS AND FISHING OPERATIONS CODES
| Type of gear | Column 1 Code | Column 2 Size/number (metres) (optional) | Column 3 Number of shoots each day (mandatory) | |---------------------------------------|---------------|------------------------------------------|-----------------------------------------------| | Bottom otter trawl | OTB | Model of trawl (specify model or perimeter of opening) | Number of times gear is shot | | Nephrops trawls | TBN | | | | Shrimp trawls | TBS | | | | Bottom trawls (not specified) | TB | | | | Beam trawl | TBB | Beam length x number of beams | Number of times gear is shot | | Otter twin trawls | OTT | Model of trawl (specify model or perimeter of opening) | Number of times gear is shot | | Bottom pair trawl | PTB | Model of trawl (specify model or perimeter of opening) | | | Mid-water otter trawl | OTM | Model of trawl | | | Mid-water pair trawl | PTM | Model of trawl | | | **SEINES** | | | | | Danish anchor seine | SDN | Overall length of seine lines | Number of times gear is shot | | Scottish seine (fly dragging) | SSC | | | | Scottish pair seine (fly dragging) | SPR | | | | Seine nets (not specified) | SX | | | | Boat or vessel seine | SV | | | | **SURROUNDING NETS** | | | | | Purse seine | PS | Length, height | Number of times gear is shot | | One boat operated purse seine | PS1 | Length, height | | | Two boat operated purse seine | PS2 | | | | Without purse lines (lampara) | LA | | | | **DREDGES** | | | | | Dredge | DRB | Width x number of dredges | Number of times gear is shot | | **GILLNETS AND ENTANGLING NETS** | | | | | Gillnets (not specified) | GN | Length, height | Number of times nets shot during the day | | Gillnets anchored (set) | GNS | | | | Gillnets (drift) | GND | | | | Gillnets (circling) | GNC | | | | Combined gillnets-trammel nets | GTN | | | | Trammel net | GTR | | | | Type of gear | Column 1 Code | Column 2 Size/number (metres) (optional) | Column 3 Number of shoots each day (mandatory) | |--------------------------------------|---------------|-----------------------------------------|-----------------------------------------------| | TRAPS | | | | | Pots | FPO | Number of pots shot each day | | | Traps (not specified) | FIX | Not specified | | | HOOKS AND LINES | | | | | Handlines and pole lines (hand operated) | LHP | Total number of hooks/lines shot during the day | | | Handlines and pole lines (mechanised) | LHM | | | | Set longlines | LLS | Number of hooks and lines shot each day | | | Drifting longlines | LLD | | | | Longlines not specified | LL | | | | Trolling lines | LTL | | | | Hooks and lines (not specified) | LX | | | | HARVESTING MACHINES | | | | | Mechanised dredges | HMD | | | | Miscellaneous gear | MIS | | | | Recreational gear | RG | | | | Gear not known or not specified | NK | | | ANNEX XII
STANDARDS FOR ELECTRONIC DATA EXCHANGE
The format for electronic data exchange is based on the UN/CEFACT standard P1000. Data exchanges related to similar business activities are grouped in domains and specified in Business Requirements Specifications (BRS) documents.
Standards are available for:
- P1000 – 1; General principles
- P1000 – 3; Fishing Activity domain
- P1000 – 5; Sales domain
- P1000 – 7; Vessel Position domain
- P1000 – 12; Aggregated Catch Data Report domain
The BRS documents and the translation in computer readable form (the XML Schema Definition) are available on the Master Data Register page of the European Commission Fisheries website. Implementation documents to be used for the exchange of data are also available on this website.
### ANNEX XIII
**EUROPEAN UNION CONVERSION FACTORS FOR FRESH FISH**
| Species | Conversion Factor | |---------|------------------| | Albacore *Thunnus alalunga* | ALB | | WHL | 1,00 | | GUT | 1,11 | | Alfonsinos *Beryx spp.* | ALF | | WHL | 1,00 | | Anchovy *Engraulis encrasicholus* | ANE | | WHL | 1,00 | | Anglerfish *Lophiidae* | ANF | | WHL | 1,00 | | GUT | 1,22 | | Mackarel icefish *Champsocephalus gunnari* | ANI | | WHL | 1,00 | | Greater silver smelt *Argentina silus* | ARU | | WHL | 1,00 | | Bigeye tuna *Thunnus obesus* | BET | | WHL | 1,00 | | GUH | 1,10 | | GUH | 1,29 | | Blue ling *Molva dypterygia* | BLI | | WHL | 1,00 | | GUT | 1,17 | | Species: Brill | BLL | |---------------|-----| | *Scophthalmus rhombus* | | | WHL | 1,00 | | GUT | 1,09 |
| Species: Black scabbardfish | BSF | |-----------------------------|-----| | *Aphanopus carbo* | | | WHL | 1,00 | | GUT | 1,24 | | HEA | 1,40 |
| Species: Atlantic blue marlin | BUM | |-------------------------------|-----| | *Makaira nigricans* | | | WHL | 1,00 |
| Species: Capelin | CAP | |------------------|-----| | *Mallotus villosus* | | | WHL | 1,00 |
| Species: Cod | COD | |--------------|-----| | *Gadus morhua* | | | WHL | 1,00 | | GUT | 1,17 | | GUH | 1,70 | | HEA | 1,38 | | FIL | 2,60 | | FIS | 2,60 |
| Species: Common Dab | DAB | |---------------------|-----| | *Limanda limanda* | | | WHL | 1,00 | | GUT | 1,11 | | GUH | 1,39 |
| Species: Picked dogfish | DGS | |-------------------------|-----| | *Squalus acantbias* | | | WHL | 1,00 | | GUT | 1,35 | | GUS | 2,52 | | Species: European flounder | FLE | |---------------------------|-----| | WHL | 1,00| | GUT | 1,08| | GUS | 1,39|
| Species: Greater forkbeard | GFB | |-----------------------------|-----| | WHL | 1,00| | GUT | 1,11| | GUH | 1,40|
| Species: Greenland halibut | GHL | |-----------------------------|-----| | WHL | 1,00| | GUT | 1,08|
| Species: Haddock | HAD | |-----------------------------|-----| | WHL | 1,00| | GUT | 1,17| | GUH | 1,46|
| Species: Atlantic halibut | HAL | |-----------------------------|-----| | WHL | 1,00|
| Species: Herring | HER | |-----------------------------|-----| | WHL | 1,00| | GUT | 1,12| | GUH | 1,19|
| Species: European hake | HKE | |-----------------------------|-----| | WHL | 1,00| | GUT | 1,11| | GUH | 1,40|
| Species: White hake | HKW | |-----------------------------|-----| | WHL | 1,00| | Species: Horse mackerel | JAX | |------------------------|-----| | *Trachurus* spp. | | | WHL | 1,00| | GUT | 1,08|
| Species: Antarctic krill | KRI | |-------------------------|-----| | *Euphausia superba* | | | WHL | 1,00|
| Species: Lemon sole | LEM | |-------------------------|-----| | *Microstomus kitt* | | | WHL | 1,00| | GUT | 1,05|
| Species: Megrim | LEZ | |-------------------------|-----| | *Lepidorhombus* spp. | | | WHL | 1,00| | GUT | 1,06| | FIL | 2,50|
| Species: Unicorn icefish| LIC | |-------------------------|-----| | *Channichthys rhinoceratus* | | | WHL | 1,00|
| Species: Ling | LIN | |-------------------------|-----| | *Molva molva* | | | WHL | 1,00| | GUT | 1,14| | GUH | 1,32| | FIL | 2,64|
| Species: Atlantic mackerel | MAC | |-----------------------------|-----| | *Scomber scombrus* | | | WHL | 1,00| | GUT | 1,09|
| Species: Norway lobster | NEP | |-----------------------------|-----| | *Nephrops norvegicus* | | | WHL | 1,00| | TAL | 3,00|
| Species: Humped rockcod | NOG | |-----------------------------|-----| | *Notothenia gibberifrons* | | | WHL | 1,00| | Species | Code | WHL | GUT | GUH | FIL | |-------------------------------|------|-----|-----|-----|-----| | Norway pout *Trisopterus esmarkii* | NOP | 1,00| | | | | Marbled rockcod *Notothenia rossii* | NOR | 1,00| | | | | Orange roughy *Hoplostethus atlanticus* | ORY | 1,00| | | | | Pacific snow crab *Chionoecetes spp.* | PCR | 1,00| | | | | White shrimps *Penaeus spp.* | PEN | 1,00| | | | | European plaice *Pleuronectes platessa* | PLE | 1,00| | | | | Saithe *Pollachius virens* | POK | 1,00| 1,05| | | | Pollack *Pollachius pollachius* | POL | 1,00| 1,17| | | | Northern prawn *Pandalus borealis* | PRA | 1,00| | | | | Species: Atlantic redfishes | RED | |---------------------------|-----| | *Sebastes* spp. | | | WHL | 1,00| | GUT | 1,19|
| Species: Rough-head grenadier | RHG | |-------------------------------|-----| | *Macrourus berglax* | | | WHL | 1,00|
| Species: Roundnose grenadier | RNG | |-------------------------------|-----| | *Coryphaenoides rupestris* | | | WHL | 1,00| | GUT | 1,11| | GUH | 1,92| | GHT | 3,20|
| Species: Sandeels | SAN | |-------------------|-----| | *Ammodytes* spp. | | | WHL | 1,00|
| Species: Blackspot seabream | SBR | |-----------------------------|-----| | *Pagellus bogaraveo* | | | WHL | 1,00| | GUT | 1,11|
| Species: Rough longnose dogfish | SDH | |---------------------------------|-----| | *Deania histricosa* | | | WHL | 1,00|
| Species: Arrowhead dogfish | SDU | |---------------------------------|-----| | *Deania profundorum* | | | WHL | 1,00|
| Species: South Georgia icefish | SGI | |---------------------------------|-----| | *Pseudochaenichthys georgianus* | | | WHL | 1,00|
| Species: Common sole | SOL | |---------------------------------|-----| | *Solea solea* | | | WHL | 1,00| | GUT | 1,04|
| Species: European sprat | SPR | |---------------------------------|-----| | *Sprattus sprattus* | | | WHL | 1,00| | Species: Northern squid | SQI | |------------------------|----| | Illex illecebrosus | | | WHL | 1,00 |
| Species: Squid | SQS | |----------------|----| | Martialia hyadesi | | | WHL | 1,00 |
| Species: Skates | SRX | |-----------------|----| | Rajidae | | | WHL | 1,00 | | GUT | 1,13 | | WNG | 2,09 |
| Species: Swordfish | SWO | |--------------------|----| | Xiphias gladius | | | WHL | 1,00 | | GUT | 1,11 | | GUH | 1,31 |
| Species: Patagonian toothfish | TOP | |-------------------------------|----| | Dissostichus eleginoides | | | WHL | 1,00 |
| Species: Turbot | TUR | |-----------------|----| | Psetta maxima | | | WHL | 1,00 | | GUT | 1,09 |
| Species: Tusk | USK | |---------------|----| | Brosme brosme | | | WHL | 1,00 | | GUT | 1,14 |
| Species: Blue whiting | WHB | |-----------------------|----| | Micromesistius poutassou | | | WHL | 1,00 | | GUT | 1,15 |
| Species: Whiting | WHG | |------------------|----| | Merlangius merlangus | | | WHL | 1,00 | | GUT | 1,18 | | Species: Atlantic white marlin | WHM | |-------------------------------|-----| | Tetrapurus albidus | | | WHL | 1,00|
| Species: Witch flounder | WIT | |-------------------------------|-----| | Glyptocephalus cynoglossus | | | WHL | 1,00| | GUT | 1,06|
| Species: Yellowtail flounder | YEL | |-------------------------------|-----| | Limanda ferruginea | | | WHL | 1,00| ANNEX XIV
EUROPEAN UNION CONVERSION FACTORS FOR FRESH SALTED FISH
| Species: Ling | LIN | |--------------|-----| | Molva molva | | | WHL | 2.80|
▼B
### ANNEX XV
**EUROPEAN UNION CONVERSION FACTORS FOR FROZEN FISH**
| Species: Albacore | ALB | |-------------------|-----| | Thunnus alalunga | | | WHL | 1,00| | GUT | 1,23|
| Species: Alfonsinos | ALF | |---------------------|-----| | Beryx spp. | | | WHL | 1,00|
| Species: Anchovy | ANE | |------------------|-----| | Engraulis encrasicholus | | | WHL | 1,00|
| Species: Anglerfish | ANF | |---------------------|-----| | Lophiidae | | | WHL | 1,00| | GUT | 1,22| | GUH | 3,04| | TAL | 3,00| | FIS | 5,60|
| Species: Mackarel icefish | ANI | |---------------------------|-----| | Champsocephalus gunnari | | | WHL | 1,00|
| Species: Greater silver smelt | ARU | |-------------------------------|-----| | Argentina silus | | | WHL | 1,00|
| Species: Bigeye tuna | BET | |----------------------|-----| | Thunnus obesus | | | WHL | 1,00| | GUH | 1,29| | HEA | 1,25|
| Species: Blue ling | BLI | |-------------------|-----| | Molva dypterygia | | | WHL | 1,00| | GUT | 1,17| | GUH | 1,40| | Species: Brill | BLL | |---------------|-----| | *Scophthalmus rhombus* | WHL 1,00 |
| Species: Black scabbardfish | BSF | |-----------------------------|-----| | *Aphanopus carbo* | WHL 1,00, GUT 1,48 |
| Species: Atlantic blue marlin | BUM | |-------------------------------|-----| | *Makaira nigricans* | WHL 1,00 |
| Species: Capelin | CAP | |------------------|-----| | *Mallotus villosus* | WHL 1,00 |
| Species: Cod | COD | |--------------|-----| | *Gadus morhua* | WHL 1,00, GUT 1,17, GUH 1,70, FIL 2,60, FIS 2,60, FSP 2,95, C1 CBF 1,63 |
| Species: Common Dab | DAB | |---------------------|-----| | *Limanda limanda* | WHL 1,00 |
| Species: Picked dogfish | DGS | |-------------------------|-----| | *Squalus acantbias* | WHL 1,00, GUS 2,52 |
| Species: European flounder | FLE | |-----------------------------|-----| | *Platichthys flesus* | WHL 1,00 | | Species: Greater forkbeard | GFB | |---------------------------|-----| | *Phycis blennoides* | | | WHL | 1,00| | GUT | 1,12| | GUH | 1,40|
| Species: Greenland halibut | GHL | |-----------------------------|-----| | *Reinhardtius hippoglossoides* | | | WHL | 1,00| | GUT | 1,08| | GUH | 1,39|
| Species: Haddock | HAD | |------------------|-----| | *Melanogrammus aeglefinus* | | | WHL | 1,00| | GUT | 1,17| | GUH | 1,46| | FIL | 2,60| | FIS | 2,60| | FSB | 2,70| | FSP | 3,00|
| Species: Atlantic halibut | HAL | |---------------------------|-----| | *Hippoglossus hippoglossus* | | | WHL | 1,00|
| Species: Hering | HER | |-----------------|-----| | *Clupea harengus* | | | WHL | 1,00|
| Species: European hake | HKE | |------------------------|-----| | *Merluccius merluccius* | | | WHL | 1,00| | GUT | 1,34| | GUH | 1,67|
| Species: White hake | HKW | |---------------------|-----| | *Urophycis tenuis* | | | WHL | 1,00| | Species: Horse mackerel | JAX | |------------------------|-----| | Trachurus spp. | | | WHL | 1,00| | GUT | 1,08|
| Species: Antarctic krill | KRI | |--------------------------|-----| | Euphausia superba | | | WHL | 1,00|
| Species: Lemon sole | LEM | |--------------------------|-----| | Microstomus kitt | | | WHL | 1,00| | GUT | 1,05|
| Species: Megrim | LEZ | |---------------------------|-----| | Lepidorhombus spp. | | | WHL | 1,00| | GUT | 1,06|
| Species: Unicorn icefish | LIC | |---------------------------|-----| | Channichthys rhinoceratus | | | WHL | 1,00|
| Species: Ling | LIN | |---------------------------|-----| | Molva molva | | | WHL | 1,00| | GUT | 1,14| | GUH | 1,33| | FIL | 2,80| | FSP | 2,30|
| Species: Atlantic mackerel| MAC | |---------------------------|-----| | Scomber scombrus | | | WHL | 1,00| | GUT | 1,11|
| Species: Norway lobster | NEP | |---------------------------|-----| | Nephrops norvegicus | | | WHL | 1,00| | TAL | 3,00|
| Species: Humped rockcod | NOG | |--------------------------|-----| | Notothenia gibberifrons | | | WHL | 1,00| | Species: Norway pout | NOP | |---------------------|-----| | Trisopterus esmarkii | WHL 1,00 |
| Species: Marbled rockcod | NOR | |--------------------------|-----| | Notothenia rossii | WHL 1,00 |
| Species: Orange roughy | ORY | |------------------------|-----| | Hoplostethus atlanticus| WHL 1,00 |
| Species: Pacific snow crab | PCR | |-----------------------------|-----| | Chionoecetes spp. | WHL 1,00 |
| Species: White shrimps | PEN | |------------------------|-----| | Penaeus spp. | WHL 1,00 |
| Species: European plaice | PLE | |--------------------------|-----| | Pleuronectes platessa | WHL 1,00 | | | GUT 1,07 |
| Species: Saithe | POK | |-----------------|-----| | Pollachius virens| WHL 1,00 | | | GUT 1,19 | | | GUH 1,44 | | | FIS 2,78 | | | FSB 2,12 | | | FSP 2,43 |
| Species: Pollack | POL | |------------------|-----| | Pollachius pollachius | WHL 1,00 | | | GUT 1,17 |
| Species: Northern prawn | PRA | |-------------------------|-----| | Pandalus borealis | WHL 1,00 | | Species: Atlantic redfishes | RED | |---------------------------|-----| | WHL | 1,00| | GUT | 1,19|
| Species: Rough-head grenadier | RHG | |-------------------------------|-----| | WHL | 1,00|
| Species: Roundnose grenadier | RNG | |-------------------------------|-----| | WHL | 1,00| | GUT | 1,11| | GUH | 1,92|
| Species: Sandeels | SAN | |-------------------|-----| | WHL | 1,00|
| Species: Blackspot seabream | SBR | |------------------------------|-----| | WHL | 1,00| | GUT | 1,11|
| Species: Rough longnose dogfish | SDH | |---------------------------------|-----| | WHL | 1,00|
| Species: Arrowhead dogfish | SDU | |---------------------------|-----| | WHL | 1,00|
| Species: South Georgia icefish | SGI | |-------------------------------|-----| | WHL | 1,00| | Species: Common sole | SOL | |---------------------|-----| | Solea solea | WHL 1,00 |
| Species: European sprat | SPR | |-------------------------|-----| | Sprattus sprattus | WHL 1,00 |
| Species: Northern squid | SQI | |-------------------------|-----| | Illex illecebrosus | WHL 1,00 |
| Species: Squid | SQS | |----------------|-----| | Martialia hyadesi | WHL 1,00 |
| Species: Skates | SRX | |-----------------|-----| | Rajidae | WHL 1,00 | | | GUT 1,13 | | | WNG 2,09 |
| Species: Swordfish | SWO | |--------------------|-----| | Xiphias gladius | WHL 1,00 | | | GUT 1,12 | | | GUH 1,31 | | | HEA 1,33 | | | GHT 1,33 |
| Species: Patagonian toothfish | TOP | |-------------------------------|-----| | Dissostichus eleginoides | WHL 1,00 |
| Species: Turbot | TUR | |-----------------|-----| | Psetta maxima | WHL 1,00 | | | GUT 1,09 |
| Species: Tusk | USK | |---------------|-----| | Brosme brosme | WHL 1,00 | | Species: Blue whiting | WHB | |-----------------------|-----| | *Micromesistius poutassou* | | | WHL | 1,00| | GUT | 1,15| | FIS | 2,65| | SUR | 2,97|
| Species: Whiting | WHG | |------------------|-----| | *Merlangius merlangus* | | | WHL | 1,00| | GUT | 1,18|
| Species: Atlantic white marlin | WHM | |-------------------------------|-----| | *Tetrapturus albidus* | | | WHL | 1,00|
| Species: Witch flounder | WIT | |-------------------------|-----| | *Glyptocephalus cynoglossus* | | | WHL | 1,00|
| Species: Yellowtail flounder | YEL | |------------------------------|-----| | *Limanda ferruginea* | | | WHL | 1,00| ANNEX XVI
METHODOLOGY FOR ESTABLISHING THE SAMPLING PLANS REFERRED TO IN ARTICLES 16(1) AND 25(1) OF THE CONTROL REGULATION
This Annex lays down the methodology on the basis of which Member States shall establish the sampling plans referred to in Articles 16(1) and 25(1) of the Control Regulation for vessels not subject to fishing logbook requirements and landing declaration requirements.
1. For the purpose of this Annex the following definitions shall apply:
(a) **Active vessels**: vessels referred to in Articles 16 and 25 of the Control Regulation that have been engaged in any fishing operation (more than 0 days) during a calendar year. A vessel that has not been engaged in fishing operations during a year shall be considered ‘inactive’.
(b) **Metier**: A group of fishing operations targeting a similar (assemblage of) species, using similar gear, during the same period of the year, and/or within the same area and which are characterised by similar exploitation patterns. The allocation to a metier is determined by the fishing activity in the previous year. If one vessel has been active in one metier more than 50 % of the year it is allocated to that metier. If the fishing activity is below 50 % for any metier the vessel should be allocated to a metier named polyvalent metier.
(c) **Target population**: landings of fisheries products from active vessels using different metiers.
2. The aim of the sampling plan shall be to monitor the activities of the vessels referred to in Articles 16 and 25 of the Control Regulation and to estimate their overall catch for any given stock and by metier during the period of sampling.
3. The sampling unit shall in principle be the metier. Each vessel concerned should be assigned to one metier only.
4. The target population shall comprise landings by metier from active vessels of length of less than 10 metres.
5. The size of the sample shall be determined on the basis of the risk of non-compliance with the rules of the Common Fisheries Policy for the metier in the Member State where the landing(s) take place. The size of the sample shall be representative of the metier concerned.
6. Member States shall define risk at the following levels: ‘very low’, ‘low’, ‘medium’, ‘high’ and ‘very high’.
7. In establishing the level of risk of non compliance with the rules of the Common Fisheries Policy, Member States shall take account of all relevant criteria. These shall include, but not be limited to:
— levels of landings by the target population, involving all regulated stocks, distributed by metiers, — level of previously detected infringements for the vessel concerned, — total number of inspections carried out by metier, — availability of quota to those vessels of the target population, by metier, — use of standardized boxes.
If appropriate: — fluctuation of market price levels for the landed fisheries products, — background, and/or potential danger, of fraud link to port/location/region, and metier.
08. When drawing up the sampling plans, Member States shall take into account, the levels of metier activity during the sampling period.
09. Sampling intensity shall take into account the variability of the landings by the metier.
10. Where fisheries products are landed in standardized boxes, the minimum number boxes to be sampled shall be proportionate to the risk levels identified by Member States and as set out in the example below:
| Number of boxes landed by species | Number of boxes to be weighed subject to risk level | |----------------------------------|-----------------------------------------------| | | Very Low | Low | Medium | High | Very High | | 0-25 | 1 | 1 | 1 | 1 | 2 | | 25-50 | 1 | 2 | 3 | 4 | 5 | | 50-100 | 1 | 3 | 4 | 5 | 6 | | Every additional 100 | 1 | 1 | 2 | 3 | 4 |
11. Precision/confidence levels shall apply as are set out in Levels 2 and 3 in Point 4, Part B of Chapter II of Commission Decision 2010/93/EU (1).
12. The sampling plan shall also include information on how the overall catch for any given stock and by metier during the period of sampling will be estimated.
(1) OJ L 41, 16.2.2010, p. 8. ANNEX XVII
FISHING EFFORT REPORTING FORMATS
1. For the purposes of this Regulation in a fishing effort report:
(a) the geographical location of a fishing vessel shall be expressed in degrees and minutes of longitude and latitude;
(b) the area shall be one in which fisheries are subject to a Union regime of fishing effort;
(c) the time shall be expressed as co-ordinated universal time (UTC);
(d) where the catch retained on board is mentioned, all species which have been recorded in the fishing logbook in accordance with Article 14 of the Control Regulation shall be communicated individually in kilograms live weight equivalent; the reported quantities shall be the total quantities of each species retained on board at the time of communication of the effort report.
The species which are communicated are identified by the FAO 3-alpha code
2. Masters of Union fishing vessels shall communicate the following information in the form of an ‘effort report’ not earlier than 12 hours and at least 1 hour before an entry into an area and shall contain the following information:
(a) the heading ‘EFFORT REPORT – ENTRY’;
(b) the name, external identification and international radio call sign of the fishing vessel;
(c) the name of the master of the fishing vessel;
(d) the geographical location of the fishing vessel to which the communication refers;
(e) the area into which the fishing vessel will enter;
(f) the expected date and time of each entry into that area;
(g) the catch retained on board by species in kilograms live weight.
3. Masters of Union fishing vessels shall communicate the following information in the form of an ‘effort report’ not earlier than 12 hours and at least 1 hour before an exit from an area, and shall contain the following information:
(a) the heading ‘EFFORT REPORT – EXIT’;
(b) the name, external identification and international radio call sign of the fishing vessel;
(c) the name of the master of the fishing vessel;
(d) the geographical location in latitude and longitude of the fishing vessel to which the communication refers; (e) the area from which the fishing vessel will exit; (f) the expected date and time of each exit from that area; (g) the catch retained on board by species in kilograms live weight.
4. Notwithstanding paragraph 3, where masters of Union fishing vessels conduct trans-zonal fisheries which cross the line separating areas more than once during a period of 24 hours, provided that they remain within a delimited zone of 5 nautical miles either side of the line between areas, shall communicate their first entry and last exit within that 24 hour period;
5. Member States shall ensure that Masters of fishing vessels flying their flag comply with the reporting obligations. ANNEX XVIII
METHODOLOGY FOR CALCULATING THE AVERAGE NET WEIGHT OF BOXES OR BLOCKS OF FROZEN FISHERIES PRODUCTS
Sampling Plan
| Lot size (number of boxes) | Sample size (number of pallets × 52 boxes) | |----------------------------|--------------------------------------------| | 5 000 or less | 3 | | 5 001-10 000 | 4 | | 10 001-15 000 | 5 | | 15 001-20 000 | 6 | | 20 001-30 000 | 7 | | 30 001-50 000 | 8 | | More than 50 000 | 9 |
1. The average weight per box or block shall be determined per species using the sampling plan in the table below and, where appropriate, by presentation. The sample shall be selected randomly.
2. Each pallet of boxes or blocks shall be weighed. The total gross weight of all pallets in the sample shall be divided by the total number of pallets in the sample to arrive at the average gross weight per pallet per species and, where appropriate, by presentation.
3. In order to arrive at the net weight per box or block per species and, where appropriate, by presentation the following deductions shall be made from the average gross weight of the pallets of the sample referred to in point 2: (a) the average tare weight per box or block equal to the weight of ice and cardboard, plastic or other packaging material multiplied by the number of boxes or blocks on the pallet; (b) the average weight of empty pallets from the sample as used in the landing.
The resulting net weight per pallet per species and, where appropriate, by presentation shall then be divided by the number of boxes on the pallet.
4. The tare weight per box or block referred to in point 3(a) shall be 1,5 kg. Member States may use a different tare weight per box or block provided that they submit their sampling methodology and any changes thereto to the Commission for approval. ANNEX XIX
METHODOLOGY FOR ESTABLISHING THE SAMPLING PLANS FOR WEIGHING OF LANDINGS OF FISHERIES PRODUCTS IN MEMBER STATES REFERRED TO IN ARTICLE 60(1) OF THE CONTROL REGULATION
This Annex lays down the methodology for Member States to establish sampling plans in accordance with Article 60(1) of the Control Regulation.
1. The aim of the sampling plan shall be to ensure accurate weighing of fisheries products on landing.
2. The size of the sample to be weighed shall be determined on the basis of the risk of non compliance with the rules of the Common Fisheries Policy for the port/location/region in the Member State where the landing(s) take place.
3. Member States shall establish risk at the following levels ‘very low’, ‘low’, ‘medium’, ‘high’ and ‘very high’.
4. In establishing the level of risk of non compliance with the rules of the Common Fisheries Policy, Member States shall take account of all relevant criteria. These shall include, but not be limited to:
— levels of landings at the port/location/region involving all regulated stocks, — level of previously detected infringements linked to landings at the port/location/region, — total number of inspections carried out at the port/location/region, — availability of quota to those vessels landing at the port/location/region, — use of standardized boxes.
As appropriate:
— fluctuation of market price levels for the landed fisheries products, — risk of fraud at port/location/region.
5. The sampling shall be representative and at least as efficient as Simple Random Sampling.
6. Where fisheries products are landed in standardized boxes, the minimum number boxes to be sample weighed shall be proportionate to the risk levels identified by Member States. Preferably, Member States shall indicate the number of boxes to be weighed by means of tables for the different risk levels, as in the example below:
| Number of boxes landed by species | Number of boxes to be weighed subject to risk level | |----------------------------------|-----------------------------------------------| | | Very Low | Low | Medium | High | Very High | | 0-25 | 1 | 1 | 1 | 1 | 2 | | 25-50 | 1 | 2 | 3 | 4 | 5 | | 50-100 | 1 | 3 | 4 | 5 | 6 | | 100-200 | 2 | 4 | 5 | 6 | 7 | | Every additional 100 | 1 | 1 | 2 | 3 | 4 | 7. The sampling plan shall also include information on measures taken in order to ensure that:
— operators comply with established sampling levels, — the results of weighing determined from sampling plans are used for the purposes mentioned in Article 60(5) of the Control Regulation, — a selected number of landings of fisheries products, to be determined by each Member State on the basis of its risk analysis, are weighed in the presence of officials of the competent authorities.
8. Any risk analysis, data assessment, validation procedure, audit procedure, or other documents supporting the establishment, and further amendments, of the sampling plan shall be documented and made available for audits and inspection. METHODOLOGY FOR ESTABLISHING THE SAMPLING PLANS REFERRED TO IN ARTICLE 60(3) OF THE CONTROL REGULATION
This Annex lays down the methodology for Member States to establish sampling plans for fisheries products landed from fishing vessels permitted to weigh on board in accordance with Article 60(3) of the Control Regulation.
1. The aim of the sampling plans shall be to verify the accuracy of weighing when fisheries products are permitted to be weighed on board.
2. Member States shall ensure that sampling is carried out at the time of landing of the fisheries products from the fishing vessel on which they were weighed.
3. The size of the sample shall be determined on the basis of the risk of non-compliance with the rules of the Common Fisheries Policy (CFP) by those fishing vessels permitted to weigh fisheries products on board.
4. Member States shall establish risk at the following levels: ‘very low’, ‘low’, ‘medium’, ‘high’ and ‘very high’.
5. In establishing the level of risk of non-compliance with the rules of the Common Fisheries Policy, Member States shall take account of all relevant criteria. These shall include, but not be limited to:
— levels of landings from fishing vessels permitted to weigh catches of fisheries products on board at a port, or other location, or within a region, — levels of previously detected infringements associated with fishing vessels permitted to weigh catches of fisheries products on board, — levels of inspection activity at a port, or other location, or within a region where fisheries products are landed from fishing vessels permitted to weigh on board, — availability of quota for fishing vessels permitted to weigh fisheries products on board.
As appropriate:
— fluctuation of market price levels for the landed fisheries products, — risk of fraud at port/location/region.
6. Sampling of landings of fisheries products shall be at least as effective as simple random sampling and proportionate to the level of risk.
7. The sampling plan shall include measures to ensure that the weighing of the sample shall be carried out.
8. The number of boxes sample weighed shall be proportionate to the assessed risk level. Preferably, Member States shall indicate the number of boxes to be weighed by means of tables for the different risk levels, as in the example below:
| Number of boxes landed by species | Number of boxes to be weighed subject to risk level | |----------------------------------|-----------------------------------------------| | | Very Low | Low | Medium | High | Very High | | 0-25 | 1 | 1 | 1 | 1 | 2 | | 25-50 | 1 | 2 | 3 | 4 | 5 | 9. When fisheries products from such vessels are weighed before first marketing and the weighing takes place immediately following the landing of the lots of fisheries products, the results of weighing may be used for the purposes of the sampling plan.
10. The sampling plan shall also include measures to ensure that:
— operators comply with established sampling levels,
— without prejudice to Article 71(2) of this Regulation the results of weighing determined from sampling plans are used for the purposes mentioned in Article 60(5) of the Control Regulation,
— a selected number of landings of fisheries products, to be determined by each Member State on the basis of its risk analysis, are weighed in the presence of officials of the competent authorities.
11. Any risk analysis, data assessment, validation procedure, audit procedure, or other documents supporting the establishment, and further amendments, of the sampling plan shall be documented and made available for audits and inspection. METHODOLOGY FOR ESTABLISHING THE CONTROL PLANS REFERRED TO IN ARTICLE 61(1) OF THE CONTROL REGULATION
This Annex lays down the methodology for Member States to establish the control plans to be applied when they permit fisheries products to be weighed after transport from the place of landing to a destination on the territory of that Member State, in accordance with Article 61(1) of the Control Regulation.
1. The aim of the control plan shall be to minimise the risk of non-compliance with the rules of the Common Fisheries Policy, when a Member State permits fisheries products to be weighed after transport from the place of landing to a destination on the territory of that Member State.
2. The size of the sample shall be determined on the basis of the risk of non-compliance with the rules of the Common Fisheries Policy (CFP) associated with the permitted weighing of fisheries products after transport.
3. Member States shall define risk at the following levels ‘very low’, ‘low’, ‘medium’, ‘high’ and ‘very high’.
4. In establishing the level of risk of non-compliance with the rules of the Common Fisheries Policy, Member States shall take account of all relevant criteria. These shall include, but not be limited to:
— the levels of landings of fisheries products which are weighed after transport from the place of landing,
— levels of previously detected infringements associated with landings of fisheries products weighed after transport from the place of landing,
— known levels of transport controls,
— availability of quota for those fishing vessels making landings which are weighed after transport from the place of landing,
— use of standardized boxes by the vessels which are the provenance of the fisheries products.
As appropriate:
— fluctuation of market price levels for the landed fisheries products,
— risk of fraud at port/location/region.
5. Control plans shall include, but not be limited to.
— A programme of inspections of fisheries products where they are transported from the places of landing for weighing at other destinations on the territory of the Member State.
— Provisions regarding the availability of transport documents in accordance with Article 68 of the Control Regulation.
— Provisions regarding the verification of details of fisheries products transported with respect to data of the prior notification submitted in accordance with Article 17 of the Control Regulation, by the master of the fishing vessel landing the fisheries products. — Provisions regarding the integrity and details of seals placed on vehicles or containers used to transport such fisheries products in accordance with Article 109 of this Regulation.
— Provisions for cross checking the fishing logbook and transport document data against the records of weighing at the destination where they are weighed.
— Sample weighing of the fisheries products, in the presence of officials of the competent authorities at the destination where weighing prior to first marketing takes place. Sample sizes shall be proportionate to the assessed levels of risk. Where appropriate, Member States may incorporate the use of standardized boxes into the sample weighing procedures.
6. Where fisheries products are held in standardized boxes, a number of boxes shall be sample weighed in the presence of officials of the competent authorities of the Member State. The number of boxes sample weighed shall be proportionate to the assessed risk level. Preferably, Member States shall indicate the number of boxes to be weighed by means of tables for the different risk levels, as in the example below:
| Number of boxes landed by species | Number of boxes to be weighed subject to risk level | |----------------------------------|-----------------------------------------------| | | Very Low | Low | Medium | High | Very High | | 0-25 | 1 | 1 | 1 | 1 | 2 | | 25-50 | 1 | 2 | 3 | 4 | 5 | | 50-100 | 1 | 3 | 4 | 5 | 6 | | 100-200 | 2 | 4 | 5 | 6 | 7 | | Every additional 100 | 1 | 1 | 2 | 3 | 4 |
7. The control plan shall include measures to ensure that the sample weighing is carried out.
8. Any risk analysis, data assessment, validation procedure, audit procedure, or other documents supporting the establishment and further amendments of the control plan shall be documented and made available for audits and inspection. ANNEX XXII
METHODOLOGY FOR ESTABLISHING THE COMMON CONTROL PROGRAMME REFERRED TO IN ARTICLE 61(2) OF THE CONTROL REGULATION
This Annex lays down the methodology for Member States to establish the common control programme to be applied when the Member State in which the fisheries products are landed, permit their transport before weighing to registered buyers, registered auctions or other bodies or persons responsible for the first marketing of fisheries products in another Member State, in accordance with Article 61(2) of the Control Regulation.
1. The aim of the common control programme shall be to minimise the risk of non-compliance with the rules of the Common Fisheries Policy when Member States in which the fisheries products are landed permit their transport before weighing to registered buyers, registered auctions or other bodies or persons responsible for the first marketing of fisheries products in another Member State.
2. The size of the sample shall be determined on the basis of the risk of non-compliance with the rules of the Common Fisheries Policy (CFP) associated with the transport before weighing in another Member State.
3. Member States shall define risk at the following levels ‘very low’, ‘low’, ‘medium’, ‘high’ and ‘very high’.
4. In establishing the level of risk of non-compliance with the rules of the Common Fisheries Policy, Member States shall take account of all relevant criteria. These shall include, but not be limited to:
— the levels of landings of fisheries products which are weighed after transport from the place of landing,
— levels of previously detected infringements associated with landings of fisheries products weighed after transport from the place of landing,
— known levels of transport controls in the Member State of landing, transit and destination,
— availability of quota for those fishing vessels making landings which are weighed after transport from the place of landing,
— use of standardized boxes by the vessels which are the provenance of the fisheries products.
As appropriate:
— fluctuation of market price levels for the landed fisheries products,
— risk of fraud at port/location/region,
— fluctuations in the market price of those fisheries products which are weighed after transport from the place of landing,
— risk of fraud at a port, or other location, or within a region where landings and/or weighing of such products take place. 5. Common control programmes shall include, but not be limited to.
— A programme of inspections of fisheries products where they are transported from the places of landing for weighing at other destinations on the territory of another Member State.
— Provisions regarding the availability of transport documents in accordance with Article 68 of the Control Regulation.
— Provisions regarding the verification of details of fisheries products transported and which were submitted in accordance with Article 17 of the Control Regulation, by the master of the fishing vessel landing the fisheries products.
— Provisions regarding the integrity and details of seals placed on vehicles or containers used to transport such fisheries products in accordance with Article 109 of this Regulation.
— Provisions for cross checking the fishing logbook and transport document data against the records of weighing at the destination where they are weighed.
— Sample weighing of the fisheries products, in the presence of officials of the competent authorities at the destination where weighing prior to first marketing takes place. Sample sizes shall be proportionate to the assessed levels of risk. Where appropriate, Member States may incorporate the use of standardized boxes into the sample weighing procedures.
6. Where fisheries products are held in standardized boxes, a number of boxes shall be sample weighed in the presence of officials of the competent authorities of the Member State. The number of boxes sample weighed shall be proportionate to the risk level assessed. Preferably, Member States shall indicate the number of boxes to be weighed by means of tables for the different risk levels, as in the example below:
| Number of boxes landed by species | Number of boxes to be weighed subject to risk level | |----------------------------------|-----------------------------------------------| | | Very Low | Low | Medium | High | Very High | | 0-25 | 1 | 1 | 1 | 1 | 2 | | 25-50 | 1 | 2 | 3 | 4 | 5 | | 50-100 | 1 | 3 | 4 | 5 | 6 | | 100-200 | 2 | 4 | 5 | 6 | 7 | | Every additional 100 | 1 | 1 | 2 | 3 | 4 |
7. The common control programme shall include measures to ensure that the sample weighing is carried out.
8. Any risk analysis, data assessment, validation procedure, audit procedure, or other documents supporting the establishment and further amendments of the common control programme shall be documented and made available for audits and inspection. ANNEX XXIII
LIST OF INFORMATION REQUIRED FOR COMPLETION OF SURVEILLANCE REPORTS REGARDING SIGHTINGS AND DETECTIONS OF FISHING VESSELS
General information
1. Surveillance report reference
2. Date and time of sighting or detection (UTC)
3. Originating Member State and name of single authority
4. Type and identification of the surveillance craft
5. Position and location of the surveillance craft at the time of sighting or detection
Details of the fishing vessel 6. Flag State 7. Name 8. Registration port and external registration number 9. International radio call sign 10. International Maritime Organisation number 11. Community Fleet Register number 12. Description 13. Type 14. Initial position and location at the time of sighting or detection 15. Initial heading and speed at the time of sighting or detection 16. Activity
Other information 17. Sighting or detection mean 18. Contact with the vessel 19. Details of communication with the vessel 20. Record of sighting or detection 21. Comments 22. Attachments 23. Reporting official and signature
Instructions for completing the surveillance reports:
01. Submit as comprehensive information as possible.
02. Position in latitude and longitude and detailed location (ICES division, GFCM geographical sub-area, NAFO, NEAFC or CECAF sub-area, FAO area, sub-area and division and at land, port).
03. Flag State, vessel name, registration port, external registration number, international radio call sign and IMO number: to be obtained from what is seen or detected of, or regarding, the vessel or from radio contact with the vessel (the source of the information must be reported).
04. Description of the vessel (if observed visually): distinguishing markings as applicable: state whether the name and port of registration of the vessel was visible or not. Record hull and superstructure colours, number of masts, and position of bridge and funnel length, etc.
05. Type of vessel and gears as sighted: e.g. long liner, trawler, tug, factory ship, carrier ship (FAO international standard statistical classification of fishery vessels).
06. Activity of the sighted or detected vessel as applicable: report for each activity if the vessel was fishing, setting fishing gear, hauling, transhipping, transferring, towing, transiting, anchoring or any other activities (to be detailed) including date, time, position, heading and speed of the vessel for each activity.
07. Sighting or detection mean as applicable: detail of how sighting or detection was made such as visual, VMS, radar, radio traffic or other (to be detailed).
08. Contact with vessel: state if a contact was made (YES/NO) and the communication means (radio or other, to be detailed).
09. Details of communication: summarise any communication with the vessel with indication of the name, nationality, position given by the person(s) contacted on board of the sighted/detected vessel.
10. Record of sighting or detection: indicate if the sighting or detection was made by photograph, video, audio or written report.
11. Comments: report any other comments.
12. Attachments: if available, attach photograph or sketch of the vessel (draw the profile of the vessel, indicating any distinguishing structures, profile, masts and markings that could be used for identification).
Detailed instructions to be used for completing the reports are available on the Master Data Register page of the European Commission Fisheries website.
Rules for the electronic exchange of surveillance reports:
For the electronic exchange of surveillance reports, the XML Schema Definition is available on the Master Data Register page of the European Commission Fisheries website. Implementation documents to be used for the exchange are also available on this website. ANNEX XXIV
INFORMATION WHICH SHALL BE LISTED ON THE SECURE SUBPAGES OF SECURE WEBSITES
1. List of officials in charge of inspection (Article 116(1)(a) of the Control Regulation) with: (a) first name; (b) last name; (c) rank; (d) abbreviated name of the service they belong to; (e) a list of services in charge of, or involved in fisheries inspections. For each organisation the list shall include: — full service name — abbreviation name — complete postal address — street address (if different from postal address) — phone number — fax number — e-mail address — website URL.
2. The data from the inspection and surveillance database referred to in Article 78 of the Control Regulation (Article 116(1)(b) of the Control Regulation): (a) all data elements defined in Articles 92 and 118 of this Regulation shall be accessible; (b) the website interface shall contain functionalities to list, sort, filter, browse and derive statistics from the inspection and surveillance reports.
3. The data of the VMS referred to in Article 19 of this Regulation (Article 116(1)(c) of the Control Regulation). The minimal accessible data elements for every VMS position shall be: (a) flag state; (b) Union fleet register number; (c) international radio call sign (optional); (d) external registration letters and numbers (optional); (e) name of fishing vessel (optional); (f) date; (g) time; (h) latitude; (i) longitude; (j) course; (k) speed; (l) trip number (if available); (m) relevant alarms; (n) indication if the position was sent automatically or entered manually into the system.
The website interface shall contain functionalities to download data or visualize it on a map, filtered by fishing vessel, list of fishing vessels, fishing vessel type, period in time or geographical area.
4. The data with the fishing licences and authorisations issued and managed in accordance with Articles 3, 4 and 5 of this Regulation, with a clear indication of the conditions set out and the information on all suspensions and withdrawals (Article 116(1)(d) of the Control Regulation).
5. All data elements defined in Annexes II and III to this Regulation, defining the elements of fishing licences and authorisations shall be accessible.
These data shall be pulled from EU fleet register The interface shall contain functionalities to list, sort, filter and browse the licences and authorisations.
6. The way of measuring the continuous period of 24 hours for the control of fishing effort (Article 116(1)(e) of the Control Regulation):
The time from which the continuous period of a day present in the area is measured (formatted hh:mm in UTC).
7. The data on fishing opportunities referred to in Article 33 of the Control Regulation (Article 116(1)(f) of the Control Regulation):
All data elements on recording of catches and fishing effort shall be accessible.
8. National control action programmes (Article 116(1)(g) of the Control Regulation). A hyperlink to every national control action programme, containing the legal reference of the applicable multi-annual plan;
The definition of the web services (parameters and URL) that allow pulling all data from the electronic database for the purpose of the verification of the completeness and the quality of the data collected defined in Article 109 of the Control Regulation (Article 116(1)(h) of the Control Regulation). ANNEX XXV
TASKS OF CONTROL OBSERVERS
1. Control observers shall note all fishing activities whilst embarked in the fishing vessel, including particularly the following: (a) the date and time and geographical positions of the start and finish of each fishing operation (b) observations of the depth at the start and finish of the fishing operation (c) the type of gear used in each operation and its dimensions, including mesh sizes where applicable and attachments used (d) observations of the estimated catch in order to identify target species, by catches and discards for compliance with catch composition and discard rules (e) observations of the size of different species in the catch, with specific reference to undersize specimens.
2. Control observers shall note any interference with the satellite tracking system.
### ANNEX XXVI
**FORMAT OF CONTROL OBSERVER REPORT**
| OBSERVER DETAILS | |------------------| | Name | | Designated by (competent authority) | | Deployed by (employing authority) | | Start date | | End date |
| FISHING VESSEL DETAILS | |------------------------| | Type | | Flag state | | Name | | Community fleet register number | | External identifier | | IRCS | | IMO Number | | Engine propulsion power | | Length overall |
| GEAR TYPES CARRIED | |--------------------| | 1. | | 2. | | 3. |
| GEAR OBSERVED USED DURING TRIP | |-------------------------------| | 1. | | 2. | | 3. |
## DETAILS OF FISHING OPERATIONS
| Fishing operation reference number (if applicable) | | |---------------------------------------------------|---| | Date | | | Gear type used | | | Dimensions | | | Mesh size | | | Attachments fitted | | | Time of start of operation | | | Finish time of operation | | | Position of start of operation | | | Depth at start | | | Depth at end of operation | | | Position at end of operation | |
## CATCHES
| Estimated quantities of each species in kg live weight equivalent | Species | Retained | Discarded | |------------------------------------------------------------------|---------|----------|-----------| | Minimum conservation reference size | | | | | Below the minimum conservation reference size | | | |
| Estimated quantities of target species in kg live weight equivalent | Species | Retained | Discarded | |---------------------------------------------------------------------|---------|----------|-----------| | Minimum conservation reference size | | | | | Below the minimum conservation reference size | | | |
| Estimated quantities of target species in kg live weight equivalent | Species | Retained | Discarded | |---------------------------------------------------------------------|---------|----------|-----------| | Minimum conservation reference size | | | | | Below the minimum conservation reference size | | | |
| Estimated total kg live weight equivalent of catch | Species | Retained | Discarded | |---------------------------------------------------------------------|---------|----------|-----------| | Minimum conservation reference size | | | | | Below the minimum conservation reference size | | | | | ▼M1 | |------| | OBSERVATIONS OF NON-COMPLIANCE | | END OF THE FISHING TRIP SUMMARY | | OBSERVER SIGNATURE | | DATE | ANNEX XXVII
INSPECTION REPORTS
MINIMUM INFORMATION REQUIRED FOR COMPLETION OF INSPECTION REPORTS
Instructions for completing the inspection reports: Submit as comprehensive information as possible. Information shall be entered as applicable and available. Detailed instructions to be used for completing the reports are available on the Master Data Register page of the European Commission Fisheries website.
Rules for the electronic exchange of inspection reports: For the electronic exchange of inspection reports, the inspection XML Schema Definition is available on the Master Data Register page of the European Commission Fisheries website. Implementation documents to be used for the exchange are also available on this website.
MODULE 1: INSPECTION OF A FISHING VESSEL AT SEA
01. Inspection report reference (\*)
02. Member State and inspection authority (\*)
03. Inspection vessel (flag, name and external registration number) (\*)
04. International radio call sign (\*)
05. Date of the inspection (start) (\*)
06. Time of the inspection (start) (\*)
07. Date of the inspection (finish) (\*)
08. Time of the inspection (finish) (\*)
09. Position of the inspection vessel (latitude, longitude) (\*)
10. Location of the inspection vessel (detailed fishing area) (\*)
11. Inspector in charge (\*)
12. Nationality
13. Inspector 2 (\*)
14. Nationality
15. Target fishing vessel details (name, external registration number, flag) (\*)
16. Position and location of the vessel vessel if different from the inspection vessel (latitude, longitude, detailed fishing area) (\*)
17. Type of the vessel (\*)
18. Certificate of registry ID (\*)
19. International radio call sign (\*)
20. International Maritime Organisation number (\*)
21. Community Fleet Register number (\*)
22. Owner details (name, nationality and address) (\*)
23. Charterer details (name, nationality and address) (\*)
24. Agent details (name, nationality and address) (\*)
25. Master details (name, nationality and address) (\*)
26. Radio call pre boarding
27. Fishing log-book completed before inspection
28. Boarding ladder (\*)
29. Identification for inspectors
30. Infringements or observations (\*)
31. Inspections of documents and authorisations (\*)
32. Certificate of registry ID (\*)
33. Engine propulsion power check
34. Fishing licence details (\*)
35. Fishing authorisation details (\*)
36. VMS operational (\*)
37. Remote electronic monitoring operational (\*)
38. Number(s) of paper fishing log sheet(s) (\*)
39. E-fishing logbook reference (\*)
40. Prior notification reference (\*)
41. Purpose of notification (\*)
42. Fish room certificate
43. Stowage plan
44. Ullage tables for refrigerated sea water tanks
45. Certification for on board weighing systems
46. Membership of a producer organisation
47. Last port of call details (port, state and date) (\*)
48. Infringements or observations (\*)
49. Catch inspection (\*)
50. Catch on board details (species, quantities in live weight equivalent including for undersized fish, catch area) (\*)
51. Margin of tolerance per species (\*)
52. Separate registration of undersized fish (\*)
53. Separate stowage for demersal stocks under multi-annual plans (\*)
54. Separate stowage for undersized fish (\*)
55. Weighing check, box/container count, ullage tables or sampling
56. Registration of discard details (species, quantities) (\*)
57. Infringements or observations (\*)
58. Gear inspection (\*)
59. Gear details (type) (\*)
60. Net attachment(s) or device(s) details (type) (\*)
61. Mesh size or dimension details (\*)
62. Twine details (type, thickness) (\*)
63. Gear marking
64. Infringements or observations (\*)
65. Inspectors’ comments (\*)
66. Master’s comments (\*)
67. Action(s) taken (\*)
68. Inspectors’ signature (\*)
69. Master’s signature (\*)
(\*) Compulsory information to be collected and recorded in the database in accordance with Article 118 of this Regulation
MODULE 2: INSPECTION OF FISHING VESSEL(S) ON TRANSHIPMENT
01. Inspection report reference (\*)
02. Member State and inspection authority (\*)
03. Inspection vessel (flag, name and external registration number) (\*)
04. International radio call sign (\*)
05. Date of the inspection (start) (\*)
06. Time of the inspection (start) (\*)
07. Date of the inspection (finish) (\*)
08. Time of the inspection (finish) (\*)
09. Position of the inspection vessel (latitude, longitude) (\*)
10. Location of the inspection vessel (detailed fishing area) (\*)
11. Location of the port (\*\*)
12. Designated port (\*)
13. Inspector in charge (\*)
14. Nationality
15. Inspector 2 (\*)
16. Nationality
17. **Donor fishing vessel details (name, external registration number, flag) (\*)**
18. Position and location of the vessel (latitude, longitude, detailed fishing area) (\*)
19. Type of the vessel (\*)
20. Certificate of registry ID (\*)
21. International radio call sign (\*)
22. International Maritime Organisation number (\*)
23. Community Fleet Register number (\*)
24. Owner details (name, nationality and address) (\*)
25. Charterer details (name, nationality and address) (\*)
26. Agent details (name, nationality and address) (\*)
27. Master details (name, nationality and address) (\*)
28. VMS check pre-boarding
29. Fishing log-book completed before transhipment (\*)
30. **Infringements or observations (\*)**
31. **Inspections of documents and authorisations (\*)**
32. Certificate of registry ID (\*)
33. Fishing licence details (\*)
34. Fishing authorisation details (\*)
35. Transhipment authorisation details (\*)
36. VMS operational
37. Number(s) of paper fishing log sheet(s) (\*)
38. E-fishing logbook reference (\*)
39. Prior notification reference (\*)
40. Purpose of prior notification (including IUU regime) (\*)
41. Last port of call details (port, state and date) (\*)
42. Infringements or observations (\*)
43. Catch inspection (\*)
44. Catch on board details (before transhipment) (species, quantities in product weight including for undersized fish, presentation, catch area) (\*)
45. Margin of tolerance per species (\*)
46. Catch transhipped details (species, quantities in product weight including for undersized fish, presentation, catch area) (\*)
47. Infringements or observations (\*)
48. Receiving fishing vessel details (name, external registration number, flag) (\*)
49. Position and location of the vessel (latitude, longitude, detailed fishing area) (\*)
50. Type of the vessel (\*)
51. Certificate of registry ID (\*)
52. International radio call sign (\*)
53. International Maritime Organisation number (\*)
54. Community Fleet Register number (\*)
55. Owner details (name, nationality and address) (\*)
56. Charterer details (name, nationality and address) (\*)
57. Agent details (name, nationality and address) (\*)
58. Master details (name, nationality and address) (\*)
59. VMS check pre-boarding
60. Fishing log-book completed before transhipment (\*)
61. Infringements or observations (\*)
62. Inspections of documents and authorisations (\*)
63. Certificate of registry ID (\*)
64. Fishing licence details (\*)
65. VMS operational
66. Number(s) of paper fishing log sheet(s) (\*)
67. E-fishing logbook reference (\*)
68. Prior notification reference (\*)
69. Purpose of prior notification (\*)
70. Last port of call details (port, state and date) (\*)
71. Infringements or observations (\*)
72. Catch inspection (\*)
73. Catch on board details (before transhipment) (species, quantities in product weight including for undersized fish, presentation, catch area) (\*)
74. Catch received details (species, quantities in product weight including for undersized fish, presentation, catch area) (\*)
75. Infringements or observations (\*)
76. Inspectors' comments (\*)
77. Master(s)' comments (\*)
78. Action(s) taken (\*)
79. Inspectors' signature (\*)
80. Master(s)' signature (\*)
(\*) Compulsory information to be collected and recorded in the database in accordance with Article 118 of this Regulation
(\*\*) Additional for port state control inspection
MODULE 3: INSPECTION OF A FISHING VESSEL IN PORT OR ON LANDING AND BEFORE FIRST SALE
01. Inspection report reference (\*)
02. Member State and inspection authority (\*) (\*\*)
03. Date of the inspection (start of inspection) (\*) (\*\*)
04. Time of the inspection (start of inspection) (\*) (\*\*)
05. Date of the inspection (finish of inspection) (\*) (\*\*)
06. Time of the inspection (finish of inspection) (\*) (\*\*)
07. Location of the port (\*) (\*\*)
08. Designated port (\*) (\*\*)
09. Inspector in charge (\*)
10. Nationality
11. Inspector 2 (\*)
12. Nationality
13. Target fishing vessel details (name, external registration number, flag) (\*) (\*\*)
14. Type of the vessel (\*) (\*\*)
15. Certificate of registry ID (\*) (\*\*)
16. International radio call sign (\*) (\*\*)
▼M1 17. International Maritime Organisation number (*) (\*\*) 18. Community Fleet Register number (*) 19. Owner details (name, nationality and address) (*) (\*\*) 20. Beneficial owner details (name, nationality and address) (*) (**) 21. Charterer details (name, nationality and address) (*) 22. Agent details (name, nationality and address) (*) 23. Master details (name, nationality and address) (*) 24. VMS check pre-arrival to land (*) (**) 25. Fishing log-book completed before arrival 26. Identification for inspectors 27. Infringements or observations (*) (\*\*) 28. Inspections of documents and authorisations (*) (**) 29. Certificate of registry ID (*) 30. Fishing licence details (*) (**) 31. Fishing authorisation details (*) (\*\*) 32. Port access and landing authorisation details (*) (**) 33. Number(s) of paper fishing log sheet(s) (*) 34. E-fishing logbook reference (*) 35. Prior notification reference (\*) (**) 36. Purpose of prior notification (including IUU regime) (*) (\*\*) 37. Fish room certificate 38. Stowage plan 39. Ullage tables for refrigerated sea water tanks 40. Certification for on board weighing systems 41. Membership of a producer organisation 42. Last port of call details (date, state and port) (*) (**) 43. Infringements or observations (\*) (**) 44. Catch inspection (*) (\*\*) 45. Catch on board details (species, quantities in product weight including for undersized fish, presentation, catch area) (*) (\*\*) 46. Margin of tolerance per species (*) 47. Separate registration of undersized fish (*)
48. Catch offloaded details (species, quantities in product weight including for undersized fish, presentation, catch area) (\*) (\*\*)
49. Minimum conservation reference size checked (\*)
50. Labelling
51. Weighing check, box/container count or sampling check on discharge
52. Hold check after discharge
53. Catch weighing on landing
54. Infringements or observations (\*) (\*\*)
55. Transhipment details for catches received from other fishing vessel(s) (\*) (\*\*)
56. Donor fishing vessel(s) details (name, external registration number, international radio call sign, International Maritime Organisation number, Community Fleet Register number, flag) (\*) (\*\*)
57. Transhipment declaration details (\*) (\*\*)
58. Catch transhipped details (species, quantities in product weight including for undersized fish, presentation, catch area) (\*) (\*\*)
59. Other catch documentation (catch certificates) (\*) (\*\*)
60. Infringements or observations (\*) (\*\*)
61. Gear inspection (\*) (\*\*)
62. Gear details (type) (\*) (\*\*)
63. Net attachment(s) or device(s) details (type) (\*) (\*\*)
64. Mesh size or dimension details (\*) (\*\*)
65. Twine details (type, thickness) (\*) (\*\*)
66. Gear marking
67. Infringements or observations (\*) (\*\*)
68. Status of the fishing vessel in RFMO area(s) where the fishing or related-fishing activities have been taken place (including in any IUU fishing vessel list) (\*) (\*\*)
69. Inspectors' comments (\*)
70. Master's comment (\*) (\*\*)
71. Action(s) taken (\*)
72. Inspectors' signature (\*) (\*\*)
73. Master's signature (\*) (\*\*)
(\*) Compulsory information to be collected and recorded in the database in accordance with Article 118 of this Regulation
(\*\*) Additional for port state control inspection MODULE 4: MARKET/ PREMISES INSPECTION
01. Inspection report reference (\*)
02. Member State and inspection authority (\*)
03. Date of the inspection (start of inspection) (\*)
04. Time of the inspection (start of inspection) (\*)
05. Date of the inspection (finish of inspection) (\*)
06. Time of the inspection (finish of inspection) (\*)
07. Location of the port (\*)
08. Inspector in charge (\*)
09. Nationality
10. Inspector 2 (\*)
11. Nationality
12. Identification for inspectors
13. Market or premises inspection details (name and address) (\*)
14. Owner details (name, nationality and address) (\*)
15. Owner representative details (name, nationality and address) (\*)
16. Inspected fisheries products details (species, quantities in product weight including for undersized fish, presentation, catch area, originating vessel(s) identification) (\*)
17. Registered buyer, auction centre or other bodies or persons responsible for the first marketing of fisheries products details (name, nationality and address) (\*)
18. Minimum conservation reference size checked (\*)
19. Labelling for traceability (\*)
20. Common marketing standards (\*)
21. Size categories
22. Freshness categories
23. Fisheries products subject to storage mechanism inspected
24. Fisheries products weighed before sale
25. Weighing systems calibrated and sealed
26. Infringements or observations (\*)
27. Inspection of documents related to inspected fisheries products (\*)
28. Landing declaration details
29. Take-over declaration details
30. Transport document details
31. Supplier invoices and sales notes details
32. IUU catch certificate details
33. Importer details (name, nationality and address)
34. Infringements or observations (\*)
35. Inspectors' comments (\*)
36. Operator's comments (\*)
37. Action(s) taken (\*)
38. Inspectors' signature (\*)
39. Operator's signature (\*)
(\*) Compulsory information to be collected and recorded in the database in accordance with Article 118 of this Regulation
MODULE 5: INSPECTION OF TRANSPORT VEHICLE
01. Inspection report reference (\*)
02. Member State and inspection authority (\*)
03. Date of the inspection (start) (\*)
04. Time of the inspection (start) (\*)
05. Date of the inspection (finish) (\*)
06. Time of the inspection (finish) (\*)
07. Location of inspection (address) (\*)
08. Inspector in charge (\*)
09. Nationality
10. Inspector 2 (\*)
11. Nationality
12. Identification for inspectors
13. Target vehicle details (type and nationality) (\*)
14. Tractor identification (registration plate number) (\*)
15. Trailer identification (registration plate number) (\*)
16. Owner details (name, nationality and address) (\*)
17. Driver details (name, nationality and address) (\*)
18. Inspection of documents related to fisheries products (\*)
19. Fisheries products weighed before transport (species, quantities in product weight including for undersized fish, presentation, catch area, originating vessel(s) identification) (\*)
20. Destination of the vehicle (\*)
21. Transport document details
22. Electronic transmission of the transport document to the flag Member State
23. Fishing logbook of the originating vessel attached to the transport document
24. Electronic transmission of the fishing logbook of the originating vessel to the flag Member State
25. Other catch document attached to transport document (catch certificate)
26. Transport document received before arrival by the landing or marketing Member State
27. Landing declaration details
28. Take-over declaration details
29. Take-over cross check with landing declaration
30. Sales note or invoices details
31. Labelling for traceability
32. Sample weighing of box/containers
33. Weighing systems calibrated and sealed
34. Weighing record
35. Vehicle or container sealed
36. Seal details noted on the transport document
37. Inspection authority who affixed the seals (\*)
38. Status of seals (\*)
39. Infringements or observations (\*)
40. Fisheries products transported before weighing (species, quantities in product weight including for undersized fish, presentation, catch area, originating vessel(s) identification) (\*)
41. Destination of the vehicle (\*)
42. Transport document details
43. Electronic transmission of the transport document to the flag Member State
44. Fishing logbook of the originating vessel attached to the transport document
45. Electronic transmission of the fishing logbook of the originating vessel to the flag Member State
46. Transport document received before arrival by the landing or marketing Member State
47. Landing declaration details
48. Weighing of fisheries products observed on arrival at destination by Member State competent authorities
49. Registered buyer, auction centre or other bodies or persons responsible for the first marketing of fisheries products details (name, nationality and address) (\*)
50. Vehicle or container sealed
51. Seal details noted on the transport document
52. Inspection authority who affixed the seals (\*)
53. Status of seals (\*)
54. Infringements or observations (\*)
55. Inspectors' comments (\*)
56. Transporter's comments (\*)
57. Action(s) taken (\*)
58. Inspectors' signature (\*)
59. Transporter's signature (\*)
(\*) Compulsory information to be collected and recorded in the database in accordance with Article 118 of this Regulation ANNEX XXVIII
MARKING OF FISHERY INSPECTION MEANS
INSPECTION PENNANT OR SYMBOL
All vessels used for fisheries control inspection and enforcement shall carry the inspection pennant or symbol clearly displayed on the sides of the unit used in such a way to be clearly visible. Vessels engaged in these duties shall fly the inspection pennant as to be clearly visible at all times.
The words ‘FISHERY INSPECTION’ may also be affixed on the sides of units. CONSTRUCTION AND USE OF BOARDING LADDERS
01. The provisions of this Annex shall apply to safe and convenient access to fishing vessels which require a climb of 1.5 metres or more.
02. A boarding ladder shall be provided which shall be efficient for the purpose of enabling inspectors to embark and disembark safely at sea. The boarding ladder shall be kept clean and in good order.
03. The ladder shall be positioned and secured so that:
(a) it is clear of any possible discharges from the fishing vessel;
(b) it is clear of the finer lines and as far as practicable in the middle length of the fishing vessel;
(c) each step rests firmly against the fishing vessel’s side.
04. The steps of the boarding ladder shall:
(a) be of hardwood or other material of equivalent properties, made in one piece free of knots; the four lowest steps may be made of rubber of sufficient strength and stiffness, or of other suitable material of equivalent characteristics;
(b) have an efficient non-slip surface;
(c) be not less than 480 mm long, 115 mm wide, and 23 mm in thickness, excluding any non-slip device or grooving;
(d) be equally spaced not less than 300 mm or more than 380 mm apart;
(e) be secured in such a manner that they will remain horizontal.
05. No boarding ladder shall have more than two replacement steps which are secured in position by a method different from that used in the original construction of the ladder and any steps so secured shall be replaced, as soon as reasonably practicable, by steps secured in position by the method used in the original construction of the ladder.
When any replacement step is secured to the side ropes of the boarding ladder by means of grooves in the side of the step, such grooves shall be in the longer sides of the steps.
06. The side ropes of the ladder shall consist of two uncovered manila or equivalent ropes not less than 60 mm in circumference on each side; each rope shall be left uncovered by any other material and be continuous with no joints below the top step; two main ropes, properly secured to the fishing vessel and not less than 65 mm in circumference, and a safety line shall be kept at hand ready for use if required.
07. Battens made of hardwood, or other material of equivalent properties, in one piece, free of knots and between 1.8 and 2 m long, shall be provided at such intervals as will prevent the boarding ladder from twisting. The lowest batten shall be on the fifth step from the bottom of the ladder and the interval between any batten and the next shall not exceed nine steps.
08. Means shall be provided to ensure safe and convenient passage for inspectors embarking on or disembarking from the vessel between the head of the boarding ladder or of any accommodation ladder or other appliance provided, and the ship’s deck. Where such passage is by means of a gateway in the rails or bulwark, adequate handholds shall be provided.
09. Where such passage is by means of a bulwark ladder, such ladder shall be securely attached to the bulwark rail or platform and two handhold stanchions shall be fitted at the point of boarding or leaving the vessel not less than 0,70 m or more than 0,80 m apart. Each stanchion shall be rigidly secured to the vessel’s structure at or near its base and also at a higher point, shall be not less than 40 mm in diameter, and shall extend not less than 1,20 m above the top of the bulwark.
10. Lighting shall be provided at night so that both the boarding ladder over the side and also the position where the inspector boards the fishing vessel shall be adequately lit. A lifebuoy equipped with a self-igniting light shall be kept at hand ready for use. A heaving line shall be kept at hand ready for use if required.
11. Means shall be provided to enable the boarding ladder to be used on either side of the fishing vessel. The inspector in charge may indicate which side he would like the boarding ladder to be positioned.
12. The rigging of the ladder and the embarkation and disembarkation of an inspector shall be supervised by a responsible officer of the fishing vessel.
13. Where on any fishing vessel constructional features such as rubbing bands would prevent the implementation of any of these provisions, special arrangements shall be made to ensure that inspectors are able to embark and disembark safely.
### ANNEX XXX
**POINTS TO BE ASSIGNED FOR SERIOUS INFRINGEMENTS**
| No | Serious infringement | Points | |----|----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|--------| | 1 | Not fulfilling of obligations to record and report catch or catch related data, including data to be transmitted by satellite vessel monitoring system (Article 90 paragraph 1 of the Control Regulation in conjunction with Article 42 paragraph 1(a) and Article 3 paragraph 1(b) of Regulation (EC) No 1005/2008) | 3 | | 2 | Use of prohibited or non-compliant gear according to Union legislation (Article 90 paragraph 1 of the Control Regulation in conjunction with Article 42 paragraph 1(a) and Article 3 paragraph 1(e) of Regulation (EC) No 1005/2008) | 4 | | 3 | Falsification or concealing of markings, identity or registration (Article 90 paragraph 1 of the Control Regulation in conjunction with Article 42 paragraph 1(a) and Article 3 paragraph 1(f) of Regulation (EC) No 1005/2008) | 5 | | 4 | Concealing, tampering or disposal of evidence relating to an investigation (Article 90 paragraph 1 of the Control Regulation in conjunction with Article 42 paragraph 1(a) and Article 3 paragraph 1(g) of Regulation (EC) No 1005/2008) | 5 | | 5 | Taking on board, transhipping or landing of undersized fish in contravention of the legislation in force (Article 90 paragraph 1 of the Control Regulation in conjunction with Article 42 paragraph 1(a) and Article 3 paragraph 1(i) of regulation (EC) No 1005/2008) | 5 | | 6 | Carrying out of fishing activities in the area of a regional fisheries management organisation in a manner inconsistent with or in contravention of the conservation and management measures of that organisation (Article 90 paragraph 1 of the Control Regulation in conjunction with Article 42 paragraph 1(a) and Article 3 paragraph 1(k) of Regulation (EC) No 1005/2008) | 5 | | 7 | Fishing without a valid licence, authorisation or permit issued by the flag State or the relevant coastal State (Article 90 paragraph 1 of the Control Regulation in conjunction with Article 42 paragraph 1(a) and Article 3 paragraph 1(a) of Regulation (EC) No 1005/2008) | 7 | | 8 | Fishing in a closed area or during a closed season, without or after attainment of a quota or beyond a closed depth (Article 90 paragraph 1 of the Control Regulation in conjunction with Article 42 paragraph 1(a) and Article 3 paragraph 1(c) of Regulation (EC) No 1005/2008) | 6 | | 9 | Directed fishing for a stock which is subject to a moratorium or for which fishing is prohibited (Article 90 paragraph 1 of the Control Regulation in conjunction with Article 42 paragraph 1(a) and Article 3 paragraph 1(d) of Regulation (EC) No 1005/2008) | 7 | | No | Serious infringement | Points | |----|----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|--------| | 10 | Obstruction of work of officials in the exercise of their duties in inspecting for compliance with the applicable conservation and management measures or the work of observers in the exercise of their duties of observing compliance with the applicable Union rules (Article 90 paragraph 1 of the Control Regulation in conjunction with Article 42 paragraph 1(a) and Article 3 paragraph 1(h) of Regulation (EC) No 1005/2008) | 7 | | 11 | Transhipping to or participating in joint fishing operations with, support or re-supply of fishing vessels identified as having engaged in IUU fishing under Regulation (EC) No 1005/2008, in particular those included in the Union IUU vessel list or in the IUU vessel list of a regional fisheries management organisation (Article 90 paragraph 1 of the Control Regulation in conjunction with Article 42 paragraph 1(a) and Article 3 paragraph 1(j) of Regulation (EC) No 1005/2008) | 7 | | 12 | Use of a fishing vessel with not nationality and that is therefore a stateless vessel in accordance with international law (Article 90 paragraph 1 of the Control Regulation in conjunction with Article 42 paragraph 1(a) and Article 3 paragraph 1(l) of Regulation (EC) No 1005/2008) | 7 |
### ADDITIONAL DATA FOR THE PURPOSE OF THE VALIDATION SYSTEM
| Data element | Code | Content | Compulsory/Optional | |-------------------------------------|------|-------------------------------------------------------------------------|---------------------| | 1. Business rules | BUS | Business rules that define which validations are executed in the validation system | | | 2. Business rule ID | BR | Unique code for every type of check, validation, control etc. | C | | 3. Primary dataset | D1 | Indicates which dataset is being validated | C | | 4. Secondary dataset | D2 | Indicates with which dataset(s) the primary dataset is validated | C | | 5. EU legislation reference | LE | Reference to which regulation and articles apply | C | | 6. Legal requirement | RQ | Short summary of what is the legal requirement | C | | 7. Validation specification | VS | Detailed specification of what is being validated | C | | 8. Inconsistencies of validation | INC | Inconsistencies detected as a result of the validation procedures | | | 9. Record No of the inconsistency | RN | Unique identifier or record number of the inconsistency | C | | 10. Business rule ID | BR | Unique code for every type of check, validation, control etc. | C | | 11. Record No of the validated record | RV | Unique identifier or record number of the validated record from the primary dataset | C | | 12. Inconsistency Type | IY | Type of inconsistency detected | C | | 13. Inconsistency Value | IV | Value/difference/size of detected inconsistency (if relevant) | CIF | | 14. Original value | OR | Original value before correction | C | | 15. Follow-up | FU | Explanation of why data is inconsistent and follow-up | O | | 16. Results of follow-up | FR | Corrected value for this inconsistency | CIF | | 17. Follow-up completed | FX | Indication if follow-up is completed or still in process | CIF | | 18. Date follow-up completion | FD | The date on which the issue has been fully resolved or the result of the infringement procedure is known | CIF | | 19. Infringement procedure | IP | Reference to related infringement procedure or legal action taken by the authorities, if applicable | CIF | | Data element | Code | Content | Compulsory/Optional | |--------------------------------------|------|-------------------------------------------------------------------------|---------------------| | 20. Validation information | VAL | The validation information on a particular element and business rule. To be used as subelement of the validated element. | | | 21. Date of validation | VD | Date of validation | C | | 22. Reference to inconsistency | RI | Unique identifier or record number of the inconsistency | CIF | | 23. VMS data | VMS | Position data coming from the Vessel Monitoring System | | | 24. Country of registration | FS | Flag State of vessel registration. ISO alpha-3 country code | C | | 25. Vessel’s Community fleet register (CFR) number | IR | With format AAXXXXXXXXXXXX where A is an uppercase letter being the country of first registration within the EU and X being a letter or a number | C | | 26. International Radio Call Sign | RC | International Radio Call Sign, if CFR not up to date or not existing | CIF | | 27. Name of vessel | NA | Name of the vessel | O | | 28. Trip No | TN | Fishing trip serial number | C | | 29. Record No | RN | Unique sequential record number assigned to every record | C | | 30. Date and Time | DT | Date and time of transmission | C | | 31. Position sub-declaration | POS | Position when discarded (see details of sub-elements and attributes of POS) | C | | 32. Speed | SP | Vessel speed in knots (nn.n) | C | | 33. Course | CO | Vessel course in degrees (0-360) | C | | 34. Date and Time received by authority | DR | Date and time of registration at authority | C | | 35. Manual | MA | Indicates if data is received electronically or manually entered (Y/N) | C | | 36. Date and time manual data entry | DM | Date and time of manual data entry into the database, in case of manually entered | CIF | ANNEX XXXIII
INFORMATION WHICH SHALL BE LISTED ON THE PUBLIC SUBPAGES OF PUBLICLY ACCESSIBLE WEBSITES
1. The responsible authorities for issuing fishing licences and authorisations (Article 115(a) of the Control Regulation): (a) authority name; (b) complete postal address; (c) street address (if different from postal address); (d) phone number; (e) fax number; (f) e-mail address; (g) website URL.
2. List of designated ports for the purpose of transhipment (Article 115(b) of the Control Regulation) containing: (a) port name; (b) port code according to the UN/LOCODE system; (c) coordinate with the location of the port; (d) operating hours; (e) address or description of transhipment places.
3. List of designated ports defined in a multiannual plan (Article 115(c) of the Control Regulation) containing: (a) port name; (b) port code according to the UN/LOCODE system; (c) coordinate with the location of the port; (d) operating hours; (e) address or description of landing or transhipment places; (f) the associated conditions for recording and reporting the quantities of the species under the multiannual plan for each landing.
4. Real-time closures by Member States (Article 115(d) of the Control Regulation): (a) the national legal reference to the decision establishing the real-time closure; (b) a list of coordinates defining the contours of the closure; (c) the start date and time; (d) the end date and time; (e) conditions governing fisheries in that area during the closure; (f) a map indicating the delimitation of the closure.
5. Contact point details for the transmission or submission of fishing logbooks, prior notifications, transhipment declarations, landing declarations, sales notes, take-over declarations and transport documents (Article 115(e) of the Control Regulation):
(a) contact point name; (b) complete postal address; (c) street address; (d) phone number; (e) fax number; (f) e-mail address; (g) website URL (if applicable).
6. Real-time closures by the Commission (Article 115(f) of the Control Regulation):
a) a list of coordinates defining the contours of the closure in the waters of the Member State concerned; (b) the start date and time; (c) the end date and time; (d) conditions governing fisheries in that area during the closure; (e) a map indicating the delimitation of the closure.
7. Decision to close a fishery (Article 115(g) of the Control Regulation):
(a) the national legal reference; (b) the concerned stock or group of stocks subject to a quota deemed to be exhausted or the maximum allowable fishing effort deemed to have been reached; (c) the fishing area code; (d) the start date; (e) the fishery or gear type (where appropriate).
### I. Request for information
| Applicant authority | Requested authority | |---------------------|---------------------| | — Member State | — Member State | | — name | — name | | — address | — address | | — contact details of the official in charge | — contact details of the official in charge |
| Date of transmission of the request | Provide all information available | |-------------------------------------|----------------------------------| | Reference number applicant authority | Provide all information available | | No. of attachments to this request | Provide all information available | | Details on the natural or legal person and/or fishing vessel subject to the request | Provide all information available for the identification of concerned fishing vessels, masters, holders of fishing licences and/or fishing authorisations, owner, etc |
**Information requested on**
- ☐ possible non-compliance with the rules of the Common Fisheries Policy or serious infringements referred to in Article 90(1) of the Control Regulation
- Provide detailed questions and necessary background information and justification for the request
- ☐ possible infringements of the Control Regulation or this Regulation
- Provide detailed questions and necessary background information and justification for the request
- Request for the supply of documents or certified true copies in the possession of the requested authority in accordance with Article 158(4) of this Regulation
- Provide detailed questions and necessary background information and justification for the request
- Any other general information or question II. Reply
| Applicant authority | Requested authority | |---------------------|---------------------| | — Member State | — Member State | | — name | — name | | — address | — address | | — contact details of the official in charge | — contact details of the official in charge |
| Date of transmission of the request | Reference number applicant authority | |-------------------------------------|--------------------------------------| | | |
| Date of transmission of the reply | Reference number requested authority | |-----------------------------------|--------------------------------------| | | |
| No. of attachments to this reply | Information requested on | |----------------------------------|--------------------------| | | □ possible non-compliance with the rules of the Common Fisheries Policy or serious infringements referred to in Article 90(1) of the Control Regulation | | | □ possible infringement of the Control Regulation or this Regulation | | | □ Request to carry out administrative enquiries | | | □ Request for the supply of documents or certified true copies in the possession of the requested authority in accordance with Article 158(4) of this Regulation | | | Any other information |
Provide all relevant information available or gathered in the context of the request
Provide all relevant information available or gathered in the context of the request
Provide details and results of the administrative enquiries carried out
List the documents provided and attach as annex to this reply form STANDARD FORM FOR THE REQUEST FOR ADMINISTRATIVE NOTIFICATION ACCORDING TO ARTICLE 161(2) OF THIS REGULATION
I. Request for administrative notification
| Applicant authority | Requested authority | |---------------------|---------------------| | — Member State | — Member State | | — name | — name | | — address | — address | | — contact details of the official in charge | — contact details of the official in charge |
Date of transmission of the request
Reference number applicant authority
No. of attachments to this request
| Details on the natural or legal person subject to the request | Information on the subject of the instrument or decision to be notified | |-------------------------------------------------------------|------------------------------------------------------------------------| | Provide all information available for the identification of the addressee of the administrative notification | Provide all possible information on the subject of the instrument or decision to be notified | ANNEX XXXVI
STANDARD FORM FOR THE REPLY FOR ADMINISTRATIVE NOTIFICATION ACCORDING TO ARTICLE 161(3) OF THIS REGULATION
| Applicant authority | | |---------------------|--| | — Member State | | | — name | | | — address | | | — contact details of the official in charge | |
| Requested authority | | |---------------------|--| | — Member State | | | — name | | | — address | | | — contact details of the official in charge | |
| Date of transmission of the request | | |-------------------------------------|--|
| Reference number applicant authority | | |--------------------------------------|--|
| Date of transmission of the reply | | |-----------------------------------|--|
| Reference number requested authority | | |--------------------------------------|--|
| No. of attachments to this reply | | |----------------------------------|--|
| Requested notification | | |------------------------|--|
| Information on the requested notification: | | |--------------------------------------------|--| | — Date of notification to the addressee | Indicate date in case of successful notification | | — failure of notification | Indicate reasons in case of failed notification |
| Other information | | |-------------------|--| ANNEX XXXVII
LIST OF MINIMUM INFORMATION TO FORM THE BASIS FOR 5 YEARLY REPORT ON THE APPLICATION OF THE CONTROL REGULATION
1. GENERAL PRINCIPLES SUMMARY Articles 5 to 7 of the Control Regulation
2. GENERAL CONDITIONS FOR ACCESS TO WATERS AND RESOURCES SUMMARY
2.1 Article 6 of the Control Regulation FISHING LICENCES: — Number of fishing licences issued — Number of fishing licences temporarily suspended — Number of fishing licences permanently withdrawn — Number of fishing licensing infringements detected
2.2 Article 7 of the Control Regulation FISHING AUTHORISATION: — Specific national schemes notified to the commission — Number of fishing authorisations issued — Number of fishing authorisations suspended — Number of fishing authorisations permanently withdrawn — Number of fishing authorisation infringements detected
2.3 Article 8 of the Control Regulation MARKING OF THE FISHING GEAR: — Number of infringements detected
2.4 Article 9 of the Control Regulation FISHING VESSEL MONITORING SYSTEMS — Number of fishing vessels \<12 and >15 metre length overall with operational VMS installed — Number of fishing vessels 15 metres length overall and above with operational VMS installed — Number of fishing auxiliary vessels fitted with operational VMS — Number of fishing vessels less than 15 metres exempted from VMS — Number of VMS infringements detected concerning Union fishing vessels — Details of competent authority responsible for FMC
2.5 Article 10 of the Control Regulation AUTOMATIC IDENTIFICATION SYSTEM (AIS) — Number of fishing vessels fitted with AIS — Number of FMCs AIS capable
2.6 Article 11 of the Control Regulation VESSEL DETECTION SYSTEMS (VDS) — Number of FMCs VDS capable
2.7 Article 13 of the Control Regulation NEW TECHNOLOGIES — Pilot projects implemented
3. CONTROL OF FISHERIES SUMMARY CONTROL OF THE USE OF FISHING OPPORTUNITIES
3.1 Articles 14, 15 and 16 of the Control Regulation COMPLETION AND SUBMISSION OF FISHING LOGBOOKS AND LANDING DECLARATIONS — Number of fishing vessels using the electronic fishing logbook — Number of fishing vessels using paper format fishing logbook — Number of under 10 metre fishing vessels using paper fishing logbook — Number of vessel fishing logbook and landing declaration infringements detected
3.2 Articles 16 and 25 of the Control Regulation FISHING VESSELS NOT SUBJECT TO VESSEL FISHING LOGBOOK AND LANDING DECLARATION REQUIREMENTS — Number of fishing vessels subject to sampling plans — Number of fishing vessels subject to monitoring by sales notes — Number of infringements detected
3.3 Article 17 of the Control Regulation PRIOR NOTIFICATION — Number of prior notification messages received by FMC — Number of infringements detected 3.4 Article 18 of the Control Regulation PRIOR NOTIFICATION OF LANDING IN ANOTHER MEMBER STATE — Number of prior notification messages received by FMC of coastal state — Number of infringements detected
3.5 Article 20 of the Control Regulation TRANSHIPMENT OPERATIONS IN PORTS OR PLACES — Number of transhipments approved by member state — Number of infringements detected
3.6 Articles 21 and 22 of the Control Regulation TRANSHIPMENT OPERATIONS IN PORTS OR PLACES — Number of exempted fishing vessels
3.7 Article 26 of the Control Regulation MONITORING OF FISHING EFFORT — Number of infringements detected involving fishing effort reports — Number of vessels excluded from fishing effort regimes by areas — Number of infringements detected where gear not notified
3.8 Articles 33 and 34 of the Control Regulation RECORDING OF CATCHES AND FISHING EFFORT — Implementation of Article 33 of the Control Regulation — Details of fisheries closure notifications made each year
3.9 Article 35 of the Control Regulation CLOSURE OF FISHERIES — Implementation of Article 35 of the Control Regulation
4. CONTROL OF FLEET MANAGEMENT
4.1 Article 38 of the Control Regulation FISHING CAPACITY — Compliance with Article 38(1) of the Control Regulation — Number of engine power verifications in accordance with Article 41 — Number of infringements detected
4.2 Article 42 of the Control Regulation TRANSHIPMENT IN PORT — Number of pelagic transhipments approved 4.3 Article 43 of the Control Regulation DESIGNATED PORTS — Number of infringements detected
4.4 Article 44 of the Control Regulation SEPARATE STOWAGE OF DEMERSAL CATCHES SUBJECT TO MULTI ANNUAL PLANS — Number of infringements detected
4.5 Article 46 of the Control Regulation NATIONAL CONTROL ACTIONS PROGRAMMES — Details of programmes defined by Member States — Number of infringements detected
5. CONTROL OF TECHNICAL MEASURES SUMMARY
5.1 Article 47 of the Control Regulation — Number of stowage of gear infringements detected
5.2 Article 48 of the Control Regulation RETRIEVAL OF LOST GEAR — Number of infringements detected
5.3 Article 49 of the Control Regulation CATCH COMPOSITION — Number of infringements detected
6. CONTROL OF FISHING RESTRICTED AREAS SUMMARY
6.1 Article 50 of the Control Regulation — Number of infringements detected for EU and third country vessels
7. REAL TIME CLOSURE OF FISHERIES SUMMARY
7.1 Article 53 of the Control Regulation — Details of real time closures initiated — Number of infringements detected 8. CONTROL OF RECREATIONAL FISHERIES
SUMMARY
8.1 Article 55 of the Control Regulation — Number of infringements detected of illegal marketing detected
9. CONTROL OF MARKETING
SUMMARY
9.1 Article 56 of the Control Regulation PRINCIPLES FOR THE CONTROL OF MARKETING — Details of state of implementation
9.2 Article 57 of the Control Regulation COMMON MARKETING STANDARDS — Number of infringements detected
9.3 Article 58 of the Control Regulation TRACEABILITY — State of implementation — Number of infringements detected
9.4 Article 59 of the Control Regulation FIRST SALE — Number of registered buyers, registered auctions or other bodies or persons responsible for the first marketing of fisheries products — Number of infringements detected
9.5 Article 60 of the Control Regulation WEIGHING — Number of sampling plans for weighing on landing — Number of fishing vessels permitted to weigh at sea — Number of infringements
9.6 Article 61 of the Control Regulation WEIGHING AFTER TRANSPORT — Number of control plans to weigh after transport — Number of Common Control Programmes with other member States for transporting before weighing — Number of infringements detected
9.7 Article 62 of the Control Regulation COMPLETION AND SUBMISSION OF SALES NOTES — Number of above submitted electronic sales notes — Number of exemptions granted from sales notes requirements — Number of infringements detected
9.8 Article 66 of the Control Regulation TAKE OVER DECLARATIONS — Number of infringements detected
9.9 Article 68 of the Control Regulation COMPLETION AND SUBMISSION OF TRANSPORT DOCUMENTS — State of implementation — Number of infringements detected
10. PRODUCER ORGANISATIONS AND PRICE AND INTERVENTION SUMMARY
10.1 Article 69 of the Control Regulation MONITORING OF PRODUCER ORGANISATIONS — Number of checks accomplished — Number of infringements regarding Regulation (EC) No 104/2000 detected
10.2 Article 70 of the Control Regulation MONITORING OF PRICE AND INTERVENTION ARRANGEMENTS — Number of price and intervention checks accomplished — Number of infringements detected
11. SURVEILLANCE SUMMARY
11.1 Article 71 of the Control Regulation SIGHTINGS AND DETECTION AT SEA — Number of reports created — Number of reports received — Number of infringements detected
11.2 Article 73 of the Control Regulation CONTROL OBSERVERS — Number of control observer schemes implemented — Number of control observer reports received — Number of infringements reported 12. INSPECTION AND ENFORCEMENT
SUMMARY
12.1 Articles 74 and 76 of the Control Regulation
CONDUCT OF INSPECTIONS
— Number of full/part time fisheries inspectors — Percentage of working time of full/part time fisheries inspectors spent on fisheries control and inspection — Number of inspections by type by full/part time inspectors — Number of infringements detected by full/part time inspectors
12.2 INSPECTION RESOURCE: VESSELS
— Number of EU co-financed dedicated inspection vessels and total annual patrol days at sea — Number of non EU co-financed dedicated inspection vessels and total annual patrol days at sea — Percentage of total operational time spent on fisheries control by EU co-financed dedicated inspection vessels — Percentage of total operational time spent on fisheries control by non EU co-financed dedicated inspection vessels — Percentage of total operational time spent on fisheries control by all dedicated inspection vessels — Percentage of total working time spent on fisheries control by dedicated inspection vessels co financed by the EU — Number of non dedicated inspection vessels and total annual patrol days at sea — Percentage of time spent on fisheries control — Total days at sea all vessels
12.3 INSPECTIONS ACTIVITY: AT SEA
— Number of inspections at sea of all fishing vessels of each Member State — Number of infringements detected at sea by Member State — Number of inspections at sea on third country fishing vessels (indicate third country) — Number of infringements detected auxiliary fishing vessels
12.4 INSPECTION RESOURCE: SURVEILLANCE AIRCRAFT
— Number of surveillance aircraft dedicated to fisheries control and total hours on fisheries control and surveillance — Percentage of operational hours spent on fisheries control and surveillance — Number of infringements detected 12.5 FOLLOW UP OF INSPECTIONS AND INFRINGEMENTS DETECTED — Number of surveillance reports input to fisheries control and surveillance database — Number of inspection reports input to fisheries control and surveillance database — Number of occasions penalty points awarded — Number of proceedings transferred to another member state — Number of infringements detected by community inspectors within Member State jurisdiction
12.6 Article 75 of the Control Regulation DUTIES OF THE OPERATOR — Number of infringements detected
12.7 Article 79 UNION INSPECTORS — Number of Joint Deployment Plans (JDP) within Member States jurisdiction — Number of infringements detected during JDPs
12.8 Articles 80, 81, 82, 83 and 84 of the Control Regulation INSPECTIONS OF FISHING VESSELS OUTSIDE THE WATERS OF THE INSPECTING MEMBER STATE — Number of inspections — Number of infringements detected
12.9 Articles 85 and 86 of the Control Regulation PROCEEDINGS OF INFRINGEMENTS DETECTED IN THE COURSE OF INSPECTIONS — Number of inspections — Number of infringements — Number of proceedings transferred to flag state — Number of inspections by Union inspectors
13. ENFORCEMENT SUMMARY Articles 89, 90 and 91 of the Control Regulation MEASURES TO ENSURE COMPLIANCE — State of implementation
13.1 Article 92 of the Control Regulation PENALTY POINTS SYSTEM — Number of serious infringements detected — Number of occasions when points awarded to licence holder 13.2 Article 93 of the Control Regulation NATIONAL REGISTER OF INFRINGEMENTS — State of implementation
14. CONTROL PROGRAMMES
14.1 Article 94 of the Control Regulation COMMON CONTROL PROGRAMMES — Number of Common control programmes implemented
14.2 Article 95 of the Control Regulation SPECIFIC CONTROL AND INSPECTION PROGRAMMES — Number of specific control and inspection programmes implemented
15. DATA AND INFORMATION ANALYSIS AND AUDIT OF DATA
15.1 Articles 109 to 116 of the Control Regulation — Summary of state of implementation
16. IMPLEMENTATION
16.1 Articles 117 and 118 of the Control Regulation ADMINISTRATIVE AND MUTUAL CO-OPERATION
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b0ab12312da271f71142c51e097e4b0be04e1276 | Code of Practice for CCTV surveillance system Located at The Cemetery Offices and Chapels, Bouncers Lane Cheltenham 1.1. Management of the scheme
1.2. A risk assessment has been carried out to assess the need and requirements of CCTV systems at the Cemetery Office and Chapels. This risk assessment is reviewed on an annual basis by the Building Manager.
1.3. The cameras covering the entrance/exits, reception/cash handling area of the Cemetery Office and those covering the South and North Chapels, have been sited to capture images which are relevant to the identified purposes of the installation.
1.4. The scheme will be operated using overt cameras which are sited so as not to intrude unreasonably on members of the public or staff. The CCTV scheme seeks to comply with both the Data Protection Act 1988 and the Commissioners code of practice.
1.5. The owners, users and any visitors to the control, monitoring and recording facilities will be required to sign a formal confidentiality declaration. They will treat any viewed and/or written material as being strictly confidential and will undertake not to divulge it to any other person.
1.6. Those who have authorised access (Bereavement Services Manager, Senior Building Services Surveyor, and others as appropriate) are aware of the purpose(s) for which the scheme has been established and that the CCTV equipment is only used to achieve the identified purposes which are:
(a) To contribute to the provision of a safe and secure environment for the benefit of those employed, visiting or using the Cemetery Offices and Chapels (b) To protect the Council’s building and assets (d) To assist in identifying, apprehending and prosecuting offenders (e) To assist in the coordination of funeral services.
1.7. Scheme and Signage
1.8. This scheme aims to provide surveillance of the public areas within the Cemetery Office and Chapels, in order to fulfil the purposes of the scheme as listed above. The area protected by CCTV will be indicated by the presence of signs. The signs will be placed so that the public are aware that they are entering a zone which is covered by surveillance equipment. The signs will state that the Cheltenham Borough Council as being the organisation responsible for the scheme, the purposes of the scheme (Crime prevention, public safety and the coordination of funeral services) and a contact telephone number (01242 244245)
1.9. Data will not be held for longer than necessary and disposal of information will be regulated by the Bereavement Services Manager. The disposal of records happens as part of a managed process and is adequately documented within the service document retention schedule
1.10. Point of contact
1.11. All enquiries for further information about the system should be addressed to:
Bereavement Services Manager Cheltenham Borough Council Bouncers Lane Cheltenham
Tel: 01242 244245 Email: [email protected] 1.12. **Release of information (subject access)**
1.13. Individuals may request to view information concerning them held on record in accordance with the Data Protection Act 1998. Any request from an individual for the disclosure of personal data which he/she believes is recorded by virtue of the system will be directed in the first instance to the Customer Relations Manager. They will be required to request any information with reasons in writing and must be able to satisfactorily prove their identity and provide sufficient information to enable the data to be located.
1.14. Information will be released if the reasons are deemed acceptable, the request and release of information complies with current legislation and on condition that the information is not used for any other purpose than that specified.
1.15. The information may not be released if disclosure to the data subject would prejudice the criminal enquiries or criminal proceedings.
1.16. Information on how to obtain an application form can be found on Cheltenham Borough Council web site www.cheltenham.gov.uk or by writing to Customer Relations.
1.17. **Access to data by third parties and statutory prosecuting bodies**
1.18. Access to images by third parties will only be allowed in limited and prescribed circumstances. Disclosure will be limited to the following:-
- Law enforcement agencies where the images recorded would assist in a specific criminal enquiry
- Prosecution agencies
- Legal representatives.
1.19. The media, where it is assessed by the Police that the public's assistance is needed in order to assist in the identification of victim, witness or perpetrator in relation to a criminal incident. As part of that assessment the wishes of the victim of an incident should be taken into account.
1.20. The policy is to assist statutory prosecuting bodies such as the Police, and statutory authorities with powers to prosecute and facilitate the legitimate use of the information derived from the scheme.
1.21. Statutory bodies may have access to information permitted for disclosure on application to the owner of the scheme (Building Manager) or the manager (Bereavement Services Manager), these applications must be in writing and provide the reasons and statement of purpose, according with the objectives of the scheme and conditions outlined above.
1.22. The information will be treated as evidential exhibits.
1.23. **System Registration**
1.24. All Council systems are registered with the Information Commissioner's Office (ICO) 1.25. **Accountability**
1.26. Cheltenham Borough Council supports the principle that the community at large should be satisfied that the Public CCTV systems are being used, managed and controlled in a responsible and accountable manner and that in order to meet this objective there will be independent assessment and scrutiny.
1.27. A member of the public wishing to make a complaint about the system may do so through the Cheltenham Borough Council complaints procedure and by contacting The Crem Manager.
1.28. A copy of the Code of Practice will be made available to anyone on request by contacting the CCTV system owner (Building Manager) or System Manager (Bereavement Services Manager)
1.29. **CCTV Control Management And Operation**
1.30. Access to the monitoring and recording area is restricted.
1.31. Only those persons with a legitimate purpose will be permitted access to the Control, Recording and Monitoring system.
1.32. The System Manager (Bereavement Services Manager) or in his/her absence the Cem & Crem Team Leader is authorised to determine who has access to the monitoring area. This will normally be:
- Authorised Personnel (including Council Representatives)
- Police officers requiring to view a particular incident, or intelligence or evidential purposes. These visits will take place by prior appointment.
- Engineers and cleaning staff (These people will receive supervision throughout their visit)
1.33. Inspectors/Auditors may visit the monitoring and recording facility without prior appointment.
1.34. Organised visits by authorised persons are to be conducted in controlled circumstances. All visitors to the monitoring and recording area, including Police Officers, will be required to sign a visitors log and a declaration of confidentiality.
1.35. **Observation and recording of incidents**
1.36. Recording will be throughout a 24 hour period. The system will be monitored on the basis of operational necessity. Images will be held for approximately 16 days and they will then be over recorded.
1.37. **Privacy And Disclosure Issues**
1.38. Cameras will not be used to infringe individual’s rights of privacy.
1.39. All employees will be aware of the restrictions set out in this Code of Practice in relation to access to, and disclosure of, recorded images
1.40. Images not required for the purposes of the scheme will not be retained longer than necessary
1.41. The Duty Manager will only disclose to third parties who intend processing the data for purposes which are deemed compatible with the objectives of the CCTV system 1.42. Monitors displaying images from areas in which individuals would have an expectation of privacy will not be viewed by anyone other than authorised persons.
1.43. Recorded material will only be used for the purposes defined in the objectives of this policy.
1.44. Access to recorded material will be in accordance with policy and procedures.
1.45. Information will not be disclosed for commercial purposes and entertainment purposes.
1.46. All access to the medium on which the images are recorded will be documented.
1.47. Access to recorded images will be restricted to those staff who need to have access in order to achieve the purpose(s) of using the equipment.
1.48. Viewing of the recorded images should take place in a restricted area.
1.49. Access to recorded images
1.50. Access to recorded images will be restricted to the Bereavement Services Manager or other designated member of staff who will decide whether to allow requests for access by third parties in accordance with the disclosure policy. Those requests must be in writing.
1.51. Monitoring employees
1.52. As the Cemetery Chapels CCTV is located in a workplace it inevitably captures pictures of employees, even if they are not the main subject of surveillance. The purpose of the CCTV is not to monitor the amount of work done nor compliance with company procedures. However, if there is a breach in Council procedures then CCTV footage can be used for reference purposes.
1.53. The overt monitoring of any employee using CCTV can only be done with the consent of the Director and after consultation with HR GOSS.
1.54. The covert monitoring of employees must not take place unless it has been specifically authorised in advance using the codes of practice, guidance and procedures under The Regulation of Investigatory Powers Act 2000. There is no covert monitoring that takes place on this site.
1.55. Recorded Material Management
1.56. Images, that are not required for the purpose(s) for which the equipment is being used will not be retained for longer than is necessary. The detail as to how long data should be held will be defined within the service retention schedule. While images are retained access to and security of the images will be controlled in accordance with the requirements of the Data Protection Act.
1.57. Recorded material should be of high quality. In order for recorded material to be admissible in evidence total integrity and continuity must be maintained at all times.
1.58. Security measures will be taken to prevent unauthorised access to, alteration, disclosure, accidental loss or destruction of recorded material. 1.59. Recorded material will not be released to organisations outside the ownership of the system other than for training purposes or under the guidelines referred to previously.
1.60. Images retained for evidential purposes will be retained in a secure place where access is controlled – safe in the strong room.
1.61. The system records features such as the location of the camera and/or date and time reference.
1.62. In order to ensure that clear images are recorded at all times the equipment for making recordings will be maintained in good working order with regular servicing in accordance with the manufacturer’s instructions.
1.63. **Recorded Material Register**
1.64. There will be a register documenting the access to recorded media.
1.65. **Documentation**
1.66. Log books must be sequential in order that pages or entries cannot be removed and full and accurate records kept.
1.67. **Administrative documents**
The following shall be maintained:
- Media tracking register
- occurrence/incident book
- visitors register
- maintenance of equipment, whether routine or breakdown
- list of installed equipment | Task | Action | Completed | |----------------------------------------------------------------------|------------------------------------------------------------------------|-----------| | Risk assessment to be documented | Rob H | | | Disposal of Records Copies of CDs given to Police etc? | Design a disposal of records log sheet for CCTV | Rob H | | Query system registration – look as though the existing registration might need amending | Contact Karen Watson | | | Visitors log to control room and CCTV | Create visitor log book and declaration of confidentiality | Rob H | | Training notes on using the system to be created | Rob H | | | Training to be given to staff and poss TM | Rob H | | | Manual to be produced With fault logs, maintenance agreements, list of installed equipment | Rob H | | | Brief staff | Rob h | | | Check interpretation of employees monitoring | Rob with Karen and Bryan | | | Publish | Rob H | |
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f9ca0be3fffc9ffc7926e18364e7932503c699b5 | Memorandum of Understanding (MoU) between The National Archives and Jisc
1. Introduction
1.1 This MoU establishes a framework for co-operation between The National Archives (hereon TNA) and Jisc. It sets out the role of each organisation and explains how they will work together to achieve their shared and common goals.
1.2 Its aims are to:
- Facilitate discussion on matters of common interest, particularly by sharing knowledge, information, expertise and best practice;
- Set out the basis on which the organisations will cooperate in respect to achieving their corporate aims and responsibilities;
- Provide a framework for co-operation in identifying shared strategic aims and ambitions.
1.3 The MoU is published on both organisations’ websites. It will be reviewed after two years and more frequently if required by developments in TNA’s and Jisc’s respective organisations and among their stakeholders.
1.4 The MoU is not legally binding and is a non-contractual agreement between the two organisations.
2 Overview of Jisc’s role and responsibilities
Jisc’s vision is for the UK to be the most digitally advanced higher and further education and research nation in the world. Its mission is to enable people in higher education, further education and skills in the UK to perform at the forefront of international practice by exploiting fully the possibilities of modern digital empowerment, content and connectivity. To achieve this vision, each day Jisc will continue both to power teaching, learning and research and inspire its digital transformation.
Jisc will achieve the vision in 5 key ways:
1. By continuing to develop our Janet network, the foremost national research and education network in the world;
2. By focusing our products on the areas that make the most difference and offering solutions tailored to the unique challenges of the education and research sectors;
3. By making membership of Jisc meaningful through two-way relationships with individual members and the HE, FE and skills sectors;
4. By continuing to build a strong, financially sustainable, position;
5. By operating to high standards of efficiency and effectiveness.
In relation to libraries, special collections and archives, Jisc will ensure that UK researchers, teachers and learners have excellent access to rich and wide ranging content via sustainable and convenient discovery mechanisms and high quality data. The services and other resources that Jisc provide will deliver benefits to universities and colleges in three ways. Firstly, they will enhance the capability of libraries, archives and special collections to manage their collections more efficiently and effectively. Secondly, they will allow researchers, teachers and learners to more readily find and access a greater variety of materials that will enhance their work and shape new forms of scholarship. And thirdly, they will make a tangible contribution to the overall quality of data that makes its way into the discovery data ecosystem, through the promotion of more standardised data formats and by fostering good data creation practices.
3 Overview of The National Archives’ roles and responsibilities
The National Archives is one of the world’s most valuable resources for research and we are an independent research organisation in our own right. As the official archive and publisher for the UK government, and England and Wales, we are the guardian of some of the UK's most iconic national documents, dating back over 1,000 years. Our role is to collect and secure the future of the government record, both digital and physical, to preserve it for generations to come, and to make it as accessible and available as possible. We bring together the skills and specialisms needed to conserve some of the oldest historic documents as well as leading digital archive practices to manage and preserve government information past, present and future. We are the leadership body for the archives sector in England and work with over 2,500 archives.
In 2015, we launched our four year, audience-based strategy, Archives Inspire. Archives Inspire recognises the academic community as one of The National Archives’ four key audiences, alongside the public, government, and wider archives sector. It recognises the need for us to continually refine our offer to our academic audience and reinvigorate our ability to deliver ground breaking inter-disciplinary research, while continuing to build on our strengths as leaders and supporters of the archives sector through the development and launch of a new strategic vision, Archives Unlocked. These ambitions come at a time that The National Archives, and all of our audiences, are facing new opportunities and challenges posed by digital technology, which has created the need for a comprehensive programme of digital research as outlined by our Digital Research Roadmap and Digital Strategy.
4. General cooperation
4.1. TNA and Jisc recognise that they have complementary expertise and overlapping interests, especially in relation to providing valued and effective digital services and producing high-quality, inter-disciplinary research to help face the collective digital challenge. As a result of these synergies, TNA and Jisc will endeavour to cooperate and work together on a broad range of issues. They will share knowledge, expertise, best practice and intelligence in relation to matters of mutual interest, and if there is overlap in a particular area, they will proactively consider formal collaboration.
4.2. TNA and Jisc are committed to the principle of good communication with each other, especially when one organisation’s work may have some bearing on the responsibilities or remit of the other organisation. Both TNA and Jisc will seek to alert each other as soon as practical to relevant developments within their respective sectors and resources, especially when pertaining to Discovery and Archives Hub.
4.3. Senior colleagues from TNA and Jisc will meet on a biannual basis to discuss matters of mutual interest and the operation of this MoU. These meetings will be underpinned by regular liaison between designated officials on a quarterly basis or as and when required.
5. Supporting and enhancing discoverability
5.1 TNA and Jisc have been at the forefront of enhancing users’ discovery of archival collections through their respective development of Discovery and Archives Hub. Both of these resources provide a valuable service to a diverse range of users, enabling them to navigate, identify, and utilise a massive array of archival material from across the UK and beyond. Discovery and Archives Hub are complementary systems and inhabit a central space within the UK’s discovery/catalogue infrastructure. Both TNA and Jisc are committed to working together to enhance both systems and to explore the interoperability of data between them to improve the user experience and to highlight the interconnectivity between collections.
5.2 TNA and Jisc are committed to engaging with members of the archive profession and users of archives, particularly those working within a Higher Education environment, to explore ways of enhancing both Discovery and Archives Hub in order to avoid the duplication of effort and to ensure that the relative strengths of each are identified and disseminated.
6. Developing the digital skills of archivists and other content managers
6.1 TNA and Jisc will proactively work to support capacity-building of digital skills for all those managing archives and collections. By identifying skills gaps and areas for development, TNA and Jisc will collaborate to overcome these through the provision of advice, guidance and training. Where it is appropriate, and feasible to do so, Jisc will support TNA to implement the action plan of the Government’s strategic vision for the Archives Sector, Archives Unlocked. The skills in question include the acquisition, description, presentation, discoverability and preservation of digital collections; and are predicated on the widespread use of agreed shared standards and the broad adoption of models of good practice.
6.2 TNA and Jisc agree to openly and proactively encourage the undertaking and dissemination of research into key cross-sector trends, developments and opportunities to their joint and respective audiences.
7. Mutual stakeholder engagement
7.1 TNA and Jisc will collaborate to provide quality networking and training opportunities for their shared stakeholders within the further and higher education sectors, archive sector, and wider research communities, which include the members of the Higher Education Archives Programme (HEAP). 8. Developing the digital research skills of the archive and collection user
8.1 TNA and Jisc agree to explore ways of enhancing the digital skills of users and increasing their research capability through raising awareness of the possibilities of digital research techniques (for both analogue and digital collections); and by familiarising them with established and emerging techniques for describing content.
9. Identifying joint research agendas
9.1. TNA and Jisc will work with one another, shared stakeholders, and members of the Higher Education Archives Programme, to explore the potential for joint research initiatives to help inform and address shared digital challenges. These should provide tangible outputs from the relationship, be in support of both organisations’ interests, and be of use to the wider archive sector.
10. Exclusions
10.1. This MoU only relates to joint initiatives as agreed and detailed above or in the associated relationship ‘action plan’. The signing of this MoU does not inhibit TNA’s involvement in projects funded by Jisc, either outright or in partnership, or TNA’s ability to receive funding from Jisc in its own right. This MoU does not provide TNA any advantage or disadvantage when applying to Jisc for funding, for which TNA will be subject to the same terms, conditions, and application process as any other applicant.
Agreement
Jisc and TNA agree to enter into the spirit and word of this MoU and to review this after two years or at a moment required by developments.
Chief Executive and Keeper
On behalf of The National Archives
Executive Director, Digital Resources
On behalf of Jisc
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6a91771b7eae15b4de4d824f67dee44c2ab6528f | Memorandum of understanding between The National Archives and Research Libraries UK (RLUK)
1. Introduction
1.1 The memorandum of understanding (MoU) maintains a formal framework for co-operation between Research Libraries UK (RLUK) and The National Archives following the signature of a MoU covering the period 2014-2016. It sets out the role of each organisation and explains how they will work together to achieve their shared goals over the period 2017-2020.
1.2 Its aims are to:
1.2.1 Facilitate contact and discussion on matters of common interest, particularly by sharing knowledge, information, expertise and best practice; 1.2.2 Set out the basis on which the organisations will co-operate in respect to achieving their corporate aims and responsibilities; 1.2.3 Provide a framework for co-operation in identifying shared strategic aims and ambitions.
1.3 The MoU is published on both organisations’ websites. It will be reviewed every two years and more frequently if required by developments in The National Archives’ and RLUK’s respective sectors and amongst their stakeholders.
1.4 The MoU is not legally binding and is a non-contractual agreement between the two organisations.
2. Overview of RLUK’s role and responsibilities
Research Libraries UK (RLUK) is a consortium of 37 of the largest research organisations in the UK and Ireland, including the three UK national libraries. Founded in 1983, RLUK has directly and indirectly sponsored some of the major free online UK resources in support of research, including Copac, the de facto UK Union Catalogue. RLUK’s mission is to work with its members and partners, nationally and internationally, to shape and to realise the vision of the modern research library. RLUK is a registered and incorporated charity.
3. Overview of The National Archives’ roles and responsibilities
The National Archives is the official archive of the UK Government and the national archive for England and Wales. It preserves, protects, and provides access to over 1,000 years of history and its collections stretch from medieval parchments to contemporary digital records. It is the official publisher of the UK government and is the leadership body for the archives sector in England, working with more than 2,000 archives of all shapes and sizes.
In 2015, The National Archives’ launched its four year, audience-based strategy, Archives Inspire. Archives Inspire recognises the academic community and archives sector as two of The National Archives’ four key audiences, alongside the public and government. It recognises the need for The National Archives to continually refine its offer to its academic audience and reinvigorate its ability to deliver ground breaking inter-disciplinary research, whilst continuing to build on its strengths as archive sector leader through the development and launch of a pioneering strategic vision for the archives sector, Archives Unlocked. The National Archives is committed to working in partnership when delivering its strategic aims to ensure the widest possible benefit to the archival and academic communities.
4. General co-operation
4.1. The National Archives and RLUK recognise that they have complementary expertise and overlapping interests, especially in relation to The National Archives’ archive sector leadership responsibilities and its status as an Independent Research Organisation (IRO), and RLUK’s role as the leading consortium of the research library community. Both organisations are committed to supporting current and future researchers and to support the principles of open access. The National Archives and RLUK will endeavour to co-operate and work together to achieve these aims. They will share knowledge, expertise, best practice and intelligence in relation to matters of mutual interest, and if there is overlap in a particular area, seek to collaborate formally.
4.2. The organisations are committed to the principle of good communication with each other, especially when one organisation’s work may have some bearing on the responsibilities or remit of the other. Both The National Archives and RLUK will seek to alert each other as soon as practical to relevant developments within their respective sectors.
4.3. The National Archives and RLUK will actively support one another in the development of their strategic plans and policies and provide commentary and advice from their respective sectors and organisations when appropriate.
4.4. Senior members of staff from The National Archives and RLUK will meet on an annual basis to discuss matters of mutual interest and the operation of this MoU. These meetings will be underpinned by regular liaison between their officials on a quarterly basis or as and when required.
4.5. The organisations will ensure that it is clear who the appropriate contacts are for particular matters and that contact details are kept up to date.
5. Promoting collaboration
5.1. The encouragement of greater collaboration between archives and the wider heritage, cultural, and academic sectors sits at the heart of the Government’s vision for archives, Archives Unlocked, and The National Archives’ Academic Engagement and Research Roadmap. The National Archives and RLUK will encourage cross-sector collaboration between their respective stakeholders, explore the nature of collective opportunities, and examine tangible solutions to joint challenges. 5.2. The National Archives and RLUK agree to encourage enhanced collaboration between the archive, Unique and Distinct Collections (UDC) and academic sectors, whether through knowledge sharing, highlighting opportunities to their stakeholders, and facilitating opportunities to encourage enhanced collaboration. Primarily this will be through their joint organisation and facilitation of the Discovering Collections, Discovering Communities conference series, the Higher Education Archives Programme, and joint research and guidance where appropriate.
6. Sharing best practice
The National Archives and RLUK agree to share best practice to their stakeholders in areas of mutual interest through case studies, publications, and dissemination of video content arising from the DCDC conference series. Both organisations agree to actively develop the latter as a major cross-sector resource through the continued development of the conference series website (www.dcdcconference.com).
7. Sharing skills and knowledge
The National Archives and RLUK will actively encourage the sharing of knowledge and experience between their respective organisations and stakeholders. They agree to examine the creation of formal routes for targeted knowledge exchange between The National Archives and RLUK members, as well as convening regular round-tables and workshops to foster discussion and debate surrounding shared challenges and opportunities more widely.
8. Identifying joint research agendas
The National Archives and RLUK agree to actively investigate areas of joint research when it fits with their corporate priorities and areas of mutual interest. They will seek to commission research jointly and engage with their respective communities in its creation to ensure maximum applicability and visibility.
9. Articulating the academic and cultural impact of archives
The National Archives and RLUK will co-operate to raise the profile of archival and UDC collections, and explore the ways in which their economic and cultural impact within society can be recorded and measured. Both parties will examine ways of establishing formal frameworks of research to demonstrate the impact that collections can have on research, wherever they are held.
10. Build networks of collaboration amongst like-minded stakeholders
The National Archives and RLUK will actively look to engage with third parties and like-minded stakeholders to enhance the reach and scope of their joint activities and collaboration. Where appropriate, they will look to broaden the range and variety of organisations involved in joint initiatives to maximise their impact and visibility, whilst ensuring cost effectiveness for all parties. 11. Engaging with key national and international stakeholders to understand policy directions for archival research in all disciplines
The process of allocating research funding and the collecting and building up of archival repositories in digital and analogue forms is crucially linked. RLUK and The National Archives will look to engage with members of the national and international research community to understand and influence policy directions, communicate these to their respective stakeholders, and examine collaborative ways of taking advantage of these for mutual benefit.
12. Cementing co-operation and partnership
The National Archives and RLUK both agree to actively explore means of cementing future co-operation through the establishment of formal frameworks for sustainable co-operation.
13. Agreement
The National Archives and RLUK agree to enter into the spirit and word of this MoU and to review this after two years or at a moment required by developments.
On behalf of The National Archives
Jeff James, Chief Executive and Keeper
On behalf of Research Libraries UK
David Prosser, Executive Director
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dbcb2d67cce73044cd03c35d90492fdb6b975b7c | AGENCY AGREEMENT BETWEEN THE SECRETARY OF STATE FOR TRANSPORT AND THE OFFICE OF RAIL REGULATION
This AGREEMENT is made between the Secretary of State for Transport ("the Secretary of State") and the Office of Rail Regulation ("ORR") under paragraph 7 of Schedule 3 to the Railways Act 2005. It relates to functions which ORR has agreed to perform on behalf of the Secretary of State, being functions which in the opinion of the Secretary of State can appropriately be performed by ORR in connection with its safety functions.
IT IS HEREBY AGREED that:
1. Subject to the provisions of this Agreement, the functions specified in the Schedule shall be performed on behalf of the Secretary of State by ORR.
2. ORR and the Secretary of State shall each provide the other with such information as they may at any time reasonably require in connection with the performance of the functions specified in the Schedule.
3. This Agreement shall come into effect on 20 October 2008 and shall terminate at a time agreed by both parties or on the expiry of 28 days following receipt of a written notice given by either party to this Agreement to the other.
4. Where requests and applications for the Secretary of State to exercise any of the functions specified in the Schedule have been received by the Secretary of State before 20 October 2008 the Secretary of State shall continue to exercise functions in relation to such requests and applications.
Signed by ........................................
Chris Carr Deputy Director on behalf of the Secretary of State for Transport
Date: 17th October 2008
Signed by ........................................
Bill Emery Chief Executive of the Office of Rail Regulation on behalf of the Office of Rail Regulation
Date: 9th October 2008 SCHEDULE
FUNCTIONS OF THE SECRETARY OF STATE TO BE PERFORMED BY THE OFFICE OF RAIL REGULATION
1. The function under section 1 of the Level Crossings Act 1983 ("the 1983 Act") of making any order in relation to a level crossing, except in cases where:
a) the crossing operator has not requested an order or has requested an order in compliance with a notice given to him by ORR under the powers in section 1(6A) of the 1983 Act; or
b) a draft order raises issues relating to:
(i) the designation or otherwise of rights of way; or
(ii) the safety or convenience of road users other than the users of the level crossing; or
c) ORR and the Secretary of State agree that the interests of those affected by an order would be best served by the Secretary of State making the order.
2. The function under section 42 of the Road and Rail Traffic Act 1933 of giving of any direction in relation to a level crossing.
3. The function under section 64(2) of the Road Traffic Regulation Act 1984 of authorising the erection or retention of a traffic sign other than one specified in Regulations made under section 64(1) of that Act, (to the extent that such functions have not been devolved) provided that:
a) the sign is at or near a level crossing;
b) the road in question is a road to which the public have access; and
c) the sign is one which is prescribed (albeit for another purpose) in Regulations made under section 52 of the Transport and Works Act 1992.
4. Functions in any private Act authorising the construction of a transport system (where "transport system" is construed in accordance with regulation 2 of the Railways and Other Guided Transport Systems (Safety) Regulations 2006) with regard to the –
a) approval of plans, sections and other details of proposals with respect to any works, plant or equipment;
b) giving of permission for the use of any part of such a system and the prescribing of conditions for the safety of persons using such a system.
5. The function under section 24 of the Channel Tunnel Act 1987 of approving—
a) the description of trains used for conveying passengers or goods through the tunnel system; and
b) the specifications to which those trains are required to conform.
6. Functions under any order made under the Light Railways Act 1896 to approve, consent to or allow any matter or thing or to prescribe or lay down any condition or requirement (however expressed) in relation to the safety of a light railway.
7. Functions under any order made under the Transport and Works Act 1992 relating to, or to matters ancillary to, the safe operation of a transport system of a kind specified in section 1 of that Act including—
a) approvals for the use of motive power on the railway or tramway; and
b) approvals in connection with barriers and protective equipment at or near level crossings.
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69013407e15072cb76b4c29238a111ee9b7dce5a | MEMORANDUM OF UNDERSTANDING BETWEEN THE OFFICE OF RAIL REGULATION AND THE ROADS AND TRANSPORT AUTHORITY
Signed by His Excellency Mattar Mohammed Al Tayer, Chairman of the Board & Executive Director on behalf of the Roads and Transport Authority:
[Signature]
Date: 17-12-08
Signed by Bill Emery, Chief Executive on behalf of the Office of Rail Regulation:
[Signature]
Date: 11th Dec '08 Purpose
1. This Memorandum of Understanding (MoU) is between the Office of Rail Regulation (ORR) and the Roads and Transport Authority (RTA). The purpose of the MoU is to set out a broad framework within which the:
- nature and extent of the advice and support that ORR gives to RTA in connection with railway health and safety in Dubai;
- conditions under which that advice and support is given; and
- conditions under which ORR staff will provide advice and support when required to travel outside Great Britain,
- conditions under which RTA staff will receive training from ORR in Great Britain,
can be agreed.
ORR support to RTA
2. ORR will provide strategic advice and support to RTA on matters that may include, but are not limited to:
- development and implementation of health and safety regulation of railways in Dubai, including powers for inspection and enforcement;
- development of accident investigation functions for railways in Dubai;
- support to the RTA certification process for railways in Dubai, including support in assessment of the railway operator’s safety management systems;
- support to the RTA in the regulation of railways in Dubai;
- establishment of railway databases to capture railway performance data at Dubai level, followed by statistical, safety and performance analysis;
- issuance of annual reports on the status of railway services in Dubai covering safety and operational performance;
- registering of safety consultants/contractors qualified and competent to perform safety related activities;
- RTA’s representation at international level for certification, regulation and accident investigation related issues; and
- mentoring and training of RTA staff.
Conditions under which ORR will provide advice and support to RTA
3. ORR’s strategic advice to RTA will be based on ORR’s technical expertise and experience as a railway regulator in Great Britain. It will take the form of advising how, if an issue had arisen in Great Britain, ORR would have dealt with it. It will not constitute advice as to how RTA, or any other body, should conduct their regulatory or other activities. ORR will not be liable or responsible for any action taken by RTA or any other body based on ORR's advice.
4. RTA, recognising that ORR has limited capacity to take on additional work, will make requests for advice and support from ORR in writing, addressed to the Deputy Chief Inspector of Railways (Operations), setting out as far as is possible what the request will involve and any deadlines or time expectations (including, where travel is involved, the dates where RTA would expect ORR staff to travel).
- ORR will decide, in consultation with RTA, on the resources and staff to be assigned to fulfilling the request and, where appropriate, provide an estimate of the costs of fulfilling the request.
- RTA will reimburse ORR fully, as per HM Treasury guidelines, for all costs of assistance at an appropriate hourly or daily rate for each ORR staff member, to be agreed with ORR. ORR will provide indicative rates for ORR staff to RTA on request.
- ORR will endeavour to answer requests from RTA as quickly and efficiently as possible, but ORR's duties as health, safety and economic regulator for the railways in Great Britain will take precedence. ORR may not, therefore, always be able to provide the advice and support requested, nor in the requested timescales.
- ORR will only be able to provide advice to RTA in so far as to do so does not conflict with ORR's statutory duties, adherence to commercial or other binding confidentiality arrangements, or any other law or agreement by which ORR is constrained.
- Wherever possible, ORR will provide advice and support to RTA orally or in writing, using ORR staff working in Great Britain.
- RTA will not seek to actively recruit any ORR staff member.
Conditions for ORR staff supporting RTA outside Great Britain
5. Where ORR staff travel outside Great Britain to provide advice and support to RTA, ORR and RTA agree that:
- In respect of the matters upon which advice and support is to be provided, ORR staff shall be given direction from RTA.
- RTA will arrange and pay for all travel and accommodation for ORR staff working outside Great Britain to provide advice and support to RTA.
- ORR and RTA will agree in advance any arrangements for a reasonable daily allowance to be provided for ORR staff to buy food and other expenses, to be paid by RTA in advance or reimbursed after the fact depending on circumstances.
- RTA will obtain a suitable level of insurance for ORR staff working outside Great Britain, covering health, general travel risks and any risks associated with the work. • RTA will indemnify ORR against any claims made by ORR staff in connection with work for RTA.
• ORR staff will, when working in Dubai, comply with RTA’s relevant rules and regulations, as advised by RTA.
• RTA will obtain any visas or work permits necessary for ORR staff to work in Dubai or elsewhere.
• RTA will provide suitable on-site working facilities and resources for ORR staff working in Dubai.
• Where RTA has paid for or provided flights, accommodation or other hospitality to ORR staff, RTA will provide ORR with details of the costs of such expenses to ORR’s finance team, in line with the need for ORR to be financially transparent.
Conditions for RTA staff receiving training from ORR in Great Britain
6. Where RTA staff travel to Great Britain to receive training (as defined in consultation between ORR and RTA) from ORR, ORR and RTA agree that:
• RTA will arrange and pay for all travel and accommodation for RTA staff working in Great Britain. RTA will arrange and pay for the procurement of any health and safety equipment or special clothing required for RTA staff as part of their training.
• RTA will obtain a suitable level of insurance for RTA staff working in Great Britain, covering health, general travel risks and any risks associated with the work.
• RTA will indemnify ORR against any third party claims in connection with RTA staff working in Great Britain.
• RTA staff will, when working in Great Britain, comply with ORR’s policies and procedures, as advised by ORR.
• ORR will, so far as is reasonably practicable, ensure the health and safety of RTA staff working with or receiving training from ORR.
7. The arrangements set out in this MoU will be jointly reviewed by the RTA and ORR at two yearly intervals, together with the requests placed and the outcomes of the assistance provided.
8. This MoU shall come into immediate effect.
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3d4aae41e67e69a015f029b89d0a4578a40bcad6 | MEMORANDUM OF UNDERSTANDING BETWEEN THE OFFICE OF RAIL REGULATION AND THE LOCAL GOVERNMENT ASSOCIATION, THE WELSH LOCAL GOVERNMENT ASSOCIATION, THE CONVENTION OF SCOTTISH LOCAL AUTHORITIES, AND THE LOCAL AUTHORITIES CO-ORDINATION OF REGULATORY SERVICES
Signed by Bill Emery, Chief Executive on behalf of the Office of Rail Regulation (ORR)
Signed by Councillor Geoffrey Theobald, Chairman on behalf of the Local Authorities Co-ordination of Regulatory Services (LACORS)
Date:
## CONTENTS
| Section | Page | |------------------------------------------------------------------------|------| | Purpose | 3 | | Parties to this MOU | 3 | | Office of Rail Regulation | 3 | | Local Authority Associations | 4 | | Other bodies involved | 4 | | Health and Safety Executive | 4 | | Background | 4 | | Co-operation and co-ordination between ORR and LAs | 6 | | Promoting good communication and co-operation | 6 | | Standards | 7 | | Interaction between LAs and ORR | 7 | | Arrangements for providing mutual advice in support of policy development and enforcement activity | 8 | | Boundaries – working arrangements in areas of mutual interest | 9 | | Separately occupied offices, retail, catering or other consumer services at railway premises | 9 | | Transport system undertakings remote from the infrastructure | 10 | | Training activities | 11 | | Museums and heritage centres not parts of a heritage railway | 11 | | Railways at airports | 11 | | Catering services and toilets on trains | 12 | | HSWA section 6 requirements | 12 | | Resolving disagreements | 12 | | Review of MOU | 12 | | Annex 1 List of HMRI Enforcement Contacts by area of responsibility | 14 | | Annex 2 Summary of enforcement responsibilities | 16 | | Annex 3 General Managers in ORR to contact for access to specialist support | 17 | MEMORANDUM OF UNDERSTANDING BETWEEN THE OFFICE OF RAIL REGULATION AND THE LOCAL GOVERNMENT ASSOCIATION, THE WELSH LOCAL GOVERNMENT ASSOCIATION, THE CONVENTION OF SCOTTISH LOCAL AUTHORITIES AND LACORS TO CLARIFY WORKING RELATIONSHIPS BETWEEN THE PARTIES FOLLOWING THE TRANSFER OF RAILWAY REGULATION FROM THE HEALTH AND SAFETY EXECUTIVE TO THE OFFICE OF RAIL REGULATION
Purpose
1. This Memorandum of Understanding (MoU) is made between the Chief Executive of the Office of Rail Regulation (ORR) and, on behalf of local government, the Chief Executive or equivalent of the Local Government Association (LGA), the Welsh Local Government Association (WLGA), the Convention of Scottish Local Authorities (COSLA) and the Local Authorities Co-ordination of Regulatory Services (LACORS).
2. Its purpose is to ensure effective co-ordination between ORR and Local Authorities (LAs) in relation to general health and safety provisions on railways in Great Britain to the extent described in this MoU. The organisations undertake to use their best endeavours to co-operate effectively to enable and assist all parties to carry out their responsibilities and functions and to maintain effective working arrangements for that purpose. Such co-operation is aimed at improving the effectiveness of each of the parties to this MoU and avoiding difficulties that might arise through a lack of co-ordination.
3. The principles that underlie this MoU are the need to:
- secure consistent standards of protection for people at work, including those who work on the railway or in premises close to or adjoining premises used for the operation of the railway;
- secure consistent standards of protection for members of the public including those who travel on the railway and others to the extent that they may be affected by the operation of the railway;
- avoid, so far as is possible, duplication of inspection, investigation and enforcement;
- provide such mutual expertise and assistance as is necessary to achieve these principles.
Parties to this MoU
Office of Rail Regulation
4. The Office of Rail Regulation was established on 5 July 2004 under the Railway and Transport Safety Act 2003. It derives its health and safety responsibilities, functions and authority from section 2 and Schedule 3 of the Railways Act 2005 (RA 2005) and the Health and Safety (Enforcing Authority for Railways and Other Guided Transport Systems) Regulations 2006 (EARR 2006). ORR has therefore assumed the enforcement responsibilities formerly delivered within the Health and Safety Executive by Her Majesty’s Railway Inspectorate (which have transferred to ORR). ORR is an independent, non-ministerial government department staffed by civil servants. Its Board is appointed by the Secretary of State for Transport.
Local Authority Associations
5. Local authorities (LAs) across England, Scotland and Wales have a wide range of responsibilities for the inspection and regulation of premises and activities carried out within their geographical area. Under the Health and Safety (Enforcing Authority) Regulations 1998 (EA Regulations), LAs have responsibility for health and safety enforcement in several types of premises set out in the EA Regulations. At a national level, LA’s interests are represented by the three Associations which, together with ORR and LACORS (see below), are party to this MoU – the Local Government Association (LGA), Convention of Scottish Local Authorities (COSLA) and Welsh Local Government Association (WLGA).
6. LACORS is the local government central body that works to facilitate communication, sharing of good practice and co-ordination of enforcement issues between local authorities. LACORS is assisted in its work through local officer, heads of services and specialist liaison groups, LACORS’ national networks of policy advisors and experts. The LACORS Board of Directors is made up of some elected Members nominated by LGA, COSLA and WLGA.
Other bodies involved
Health and Safety Executive
7. Although the Health and Safety Executive (HSE) is not party to this MoU, the boundaries of enforcement responsibility between ORR and LAs are often defined by reference to HSE’s responsibility for enforcing health and safety requirements. HSE was established in 1975. Its Executive is a statutory body consisting of a chief executive and two others appointed by the Health and Safety Commission (HSC). HSE is the operating arm of the HSC whose main function is to secure the health, safety and welfare of people at work and to protect the public from dangers arising from work activities. The HSC/E statutory power and responsibilities are derived from the Health and Safety at Work (HSW) Act 1974 (as modified by RA 2005). There is a separate MoU between HSE and ORR. HSC/HSE are sponsored by the Department of Work and Pensions (DWP).
Background
08. From 1 April 2006, responsibility for rail-related health and safety was transferred from HSC and HSE to ORR. RA 2005 gives ORR responsibility for the application of Part I of the Health and Safety at Work etc Act 1974 (HSWA) in respect of “railway safety purposes”.
09. RA 2005 does not contain any provisions relating to the enforcement of health and safety for the purposes of railway safety. These are contained in the Health and Safety (Enforcing Authority for Railways and Other Guided Transport Systems) Regulations 2006 (EARR 2006) which came into force on 1 April 2006, thus completing the main basis for the transfer of responsibility for rail-related health and safety to ORR.
10. EARR 2006 makes ORR responsible (subject to certain exceptions) for the enforcement of relevant statutory provisions made under HSWA to the extent that they relate to the following activities:
- the operation of a railway(^1);
- the operation of a tramway; and
- the operation of other systems of guided transport(^2).
To this extent, ORR has the same powers of enforcement that LAs and HSE have under HSWA to issue improvement and prohibition notices and institute legal proceedings.
11. The EA Regulations therefore need to be read in the light of this change and the specific amendments EARR 2006 makes to those Regulations. EARR 2006 also gives responsibility to ORR for the enforcement of section 6 of HSWA (general duties of manufacturers etc as regards articles and substances for use at work), but only in so far as these duties are carried out exclusively or primarily in the construction or operation of the above transport systems.
12. The operation of a railway, tramway or other system of guided transport includes the:
- use of the infrastructure and other fixed assets of the transport system which are used in its operation and comprise, or are located within, operational premises;
- use of centres used for signalling or the operation of communication systems or systems used for monitoring the operation of the transport system (whether or not these are operated from operational premises) together with offices in operational premises; and
- training of railway staff within operational premises or other premises referred to above,
- but does not include office activities relating to the railway which are not included in operational premises.
13. As well as the “permanent way” itself (eg the railway line and any land, infrastructure or property associated with it), “operational premises” include:
(^1) Railways are defined as those where the track is either of a gauge of at least 350mm or crosses a road (whether or not at the same level). HSE is therefore the EA for miniature railways which do not cross a road.
(^2) A system of guided transport does not include guided buses as defined by EARR 2006. HSE is the EA for guided buses. • stations; and • any land adjacent to or adjoining the permanent way which is used, occupied or held for the purposes of the transport system.
However, such premises do not include parts which are occupied for the carrying on of any trade, business or other than for the purposes of the transport system. Operational premises do not therefore include shops, offices occupied by a separate business, or premises used to provide catering services or temporary residential accommodation.
Co-operation and co-ordination between ORR and LAs - Introduction
14. EARR 2006 sets out the basis for deciding where the enforcing authority (EA) should be ORR. Read in conjunction with the EA Regulations, it also set out where LAs have the responsibility. However, unlike the EA Regulations, there is no provision in EARR 2006 allowing for the transfer of responsibility for enforcement between ORR and LAs. As a consequence, it is particularly important for ORR and the appropriate LA to co-operate and co-ordinate any action needed on matters where their enforcement responsibilities interface. Wherever possible there should be a single EA for rail industry duty holders and stakeholders (a summary of enforcement responsibilities is at Annex 2)
15. The following paragraphs of this MOU therefore set out in more detail the basis on which both ORR and individual LAs should work together - by:
• promoting good communication and co-operation (paragraphs 16-18); • working to standards (paragraphs 19); • the way in which LAs interact with ORR and vice-versa (paragraphs 20-24); • the arrangements for providing mutual advice (paragraphs 25-27); • taking account of the need for working arrangements where there are areas of particular mutual interest (paragraphs 28-39); and • resolving disagreements (paragraphs 40-41)
Promoting good communication and co-operation
16. The ORR and relevant LAs should establish proportionate and effective liaison arrangements to ensure:
• Co-ordination and co-operation between the parties involved • A better mutual understanding of roles and responsibilities • Agreed working arrangements • Resolution of any local problems
17. Information about the location of ORR offices and contact details is attached in Annex 1 and this also shows the counties within those ORR regions. This will be kept up-to-date through ORR’s website (www.rail-reg.gov.uk).
18. Each party will work to:
- Avoid any duplication of activity and facilitate co-operation in all aspects of policy development and implementation; and
- Promote flexible and practical working level relationships, procedures and clear lines of communication, thus providing mutual support for all parties concerned to carry out their respective responsibilities; and
- Keep each other informed about common issues.
Standards
19. Use of enforcement protocols will be adhered to and communication between parties where necessary will be timely and co-operative. Local authorities work to the HSC enforcement policy statement(^3), which is backed up by performance standards such as those contained in the Enforcement Management Model(^4). The ORR has a health and safety enforcement policy statement which can be found on the ORR website: www.rail-reg.gov.uk/upload/pdf/281.pdf. Both set out the expectations and performance standards required of enforcing authorities.
Interaction between LAs and ORR
20. Where either LA inspectors or ORR inspectors observe matters of evident concern in the areas of a site being visited for which they are not the EA, these should be brought to the attention of the other EA in the following way:
- Where a risk of serious personal injury appears to be involved, notify the other authority by telephone to enable them to consider issuing a prohibition notice. The other authority should inform the first of any action subsequently taken;
- In other cases, notify the other authority in writing.
Only the relevant EA, as allocated by EARR 2006, may take enforcement action. Each will however provide the other organisation with any information and expertise to support any action subsequently taken such as the issuing of a notice.
21. If it transpires that such matters are within the responsibility of an enforcing authority other than either ORR or the LA (such as HSE), the receiving authority will forward the notification on to that authority and advise the original inspector accordingly. The initiative for any further action will then rest with the appropriate authority.
(^3) http://www.hse.gov.uk/pubns/hsc15.pdf (^4) http://www.hse.gov.uk/enforce/emm.pdf 22. There may be certain cases where several enforcing authorities could be responsible for different aspects of one premise (e.g., museums or heritage centres – see paragraphs 34-36). Local arrangements for the inspection of such premises will need to be agreed or amended to take account of ORR’s role in enforcing rail-related health and safety: whether joint inspections should take place, or separate inspections should take place but information is passed on. Sharing of information must be in accordance with section 28 HSWA and the Data Protection Act, and for local authorities in accordance with Part 9 of the Enterprise Act 2002. However, EARR 2006 sets out clearly where ORR is the EA and does not allow for the transfer of responsibility for premises between ORR and LAs. Only the EA with responsibility for a particular issue will therefore be able to take enforcement action on that issue.
23. Specialist support will be available to LAs from ORR on railway specific matters. To gain access to ORR support, LA inspectors should contact the relevant General Manager in ORR (details in Annex 3). These will be updated from time to time through ORR’s website. Details of the level of resource supplied for each job will be confirmed on conclusion of the job and recorded by the ORR focal contact point.
24. Parliamentary and public enquiries relating to specific incidents will be handled by the organisation that takes the lead in the investigation or enforcement action. If the enquiry is of a general nature, the recipient organisation must decide on the main thrust of the inquiry and pass the correspondence to the organisation that would be responsible for taking any enforcement action. If there is any doubt it should be copied to all parties and a reply agreed.
Arrangements for providing mutual advice in support of policy development and enforcement activity
25. The arrangements for providing such support will be based on the following principles:
- the importance of close working relationships and mutual support in ensuring consistent application and enforcement of health and safety legislation should be recognised;
- A recognition of the need for flexibility in order to respond to demands from reactive work; and
- The need to review the adequacy of arrangements - through discussion at a national level at the HELA meeting.
26. The exchange of advice between ORR and local authorities (and where necessary HSE) will continue to occur in their respective areas as part of their normal working environment. But LAs may require more substantive assistance from ORR from time to time in particular where specialist expertise in support of enforcement activity and or policy developments is needed (see para 23).
27. ORR should consult local authorities when undertaking policy development - for example procedures for evacuation of stations or access routes.
**Boundaries - working arrangements in areas of mutual interest**
28. There are a number of particular areas of mutual interest where working arrangements for effective co-ordination of enforcement need to be established between ORR and LAs. These are:
- separately occupied offices, retail, catering or other consumer services at railway premises;
- railway undertakings remote from the infrastructure;
- training activities;
- certain museums and heritage centres which are not part of a heritage railway;
- railways at airports;
- catering services and toilets on trains;
- HSWA section 6 requirements in respect of articles and substances for use exclusively or primarily in the construction or operation of transport systems to which EARR2006 applies,
and are covered in more detail below.
**Separately occupied offices, retail, catering or other consumer services at railway premises**
29. ORR is the EA for health and safety matters arising in premises used for the purposes of operating the railway or other guided transport system. This includes the common parts of stations, station car parks, railway offices, left luggage and lost property facilities. But these do not include those parts of stations occupied by a separate business engaged in office, retail, catering or other consumer services. For these latter premises, LAs would enforce (the only two possible exceptions to this would be dry cleaning (except in Scotland) and radio or TV repair shops at stations where HSE is the EA by virtue of EA Regulations). Where risks to the safe operation of the railway or other guided transport system arise from the need to convey goods to LA enforced premises across the common parts of stations to LA enforced premises, ORR would be the EA.
30. Issues may arise where either these two sets of premises interface or where matters are referred to one enforcing authority that needs the co-operation of the other. In cases such as the examples below, both ORR and LA inspectors will need to liaise to ensure appropriate action is taken:
- Cases of slips, trips and falls occurring in one set of premises, but caused by mismanagement of risks in the other. For example, a slip on a station caused as a result of a spill from a nearby café or shop not being mopped up;
- Cases where risks to health and safety arise from the delivery of food and other refreshments to trains across the common parts of stations. Where such deliveries are made to trains, LAs are the EA for the premises of the catering firm supplying the train, while any risk to the health and safety of workers or the public arising from the need to convey the delivery to the train is for ORR to enforce. But ORR and the appropriate LA would need to liaise if the risk in conveying the delivery arose as a result of bad practice at the catering firm’s premises – or vice-versa;
- Cases where risks to health and safety arise from the delivery of goods to retail outlets across the common parts of stations. LAs are the EA for the retail outlet and ORR the EA for any risk to the safe operation of the railway arising from the delivery of the goods across the common parts of the station. As above, there would need to be liaison where risks arose in one set of premises as a result of bad practice in the other;
- Cases where enforcing authorities come across matters of evident concern should be passed onto the appropriate enforcing authority eg if a local authority inspector comes across fencing preventing access that has been damaged they should notify ORR.
- Complaints about the cleanliness of public toilets in stations. Where these complaints are of an environmental health character, it would be for the relevant LA to take the lead. But where they raise issues which have implications for station safety ORR would be the EA and both ORR and the appropriate LA would need to liaise to establish if there were risks to health and safety involved;
- Complaints about the level of noise and diesel fume at stations/depots. It is for ORR to take the lead where these arise from the operation of the railway or other guided transport system and also involve a possible breach of the Noise at Work Regulations 1989 or the Control of Substances Hazardous to Health Regulations 2002. Potential breaches of these Regulations arising from separate businesses in the station would be for LAs to enforce, as would complaints of nuisance caused by noise or fume. Work is continuing between ORR and LACORS to achieve further clarification on this issue. However, local authorities retain their duties under the Environmental Protection Act 1990 to deal with noise emitted from premises which amounts to a statutory nuisance.
Transport system undertakings remote from the infrastructure
31. Not all activity relating to the operation of the transport system takes place on or adjacent to the system. ORR is the EA for the activities of signalling, electrical and operational control operated from within offices or from other premises whether attached to or remote from the transport system.
32. LAs are the EA for any office or catering activities not carried out on operational premises. However, if railway offices share the same building as a signal control centre (or similar) remote from the transport system, then ORR would be the EA for the railway office components of the building as well as the control centre. LAs would remain responsible for enforcing non-health and safety issues such as food safety.
Training activities
33. ORR is the EA for any training activities in connection with the operation of the transport system on or near the system or in other operational premises such as a signal cabin or control centre. An example would be personal track safety or possession management training. ORR will also be the EA in the case of training being carried out at station premises such as a driver training school. However, where training is carried out on premises, (which are not operational and are not educational establishments) such as in a classroom environment in offices not in railway premises it falls to LAs to enforce.
Museums and heritage centres not parts of a heritage railway
34. There are a number of railways and tramways which are operated at museums open to the public but which are not part of a heritage railway. Where such systems are operated at any museum or heritage attraction, ORR is the EA for the railway operation (see paragraph 10 for the definition of a railway). This will include museums where running vehicles are exhibited and which may be moved on a railway system out or around the museum site. Any surrounding or associated activities would also fall to ORR in so far as they form a part of the operation of the railway.
35. When a railway at a museum is operated on a seasonal basis, ORR is the EA even when the railway is dormant. However, where a museum houses static exhibits which are not operated, ORR is not the EA.
36. The above applies whether or not the museum or centre is run by the LA. Where the LA runs the museum, HSE is the EA for the rest of the premises other than the operation of the railway. In cases where the LA does not run the museum or heritage centre, ORR remains the EA for the railway or tramway but the LA will be the EA for the rest of the premises (the museum or heritage centre is considered to be an entertainment, cultural or recreational activity).
Railways at airports
37. ORR is the EA for any railway at an airport while LAs are the EA for the common parts within terminals to which any member of the public can be admitted and airport parking. HSE remains the EA for the common parts of airports which are either not within a building or where passengers only are admitted (but not other members of the public). Catering services and toilets on trains
38. Any issues that arise which have implications for the safe operation of the railway will be for ORR to deal with. Other food safety or nuisance issues would be for LAs to enforce and, where such issues arise, there might be a need for the LAs through whose area a train runs, to co-ordinate action between themselves.
HSWA section 6 requirements
39. Regulation 3(3) of EARR 2006 makes ORR the EA for section 6 of HSWA (see also paragraph 11 above) in respect of articles and substances for use exclusively or primarily in the construction or operation of transport systems to which EARR2006 applies. This will necessitate ORR inspectors dealing with manufacturers and suppliers including visiting their premises where appropriate. In so doing, they will not be enforcing the requirements of other general health and safety legislation at these premises: such requirements will be enforced by either HSE or LAs as appropriate.
Resolving disagreements
40. Any disagreements will normally be resolved amicably at working level. If this is not possible, local managers will seek to settle the issue and ensure a mutually satisfactory resolution. Senior management of both parties will be involved as necessary.
41. LACORS will be able to discuss national issues on behalf of local authorities across England, Scotland and Wales with ORR and HSE.
Review of MoU
42. The working of the agreement and the need for changes to the text of the memorandum is kept under review by the organisations. Any amendments proposed would need to be agreed by all parties.
43. ORR and LACORS will provide a contact for any queries relating to this MOU. The contact should be aware of major issues arising out of the functioning of the agreement and should participate in the preparation of briefing for reviews of the MOU.
44. In practice most contact between LAs and ORR will arise in the context of day to day working. It is the responsibility of individuals in all organisations to identify topics needing liaison as they arise and ensure they are dealt with effectively.
45. A yearly item on the HELA (Health and Safety Executive/Local Authority Local Liaison Committee) agenda will allow for an assessment of how well the arrangements are working. The Chief Inspector of Railways will attend the HELA meeting to discuss any national issues. Throughout the year issues can be raised locally and dealt with at a local level or can be raised through LACORS who will work with ORR to resolve any national policy or enforcement issues.
## Annex 1
### List of HMRI Enforcement Contacts in ORR by Area of Responsibility
| HMRI Field Team | Main Duty holder responsibility | Approximate geographical responsibility\* | Contact | |-----------------|---------------------------------|------------------------------------------|---------| | London Metro | London Underground including Metronet and Tube lines, Docklands Light Railway, Croydon Tramlink | London (Non-Network Rail infrastructure) | 020 7 282 2000 | | Sussex and Wessex | Network Rail Routes: Wessex and Sussex, London Mainline Stations: Victoria and Waterloo | Sussex, Surrey, Dorset, Hampshire, Isle of Wight | 01256 404 055 | | Kent and Anglia | Network Rail Routes: Kent, Anglia, London Mainline Stations: Liverpool St, Fenchurch St, London Bridge, Cannon St, Blackfriars and Charing Cross, Channel Tunnel including Eurostar and Channel Tunnel Rail Link | Essex, Suffolk, Norfolk, Hertfordshire (East), Cambridgeshire (East), Kent | 020 7 282 3878, 01245 706 262 | | Western | Network Rail Route: Western, London Mainline Station: Paddington | Wales, Berkshire, South Oxfordshire, Wiltshire, Gloucestershire, Worcestershire, Shropshire, Somerset, Devon, Cornwall | 0292 026 3021, 0117 988 6048 | | London North West | Network Rail Route: London North Western, London Mainline Station: Euston and Marylebone | Buckinghamshire, Northants, Staffordshire, North Oxfordshire, Warwickshire, West Midlands, Cheshire | 0161 952 8290 | | HMRI Field Team | Main Duty holder responsibility | Approximate geographical responsibility\* | Contact | |-----------------|---------------------------------|------------------------------------------|---------| | Midland Metro | | Lancashire Cumbria North Wales Merseyside | 0161 952 8290 | | London North West | Serco Metrolink (Manchester Trams) | Greater Manchester | 0161 952 8387 | | London North Eastern | Network Rail Route: London North Eastern | Nottinghamshire Hertfordshire (West) Cambridgeshire (West) Bedfordshire Leicestershire Derbyshire Lincolnshire Yorkshire Tyne and Wear Cleveland Northumberland | 0115 971 2816 0113 283 4299 0191 202 6268 | | | London Mainline Stations: Kings Cross and St Pancras | Sheffield Leeds | | | | Stagecoach Supertram (Sheffield) West Yorkshire PTE | Sheffield Leeds | | | | Nexus (Tyne and Wear Metro) | Tyne and Wear | | | Scotland | Network Rail Route: Scotland Strathclyde PTE (Glasgow Underground) | Scotland | 0141 275 3071 0141 275 3088 |
- The organisation of HMRI enforcement activities reflects the way in which Network Rail organises its responsibilities as railway infrastructure provider. This cuts across the boundaries of county councils, so this table does not specify exactly the geographical extent of the responsibilities of those contacts listed above – it is only an approximate indication.
## Annex 2
### Summary of enforcement responsibilities in relation to health and safety provisions on railways
| Authority | Responsibility | |-----------|----------------| | ORR | Operation of mainline rail network including safety of trains, track, signalling and communication systems, maintenance depots | | | Operation of metro and light rail systems including safety of trains, track or other guidance systems, signalling and communication systems | | | Operation of tramways including safety of trams, track, signalling and communication systems | | | Operation of heritage railways | | | Operation of miniature railways which cross a carriageway (whether or not at the same level) | | | Stations including common parts, station car parks, railway offices, left luggage or lost property facilities but not those parts of stations occupied by a separate business engaged in office, retail, catering or other service | | | Training activities in connection with operation of transport system at operational premises | | | Operating railway at a museum or heritage centre | | | Railways at airports | | | Railways at intermodal depots, industrial sites, docks and railways at MoD sites insofar as it affects the importation of risk onto the mainline railway | | LAs | Cableways (other than those enforced by HSE) | | | Most separate businesses in stations see exceptions below | | | Offices or catering facilities not carried out on operational premises | | | Training taking place away from operational premises and not in connection with operation of transport system | | | Aspects of a museum or heritage centre other than the operation of any railway at the centre | | HSE | Cableways (other than those enforced by LAs) | | | Some separate businesses in stations (eg dry cleaners and TV repair) | | | Aspects of the operation of railways at intermodal depots, industrial sites, docks and MoD sites insofar as this does not affect the importation of risk onto the mainline railway | | | Miniature railways which do not cross a carriageway |
## Annex 3
**General Managers in ORR to contact for access to specialist support**
| Specialist area | General Manager contact | |------------------------------------------------------|--------------------------------------------------------------| | Command, control signalling | John Gillespie\
Tel : 01782 602 2313 | | Railway Operations | John Gillespie | | Level Crossings | John Gillespie | | Rail Vehicles | Steve Bliss\
Tel : 0191 202 6218 | | Infrastructure and Stations\
Electrification and Major Railway Projects | Allan Spence\
Tel : 0121 607 6263 or 0207 282 2086 | | Light Rapid Transport\
Tramways\
Metros\
Heritage Railways | Allan Spence | | Safety Management Systems\
Risk and Human Factors\
Channel Tunnel | Myles Sibley\
01256 404059 |
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030db0afc8c04964187f93cb6cfdea50f973087b | Foreword Minister for the Cabinet Office
This report, which includes the Major Project Authority (MPA)’s candid red/amber/green ratings, gives unprecedented insight into the government’s portfolio of 199 transformative major projects. Everyone in the country will be touched in some way by these projects, whose lifetime costs stretch to over £400 billion.
Yet despite their crucial importance and eye-watering budgets, successive governments failed to deliver major projects effectively. A lack of project management skills across the Civil Service; too fast a turnover of project leaders; inadequate assurance processes and institutional knowledge: all these led to the squandering of enormous sums of money from hard-working taxpayers.
We knew this had to change, so after the last General Election the Prime Minister established the MPA to provide central assurance over projects and to support colleagues across departments to build skills and improve delivery.
Since then we have made significant progress. This year, half of the projects with the most significant challenges improved, while our work to develop our people has meant we are relying less on costly consultants.
Delivering major projects will never be easy – they are some of the biggest and most complex things the Government will do. But we must not pretend problems don’t exist. Instead, we must identify and address them early on before they become an issue. By being open and realistic about the challenges we face, we can find solutions. That’s nothing less than what the public should expect from us, and what we, through this Annual Report, are committed to delivering.
Rt Hon Francis Maude MP Minister for the Cabinet Office, Paymaster General We are forecast to invest over £400 billion of taxpayers’ money in our major projects, delivering benefits that will be transformational for our economy and for society. We always have a responsibility to ensure that public money is spent wisely and never more so than in the current challenging economic circumstances. The Treasury remains committed to the important work that this government is undertaking to improve the successful delivery of our most important projects.
We know that a key to the success of major projects is to ensure that the right work is done to set them up properly by the time they receive approval to proceed from the Treasury. We will work in partnership with colleagues across government to improve further the way in which we do this. In making commitments of the scale of our major projects, it is vital that we are as clear as we can be on what we are trying to achieve, that we have considered all of the right options, and that we have identified the resources we need to deliver them successfully.
Rt Hon Danny Alexander MP Chief Secretary to the Treasury Welcome to the MPA’s second annual report. The aim of this report is to give you an overview of the most important projects being delivered by the government, and to set out the steps that we will take to continue to improve the way they are delivered.
A central part of improving our performance is being open about the challenges associated with delivering a major project, and the MPA Annual Report is an important move in that direction. With 199 projects in the portfolio, this report can only be an overview – you will find a more detailed analysis of the projects, including financial and schedule data, in the departments’ own individual reports, published alongside this report on gov.uk.
We have an impressive range of projects underway that will change people’s lives for years to come, from new railways, better schools and the latest in medical treatment, to major advances in defence systems, and significant IT development projects that will set up our public services for the 21st century. The benefits these projects will bring to the country are enormous, and the overall investment is a real commitment to change. As this report details, we have made significant progress in the last year.
Projects of this scale and complexity are always going to be challenging – even more so in the public sector where there are many stakeholders involved, along with high levels of media scrutiny. There are four key areas on which we will focus our efforts to meet the challenges.
First, getting major projects right requires outstanding leadership – and in my first few months in the job, it has been encouraging to meet some excellent project leaders, and to see how the Major Projects Leadership Academy is helping them develop their skills still further. We will continue this important work to build a world-class civil service. Second, leaders need to be empowered to get the job done, with clear accountability and responsibility for delivery. We are progressively clarifying the accountabilities and delegated authorities to enable focused and accountable leadership.
Third, successful projects require detailed and substantial planning and analysis of the potential options before implementation begins. Such early clarification of objectives and implementation plans, the alignment of interests, and detailed understanding of the required resources, leads to the successful set-up of a project. While we currently devote significant efforts to this, there remain substantial opportunities for improvement.
Lastly, getting major projects right requires a culture of openness and realism which gives people the confidence to identify challenges at any stage of a project so that solutions can be developed. Transparent publication of the data on our major projects through the MPA Annual Report and associated departmental reports, now in their second year, is an important example of our commitment to this culture of realism.
To date, the MPA’s role in reviewing, challenging, and advising projects has been important in enabling the kind of openness we need to be confident of success. Going forward, the MPA will offer project teams a greater level of support, offering valuable objective advice, asking the right questions, finding the right people to help – and, through the Major Projects Leadership Academy, providing training to enable leaders to develop the skills they need to deliver the challenging results expected of them.
We are in the early days of the government’s drive to improve the delivery of major projects, and success will take time. In setting up the MPA in 2011, the Government clearly signalled the importance of delivery alongside policy development. We are already making progress, and I am optimistic that we can continue and accelerate that journey. With a portfolio of this magnitude, improvements in efficiency mean we will complete projects at less cost to the taxpayer, as well as ensuring that we secure the benefits to public services and infrastructure that these projects promise.
“Success is fundamentally about people. In my early days in government I have been encouraged by the talent and commitment of many of the people that I have met. We are making progress towards our aspiration to build a world-class civil service, capable of delivering the ambitious projects that this country needs. I look forward to continuing this important work.”
John Manzoni CEO, Major Projects Authority The portfolio: transforming Britain through major projects
Major projects delivered by the government are amongst the most ambitious and important in the country: they will transform public services and deliver infrastructure that will last for generations. We have committed £488bn to 199 major projects which are due to complete at various times over the next 20 years.¹
The benefits these projects will bring go well beyond the 2.5% of annual government expenditure they represent: major infrastructure, for example Crossrail or Thameslink; connecting the nation through broadband; building hospitals and schools; transforming key parts of the UK economy, such as reforming the energy market; ensuring the future defence of the country and our ability to influence events overseas through the equipment of our armed forces; or the development of national icons such as Tate Modern or the British Museum.
Over the course of the last year, 39 projects have left the Government Major Projects Portfolio (GMPP), and many of these have been brought to a successful conclusion. In other cases, projects left the GMPP where they have transitioned to business as usual, or been redefined. A total of 75 further projects are due to complete by April 2015. Examples of the projects that completed successfully this year and are already delivering benefits across the country include:
- The Home Office’s New Passport Programme, which has utilised new manufacturing technology to produce the world’s most secure identity document.
- The Department of Environment, Food and Rural Affairs’ project to establish a charitable organisation, the Canal & River Trust, to care for 2,000 miles of the country’s canal and river network.
- Ministry of Justice projects to increase the efficiency of the operation and management of the prison and prison escort services.
- A number of major Department for Transport projects, such as the Greater Anglia Rail refranchising, that will provide better rail services for most passengers in East Anglia.
Significant progress is being made in even the longest-term projects. In moving from policy to delivery, major projects must pass through a series of key government approval points designed to ensure that they are set up successfully. Twenty-two projects received final business case approval from the Treasury during the year, allowing them to make the substantial financial commitments that will lead to implementation. A further 21 projects received outline business case approval, allowing them to proceed to more detailed planning.
¹ All figures in the report are for data as at September 2013, unless otherwise stated. The government’s major projects in numbers
The establishment of the GMPP in 2011 allowed us to understand the scope and scale of our most important projects for the first time. The GMPP is composed of the largest, most impactful, and highest risk projects being undertaken by the government. Projects to be included in the GMPP are agreed between the MPA, HM Treasury and the relevant government departments, and they report data to the MPA every quarter.
| Projects | £488bn whole life cost | |----------|------------------------| | 199 | |
| Budget | £19bn 2013-14 budget | |----------|----------------------| | 28% | scheduled to complete by September 2014 |
| Completion Schedule | |---------------------| | 28% | | 76% | | 24% |
Largest investments:
Military equipment, energy generation and efficiency, and railway infrastructure represent over 65% of the whole life costs of the portfolio.
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2 This includes £60bn of non-government expenditure. The number of major projects across different departments in September 2012 and September 2013 is shown in figure 1. The total number of projects in the GMPP increased from 191 to 199 in the year to September 2013. Over the course of the year, 39 projects exited the GMPP due to completion, being redesigned into other projects or, in a few cases, being halted. Forty-seven new projects were incorporated within the GMPP reflecting the progress that we are making in turning the government’s policies into projects to deliver change.
Examples of projects that have started this year include a series of initiatives in the Department of Health, including the Seasonal Flu Extension to Children Programme that will mean that all children at primary school will receive the flu vaccine, and the Health Visitors Programme to recruit 4,200 extra health visitors by April 2015 to provide care for people at home. The Ministry of Justice’s Transforming Rehabilitation and Transforming Youth Custody Programmes will reduce the level of reoffending, by bringing a broader range of partners in to provide rehabilitation services, expanding the coverage of those services, and by significantly improving the education provided to young offenders.
Figure 2 shows the distribution of the whole life costs of projects by department. This highlights the significance by cost to three departments in particular: the Department of Energy and Climate Change; the Department for Transport; and the Ministry of Defence. This reflects the high capital costs of energy and transport infrastructure and military equipment. The impact and significance of projects is not, however, illustrated by cost alone. Transformation projects can have comparatively low direct costs, but the reforms to the delivery of major public services that they introduce can influence the way in which very significant sums of ongoing government or private money is spent.
1 See page 21 for key of department names Rather than physical infrastructure, the majority of projects in our portfolio are major transformation programmes to modernise the delivery of public services.
The popular image of major projects is one of major infrastructure like railways or roads, or military equipment. However, as illustrated in figure 3, there is far more to the GMPP than these two categories. In fact the majority of our projects consist of programmes to deliver radical transformation of our public services, improving the quality of services while saving taxpayers hundreds of millions of pounds. Improving services requires us to undertake a major modernisation of the way in which government is structured, the means by which services are delivered and accessed, and our relationships with the companies and organisations with which we work to deliver them. As part of this, we are creating world-class digital public services, increasing the accessibility and efficiency of these services. The number of major transformation and IT projects demonstrates the scale of this ambition.
Examples of projects of this type include the joint Department of Health, Ministry of Justice, and Home Office Liaison and Diversion Services Programme, which will improve the health of and reduce re-offending rates in adults and children in the criminal justice system who have complex physical and mental health needs, such as psychological illness or substance misuse; and the Beyond 2011 Census Programme that will consider innovative alternatives for collecting information for the 2021 census.
The projects in the GMPP vary significantly in length and cost, as illustrated in figures 4 and 5. Thirty-five of our projects are not due to complete until after 2020, and some, such as the Successor Nuclear Deterrent submarines, are scheduled to run well into the 2030s. Across government, the range of projects that we are delivering therefore covers a range of scale, length and type, bringing with it a similar range of challenges that must be overcome. Developing state-of-the-art cancer treatment for children
The £250m Proton Beam Therapy project is an innovative new form of radiotherapy that is transforming the prognosis of many hard-to-reach cancers. Through two major new facilities at University College Hospital, London and Christie Hospital, in Manchester, this advanced technology that accelerates hydrogen atoms to two thirds the speed of light, will change the lives of around 1,500 people – particularly children – each year.
Schools fit for the next generation
The Department for Education set up the Priority School Building Programme in 2011 to rebuild or repair over 250 of the country’s most run-down schools. To ensure value for money, the schools were grouped to make the projects more commercially attractive and to drive stronger competition from bidders for the contracts. All schools within the programme will have been refurbished by the end of 2017. Tackling the threat from serious and organised crime
The establishment of the National Crime Agency (NCA) will enable the UK to tackle more effectively serious and organised crime such as money laundering, cyber-crime or human trafficking. This project has required a major transformation, bringing together staff from a variety of bodies, including the National Policing Improvement Agency, the National Fraud Authority, the Metropolitan Police Service and the UK Border Agency.
Protecting Britain’s interests abroad in the 21st century
Type 45 destroyers will provide the backbone of the UK’s naval air defences for the next 30 years and beyond, as well as carrying out a wide range of operations, including anti-piracy and anti-smuggling activities, disaster relief work and surveillance operations. The first Type 45, HMS Daring, arrived in Portsmouth in January 2009. HMS Duncan, the final of the six Type 45s, entered service in January 2014. Major projects are complex and ambitious. Getting them right is a huge challenge, and even the best-run projects rarely go smoothly from start to finish. However, of the projects we reported as facing the most significant challenges a year ago, over half have improved significantly, thanks to determined efforts to resolve issues.
Given the number, complexity and scale of the challenges facing major projects, it is essential that we are realistic about what we can achieve, which means developing a culture of realism about these challenges. This kind of approach allows teams to find solutions before problems spiral out of control. Among the challenges are:
- **Technological complexity.** Many of our major projects incorporate some of the most innovative and technologically advanced engineering in the world. For example, the Department of Energy and Climate Change’s Carbon Capture and Storage Project will support the development of new technologies to lead the fight against climate change, while the Astute and Successor class nuclear submarines being designed and built by the Ministry of Defence are amongst the most technologically advanced machines that have ever been created.
- **New information technology.** Our digital transformation agenda aims to provide world-class digital services; typically, this involves redesigning public services involving millions of people and hundreds of millions of transactions.
- **Scale.** There are more than 10 projects in the portfolio with costs of over £10bn, while many will have impacts across the whole of the UK, for example national vaccination projects, the electoral register, or national tax and benefit reform.
- **Multiple delivery partners.** Most of our major projects have many delivery partners spanning both the public and private sectors, while a high proportion involve complex private sector procurement exercises. In the context of health, for example, developing new IT programmes requires hundreds of semi-independent organisations and trusts across public health and social care to work together to share information.
- **New organisational structures.** Because they are not “business as usual”, managing and delivering major projects usually requires the development of new temporary structures, either within government or in collaboration with partners. On occasion these may be entirely new organisations such as the Olympic Delivery Authority.
High Speed Rail (HS2) is a high-profile example of a project that displays many of these challenges. It is not unusual for projects of this scale to have a lower delivery confidence assessment early in their project life, highlighting the substantial issues that inevitably remain to be resolved. Significant progress has been made in the last year on HS2, for example in depositing the High Speed Rail Bill in Parliament and securing successful second reading in the Commons. The amber/red delivery confidence assessment on HS2, like other projects with a similar assessment, indicates that the focused attention that is being applied to addressing the remaining issues must continue.
Realism about the challenges of major projects: the MPA’s assurance review
The MPA’s assurance review process is an important component of a culture of identifying and addressing the challenges of delivering major projects. It consists of internal – but independent – reviews at key decision points in a project’s life-cycle, identifying what is going well, and providing recommendations to address issues. Since the MPA was established, we have initiated well over 500 assurance reviews.
As part of our commitment to creating a culture of realism, the MPA maintains a ‘Delivery Confidence Assessment’ (DCA) of all projects in the GMPP, enabling attention to be focused across government where it is most required. The DCA gives an overall summary of the state of a project, and is reported as a traffic light system ranging from green for the projects judged with the lowest risks to success, to red for those projects facing the most serious challenges. The DCA gives an overall summary of the state of a project.
The ambition and level of risk associated with many of our major projects means that, particularly at their earliest stages, projects are likely to be rated no higher than amber, and frequently amber/red or occasionally red. It is important to note that a red or amber/red rating does not mean a project will be or should be cancelled, and the delivery confidence of many projects rated red and amber/red increases significantly as solutions are identified to challenges. Though some projects will likely pass through stages of red or amber/red on the path to successful delivery, there will also be instances where a red rating signifies that a project is unachievable within reasonable timescales and to a reasonable budget without urgent remedial action. Red and red/amber ratings signal to Ministers and officials that action is required and suitable mitigating measures put in place.
The MPA formally updates DCA ratings each quarter, and the ratings (as of the previous September) are published each year in the MPA Annual Report as part of our commitment to increased transparency. The overall quarterly DCA is informed by a range of evidence, including the ratings from any recent assurance reviews. The MPA’s assurance reviews are not published, in order to allow these reviews to encourage a culture of candid identification of the challenges and issues with projects.
Where we are now: delivery confidence of major projects in September 2013
In line with our commitment to transparency, last year’s Annual Report marked the first publication of the MPA’s DCAs of projects in the GMPP, and this year, with the publication of comparative figures, we can begin to track progress. The overall DCA across the portfolio at September 2012 and September 2013 is shown in figure 6 overleaf. The figures show a spread of confidence in delivery, with the highest proportions of projects rated amber and amber/green in both years.
“Government and industry share the challenge that large scale projects are difficult to manage, and the evidence shows that both suffer issues with late delivery and going over budget. The only significant difference between the public and private sectors is around transparency, where major projects undertaken by government face more regular questions about whether the large budgets involved are well spent.”
Dr Paul Chapman, Oxford Said Business School
1 The DCA classification allows for five categories: green; amber/green; amber; amber/red; and red. The definition of each of these classifications is included in the annex. Between September 2012 and September 2013 there was an increase in the percentage of projects rated amber/red and a decrease in the percentage rated green. The main reason for this is that 47 new projects joined the GMPP this year. Since they are projects in the early stages of planning, we are naturally at this stage less confident in their delivery than in those projects that left the portfolio during the year. Projects in the earlier stages of planning receive, on average, lower DCAs because they are still working through the process of identifying solutions to the challenges that they inevitably face. This is illustrated in figure 7, which shows the higher DCAs of those projects that exited the portfolio this year compared with those that joined.
By contrast, the overall DCA of the projects that have been in the portfolio in both years has remained largely unchanged. Of the 122 projects whose DCAs were published in both years, 35 have improved and 25 have declined.(^5)
This time last year, we rated 31 projects red or amber/red. The change in our assessment of these is shown in figure 8 opposite. Of these 31 projects, more than half did better this year and only one has got worse – being open about the challenges and allowing managers to focus on the problems has meant that even those projects with the greatest challenges have been put on a firmer footing. Those showing an improved DCA included:
- The Department for Transport’s Thameslink, Southern and Great Northern Franchise Competition to secure the future operation of major parts of the rail network.
- The Department of Health’s London Programme for IT to deliver patient administration systems in the London area.
- HMRC’s One Click project to bring many businesses’ tax needs together in one place and online.
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1 Leavers are those projects that have exited the GMPP portfolio between September 2012 and 2013, due either to completing, moving into business as usual delivery, or being re-scoped. 2 Eight of the projects in the DoH’s GMPP portfolio consist of the construction or upgrading of hospitals and health facilities. These projects are not being delivered by the DoH, but by NHS Trusts and Foundation Trusts. As these projects involve significant levels of DoH funding, or (for PFI schemes) a DoH guarantee of funding, the financial data for these projects are therefore reported in the GMPP. However, as these projects are not being delivered by the DoH, the MPA does not currently provide assurance for them. As a consequence no MPA DCA is provided for these projects. 3 This refers to data not published by departments, in accordance with the agreed transparency policy. See page 18. 4 The ‘reset’ category has been applied to the Universal Credit project. We have undertaken significant work to develop a ‘reset plan’ to place the roll-out of Universal Credit on a more secure footing, and the ‘reset’ DCA reflects this new status of the project. 5 The Department of Work and Pensions’ Benefit Cap, to limit the total amount of benefit that working-age people can receive so that households on out-of-work benefits will no longer receive more in welfare payments than the average weekly wage for working households.
The Office for National Statistics’s Web Data Access project to allow the dissemination of 2011 Census data online.
Of the eight projects that we rated red in September 2012, only one was still rated red in September 2013, the Queen Elizabeth Class Aircraft Carrier project. However, since September 2013, the Ministry of Defence has reported that a new contract has been agreed with the Aircraft Carrier Alliance. Announcing this new contract in Parliament on 6th November 2013, the Secretary of State confirmed that it was based on a detailed analysis of costs, and on improved commercial terms that provide stronger incentives for the shipbuilding industry to construct the ships to the agreed budget.
One project went from an amber/red rating to a red rating between September 2012 and 2013. This was the Information Systems and Operational Technology project to upgrade the IT used by the Serious and Organised Crime Agency (SOCA). The red rating was due to a part of the upgrade being delayed, and a correction plan is being developed with the supplier. SOCA ceased to exist in October 2013 and the project is now within the National Crime Agency (NCA). The project is still on track to achieve savings of £213m over 10 years.
Analysis of the projects in the GMPP demonstrates that, on average, projects with higher total costs and a longer lifespan have a lower DCA, which is unsurprising given the greater complexity of more costly and longer-lived projects. Furthermore, the number of projects that we rate green or amber/green decreases in the very early stages of planning, but increases as projects approach their planned completion dates. It is likely that this represents an initial recognition of the challenges that need to be addressed in a project, followed by increasing delivery confidence as solutions are identified. Improving our delivery of major projects
We have made some valuable progress in improving our approach to major projects, including through the world-leading Major Projects Leadership Academy. But we still have much to do to become excellent at delivering projects, particularly in planning and prioritisation, as well as further improving the skills and accountability of project leaders.
Over the last three years, delivering major projects has had a higher profile within government, enabling problems to be recognised and addressed. Over 500 independent assurance reviews have resulted in recommendations that have improved the delivery of many of the most important projects, while the Major Projects Leadership Academy (MPLA) has made a significant contribution to the development of project leaders. We will continue our drive to deliver these important projects more successfully.
Developing world-class project leaders across government
Look at any successful project and you will find a good leader. Projects need leaders with the ability to manage complex relationships, to prioritise among alternative approaches, to allocate scarce resources, to pick the right people for the right teams, and to solve problems as they arise. Leaders need good business sense and the right experience, and they must be able to motivate and inspire their teams. We will build and develop our cadre of project leaders, creating a recognised profession of experts who can move across government to deliver our most important projects.
In 2012, we established the world-leading MPLA in partnership with the Saïd Business School at the University of Oxford. The MPLA is now an important contributor to the government’s Civil Service Reform programme. To date, 200 project leaders have taken part, and our objective is that all eligible leaders of the government’s major projects will have started or completed the programme by the end of 2014. Leaders from across government who have participated in this programme have reported that it has helped them improve the delivery of their projects. Given its success to date, the MPLA will continue to be central to our development of leaders of major projects. In addition, we will expand and deepen our work to develop project leadership across government. We will also develop specific training around particular challenges such as IT and transformation programmes.
Leaders also need excellent teams around them to deliver projects, so we are working on a programme to develop and support project delivery skills at every level, in particular through the Civil Service Project Leaders Network, established in March 2012, which allows for best practice to be shared across government.
Clear accountability
Developing leaders with the right capability is just one part of the story – they must also be given the accountability and authority to lead their projects. Complex accountability structures and unclear lines of responsibility within our major projects can make delivering them more challenging. Senior Responsible Owners (SROs) are the key individuals across government charged with leading projects. We will work progressively to increase the clarity that we provide to SROs over what they are required to deliver, supported by the decision-making responsibilities to accompany this.
Rigorous upfront planning and assurance
Being clear about the objectives at the start of a project is fundamental to success, accompanied by a rigorous process to ensure that a range of options are considered as to how these objectives can best be achieved. We already have rigorous processes by which major projects are developed and approved, built around a series of approval points in departments and the Treasury. But there is always room for improvement, and over the coming year we will continue to improve the process by which major projects are initiated. As part of this, we will be looking at the management of the overall portfolio of projects by department, helping departments match their objectives to the resources they have available, and ensuring that the collection of projects across a department works as a whole to deliver policy objectives.
Developing an open culture
Delivering projects of the complexity of those in the GMPP requires a recognition of the challenges involved – because it is through such openness that solutions can be found. This can only happen in an open culture, where those responsible for delivering projects feel able to raise issues as and when they arise. Our transparency agenda, exemplified through the MPA’s Annual Report, is a crucial component of this culture of openness.
“Investment of time and resource in a rigorous process at the outset is essential for success, and deficiencies cannot be recovered later.”
Lord Browne of Madingley, Government Lead Non-Executive “A whole new dimension to leadership training”
What project leaders are saying about the Major Projects Leadership Academy (MPLA)
The MPLA’s curriculum is designed and delivered by international business leaders and academics. A core part of the programme is to get participants learning from “the world’s best” project leaders. Amongst the senior leaders who have led MPLA discussions are Sir Ian Cheshire, Group Chief Executive of Kingfisher; Adrian Ewer, former Chief Executive John Laing; and Lord Browne, former Chief Executive of BP.
Paul Chapman MPLA Academy Director
340 participants by the end of 2014, increased from 169 at the end of 2013.
Leaders from over 45% of our major projects have participated in the MPLA.
“The MPLA has undoubtedly taught me some new and relevant concepts and given me new enthusiasm about the power of academic rigour. If the MPLA makes only a small difference to the outcome of this £15bn+ acquisition programme, given that the impacts and costs reach 50 years into the future, then the leverage is huge.”
Rear Admiral Henry Parker Director, Carrier Strike, MOD “What I have learnt is being felt every day in how I lead my team and drive the performance of my part of the organisation. I am more skilled in managing the working environment and challenging the internal norm.”
Dorothy Brown Director Workforce Management/HR Director Enforcement & Compliance, HMRC
“The MPLA brings a whole new dimension to leadership training – the first programme to address the unique issues around delivering major projects and an essential qualification for SROs and Directors of the Government’s mega-projects.”
Ray Long Director, Corporate Services Change, HMRC
“Over the last six months I have become more forensic in my approach to planning projects and have challenged others more on the quality of information they give me. This has already yielded significant financial savings on my project.”
Michael Hurn Director, Project Sponsorship – Technical & Commercial, HS2 Group, Department for Transport Statistical annex
The data on the Government’s Major Projects Portfolio
Under the government’s commitment to transparency, the data that is recorded by departments for projects in the GMPP is published by departments annually at the same time as the publication of the MPA’s Annual Report.
This data is: the MPA’s DCA; financial data; schedule data; and the departmental commentary on each of these. The data published this year was submitted to the MPA in September 2013, with exemptions to the publication of data permitted only under exceptional circumstances and in line with Freedom of Information requirements. In a small number of the most sensitive projects, these exemptions are made on grounds of national security. The majority of exemptions are made for projects that are undertaking commercial procurement exercises, where publication of data would harm our ability to secure value for money for the taxpayer. Fewer pieces of data have been exempted from publication this year than at the time of our last Annual Report – only 12% of projects have had one or more pieces of data exempted, compared with 21% last year.
In February 2014, the NAO published a memorandum on the MPA Annual Report 2012-13.1 The NAO recommended that future annual reports include more analysis of the published data, and this has been done in this Annual Report.
Interpreting the published data
Some context is required to be able to understand the data provided in the Annual Report. In particular, we need to take care when drawing direct year-on-year comparisons in the data given the changing nature of the portfolio.
- The projects in the GMPP change from quarter to quarter. Since last year’s report, 39 projects have left the GMPP – typically because they have been completed or have moved into their business-as-usual phase, or because they have been halted or strategically organised into larger programmes that contain a number of similar projects associated by their common aim. In addition, 47 extra projects have joined the GMPP since September 2012. These include both new projects that have just been initiated and existing projects that have been escalated either in scope or in strategic priority. As a consequence, comparison of the September 2012 data with the September 2013 data is a comparison between two groups of projects which have significant differences in composition.
- Changes can also occur within projects over the course of a year. For example, the scope of a project may be significantly increased and, as a consequence, the forecast cost may increase. The increase in budget year-on-year in this case would not represent an increase in costs for the achievement of the same objectives.
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1 Major Projects Authority Annual Report 2012-13 and government project assurance, National Audit Office, 2014. Available at: https://www.nao.org.uk/report/major-projects-authority-annual-report-2012-13-and-government-project-assurance/. Figure 9 The delivery confidence assessment of projects by department. The projects being delivered by departments change from year to year, as some projects leave and new projects join the GMPP. The data in figure 9 does not therefore show a comparison for any given department between the same projects.
1 Eight of the projects in the DoH’s GMPP portfolio consist of the construction or upgrading of hospitals and health facilities. These projects are not being delivered by the DoH, but by NHS Trusts and Foundation Trusts. As these projects involve significant levels of DoH funding, or (for PFI schemes) a DoH guarantee of funding, the financial data for these projects are therefore reported in the GMPP. However, as these projects are not being delivered by the DoH, the MPA does not currently provide assurance for them. As a consequence no MPA DCA is provided for these projects.
2 This refers to data not published by departments, in accordance with the agreed transparency policy. See page 18.
3 The ‘reset’ category has been applied to the Universal Credit project. We have undertaken significant work to develop a ‘reset plan’ to place the roll-out of Universal Credit on a more secure footing, and the ‘reset’ DCA reflects this new status of the project. Summary of data for all projects on the GMPP The distribution, by number of projects, of delivery confidence across the government’s portfolio in September 2012 and September 2013
| Delivery confidence, September 2012 | No DCA | Exempt | Reset | Green | Amber/green | Amber | Amber/red | Red | |------------------------------------|--------|--------|-------|-------|-------------|-------|-----------|-----| | 0 | 21 | 0 | 32 | 49 | 58 | 23 | 8 | |
| Delivery confidence, September 2013 | No DCA | Exempt | Reset | Green | Amber/green | Amber | Amber/red | Red | |------------------------------------|--------|--------|-------|-------|-------------|-------|-----------|-----| | 8 | 15 | 1 | 17 | 54 | 63 | 37 | 4 | |
Figure 10 Difference by department between annual budget and annual forecast spend as estimated at September 2013, £m. Forecast under-spend can be caused by a number of factors such as delays or changes to project schedule, redefinition of projects, or identification of savings.
Figure 11 The delivery confidence assessment in September 2013 of the projects scheduled to complete by September 2014 Key of department names
BIS Department for Business, Innovation and Skills CO Cabinet Office DCLG Department for Communities and Local Government DCMS Department for Culture, Media and Sport DECC Department of Energy and Climate Change DEFRA Department for Environment, Food, and Rural Affairs DfE Department for Education DfID Department for International Development DfT Department for Transport DoH Department of Health DWP Department for Work and Pensions FCO Foreign and Commonwealth Office HMRC Her Majesty’s Revenue and Customs HMT HM Treasury HO Home Office MoD Ministry of Defence MoJ Ministry of Justice NS&I National Savings and Investment ONS Office for National Statistics
Description of Delivery Confidence Assessment (DCA) ratings
Green Successful delivery of the project on time, budget and quality appears highly likely and there are no major outstanding issues that at this stage appear to threaten delivery significantly.
Amber/green Successful delivery appears probable; however, constant attention will be needed to ensure risks do not materialise into major issues threatening delivery.
Amber Successful delivery appears feasible but significant issues already exist, require management attention. These appear resolvable at this stage and, if addressed promptly, should not present a cost/schedule overrun.
Amber/red Successful delivery of the project is in doubt, with major risks or issues apparent in a number of key areas. Urgent action is needed to ensure these are addressed, and whether resolution is feasible.
Red Successful delivery of the project appears to be unachievable. There are major issues with project definition, schedule, budget, quality and/or benefits delivery, which at this stage do not appear to be manageable or resolvable. The project may need re-scoping and/or its overall viability reassessed.
Departmental data
| Department | Number of major projects September 2012 | September 2013 | Whole life cost (£m) excluding exempt data September 2013 | |------------|----------------------------------------|----------------|----------------------------------------------------------| | BIS | 10 | 12 | 14,374 | | CO | 5 | 8 | 1,412 | | DCLG | 4 | 3 | 281 | | DCMS | 6 | 6 | 1,431 | | DECC | 12 | 11 | 94,794 | | DEFRA | 4 | 3 | 4691 | | DIE | 2 | 2 | 10,192 | | DfD | 1 | 1 | 445 | | DfT | 17 | 12 | 83,808 | | DoH | 21 | 35 | 24,536 | | DWP | 12 | 12 | 13,422 | | FCO | 6 | 5 | 577 | | HMRC | 9 | 8 | 1,382 | | HMT | 2 | 1 | 0 | | HO | 20 | 15 | 5,374 | | MoD | 36 | 40 | 135,767 | | MoJ | 18 | 19 | 4,796 | | NS&I | 1 | 1 | 678 | | ONS | 5 | 5 | 647 | | Total | 191 | 199 | 396,607 |
Figure 12 The % of change in Project Senior Responsible Owners and Project Directors across GMPP projects at each quarter. The MPA collects information on project leader turnover as part of discussions with departments on project leadership capability and planning.
This report was updated on 17th December 2014 to amend the following: Page 12 typographical inaccuracy in the second paragraph, with respect to changes in DCA / Figure 10 updated graphic presentation error on DWP underspend / Figure 12 updated graphic presentation error on June 2013 turnover.
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e435ff4f17fe210456b1604ebd4f0b4291515c71 | This plan is taken from the papers of William Pitt, 1st Earl of Chatham, relating to hospitals and the poor in various English towns. There is no further information provided with the plan, but it dates back to when the asylum was first opened.
Brislington House in Bristol is believed to have been one of the first purpose-built mental asylums in Britain. It was built by Dr Edward Long Fox and opened in 1804. Fox was one of the first asylum owners to use a new treatment for the mentally ill known as moral treatment. This more humane method of treatment became the accepted practice within the Victorian asylum system.
The asylum was a private institution aimed predominantly at an elite clientele. Fox classified the patients according to social class, as can be seen from the floor plan.
Brislington House continued to be run by the Fox family until it closed in 1952. The Ground Plan of the Asylum for Lunatics at Brislington House near Bristol.
Erected 1806. by Dr. Fox.
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c4d7038c4979638671b14c463b0858f3d9b6dee2 | EMPLOYMENT TRIBUNALS
Claimant: Mrs B Mirikwe Respondent: HM Passport Office
Heard at: London Central
On: 13, 14, 15, 16, 17, 20, 21, 22 and 23 January 2020
Before: Employment Judge A James Mr G Bishop Mr D Clay
Representation
For the Claimant: Mr T Walker, counsel For the Respondent: Mr M Green, counsel
JUDGMENT ON LIABILITY
(1) The claims succeed for unfair dismissal (s 98(4) Employment Rights Act 1996); the claims under s 15 Equality Act 2010 in relation to (a) the imposition of the First Written Attendance Warning on 19 October 2017 and (b) the claimant’s dismissal; the reasonable adjustment claims (s 20 Equality Act 2010) in relation to (a) the alteration of trigger points for attendance management purposes; (b) moving the Claimant to a quiet work area with reduced sensory stimulus, including the Claimant's previous work bay/avoidance of bright lights; and (c) the provision of an adapted keyboard and screen protector.
(2) All of the successful claims were presented in time (s 123(1)(a) and (b) Equality Act 2010).
(3) All other claims do not succeed and are dismissed. REASONS
The Issues
1. The claimant presented claims for unfair dismissal, disability discrimination, and breach of contract/wages in her two conjoined claim forms. The issues were agreed by the parties and sent to the tribunal, following a preliminary hearing on 29 April 2019. We did invite Mr Walker to consider refining the issues prior to the evidence being heard in relation to the issue of substantial disadvantage. No formal change was made, although as set out below, Mr Walker did put the substantial disadvantage issues slightly differently in his final submissions. Nothing significant turned on that. The agreed list of issues is as follows.
Unfair Dismissal
1. Was the reason or the principal reason for the Claimant's dismissal one within subsection 98 (1) or (2) of the Employment Rights Act 1996 ('ERA'; 'a potentially fair reason'? The Respondent asserts that the reason for dismissal was capability. The Claimant asserts that it was her disabilities.
2. If the Respondent dismissed the Claimant for a potentially fair reason did the Respondent fulfil their obligations under subsection 98(4) of the ERA in acting reasonably in all the circumstances?
3. In particular did the Respondent:
a. Adopt a fair procedure, particularly its Attendance Management Policy and Procedures; b. Consider OH advice and recommendations; c. Consider recommended reasonable adjustments before referring the Claimant's circumstances to a Decision Maker Hearing; d. Refer the Claimant back to OH where there were concerns, in accordance with the Respondent's Policy and Best Practice; e. Taking into account mitigating circumstances, such as i. the Claimant's 17 years' service and absence record prior to 2016; ii. the Claimant's accident at work on 14 October 2016; iii. that details of performance concerns had not been raised with the Claimant; iv. adjustments recommended by OH on 22 December 2014, 2 October 2017, 9 March and 11 April 2018; v. the Claimant's grievance dated 27 November 2017; vi. the Claimant's readiness to return to work from 4 July 2018; vii. the subjectivity of the Decision Maker's determination of what is considered a reasonable timescale for returning to work.
4. Was the decision to dismiss the Claimant within the band of reasonable responses?
5. If the Claimant’s dismissal is found to be unfair, should there be a Polkey reduction to any compensatory award that the Tribunal may be minded to award?
6. Secondly, did the Claimant contribute towards her own dismissal in any way, and if so, would it be just and equitable to make a reduction to both basic and/or compensatory awards?
Disability
7. The Respondent accepts that from October 2017 to date, the Claimant’s Arthralgia Arthritis, migraines, depression and/or anxiety amount to disabilities under section 6 Equality Act 2010.
Jurisdiction
8. Has the Claimant brought her complaints under the EqA within the three-month time limit (s.123(1)(a) EqA 2010)?
9. If not, would it be just and equitable for the Tribunal to extend time (s.123(1)(b) EqA 2010)?
Discrimination Arising from Disability
10. Did the Respondent treat the Claimant unfavourably by:
a. Imposing a First Written Attendance Warning on 19 October 2017; b. Refusing to consider alterations to absence management triggers on 7 November 2017; c. Raising ambiguous performance concerns and requiring the Claimant to attend a performance management meeting on 8 November 2017; d. Dismissing her on 19 June 2018.
11. If so, was it because of something arising in consequence of the Claimant’s disability, namely:
a. Her absence from work; and/or b. Her request and/or the requirement of reasonable adjustments to be made to her working environment and equipment.
12. Has the Respondent shown that the treatment was a proportionate means of achieving a legitimate aim? The legitimate aim relied on is ‘the implementation of an absence management procedure that seeks to both minimise the impact of ill-health on an employee’s attendance whilst also ensuring the efficient running of the department’. (GOR para 22, page 83)
Failure to Make Reasonable Adjustments 13. Did the Respondent apply a provision, criterion or practice ("PCP") which placed the Claimant at a substantial disadvantage in comparison with people who do not suffer from the Claimant's disabilities? The Claimant relies on the following PCPs:
a. The requirement to provide regular and effective service; b. The ability to return to work within a timescale that management considered reasonable; c. Work to be carried out in an open plan, noisy, and brightly lit office environment; d. Inconsistent or no breaks during working hours; e. Use of standard office equipment; f. Documenting all sickness absences as one record; g. Non-payment of cab fares for staff.
14. The Claimant contends that the substantial disadvantage that she suffered was as follows:
a. Imposition of the First Written Warning on 19 October 2017: b. Being subject to an Attendance Management Process, including the Review Meeting on 1 February 2018; c. Being subject to anxiety and migraines caused by attending a noisy, open plan and brightly lit office; d. Exacerbation of her disabilities by irregular or no breaks from work; e. Exacerbation of her disabilities by the burden of using standard office equipment; f. Reduction in annual leave for rest and relaxation; g. Adverse sickness absence record; h. Difficulty with using public transport when disabilities were exacerbated.
15. If the PCPs placed the Claimant at a substantial disadvantage, did the Respondent fail to make reasonable adjustments to avoid the disadvantage? The Claimant avers that the following would have been reasonable adjustments:
a. Alteration and increase in trigger points for Attendance Management; b. Moving the Claimant to a quiet work area with reduced sensory stimulus, including the Claimant's previous work bay; c. Avoidance of bright lights; d. Regular micro breaks every hour and short breaks throughout the working day; e. Suitable space to rest if she was experiencing a migraine; f. Formal workstation assessment; to include an adapted keyboard, ergonomic chair and screen protector; g. Recording disability related absence separately to other sickness absence; h. Provision and payment of cab fares when Claimant’s disabilities flared up.
Victimisation
16. Did the Claimant undertake a protected act within the meaning of S.27(1) EqA 2010? The Claimant relies on the following protected acts:
a. Grievance dated November 2017, asserting disability discrimination and failure to make reasonable adjustments; b. Employment Tribunal Claim number 2201583/2018.
17. Did the Respondent subject the Claimant to a detriment, namely her dismissal, as a result of the above protected acts?
Unauthorised Deductions from Wages/Breach of Contract
18. Was the Claimant entitled to payment under the Civil Service Compensation Scheme because her employment was terminated on grounds of ill health?
19. If so, has the Respondent paid the Claimant her full entitlement? The Claimant avers that deductions of approximately £6,000 have been made from her compensation without authority or clarification of the deductions.
Remedies
21. If the Claimant’s claims are well-founded, is she entitled to the following compensation:
a. compensation for unfair dismissal; b. an order for reinstatement; c. a declaration in relation to the Claimant’s discriminatory treatment; d. an award for injury to feelings as compensation for unlawful discrimination suffered; e. full compensation under the Civil Service Compensation Scheme?
The hearing
2 The hearing on liability took place over nine days. Evidence and submissions on liability were dealt with on the first six days. Deliberations took place on the remainder of the sixth, and on the seventh and eighth days. It was arranged that on the ninth day, the tribunal would give its decision and reasons and, if the claimant was successful, would go on to deal with remedy, to the extent necessary or required. Having delivered our judgment orally, the parties requested that the remedy hearing be adjourned, to enable the parties to consider the implications of the judgment for remedy. We agreed to do so. 3 The tribunal heard evidence from the claimant, from Mr Pav Alam, Industrial Officer for the Public and Commercial Services Union (PCS) and Joycelyne Pramang, Examination Officer for HMPO and the HMPO Branch Secretary for PCS.
4 For the respondent we heard from Lindsay Gouevia MacLeod, Service Delivery Manager who heard the appeal against the First Written Attendance Warning (FWAW), from the dismissing officer Sharon Sauer, a grade SEO civil servant and from Danny Frost, Head of Operations for the South and Wales areas who heard the appeal against dismissal.
5 We also read statements from Karen Barkley, a Grade EO civil servant and Martin Aherne, a grade SEO civil servant. Unfortunately, Ms Barkley was not able to attend during the hearing due to ill health. Mr Green informed us that he had decided to rely on her written statement, rather than apply to adjourn the hearing. As a consequence, her evidence carried much less weight than if she had been able to attend and have her evidence tested under cross-examination. Mr Aherne’s statement sets out the calculations in relation to the deductions made. In the end, the CSCS payment issue appeared to come down to whether the deductions should have been made gross from the claimant’s final salary payments etc, or net of tax and NI. That was to be a matter for submissions rather than evidence. The figures and calculations in Mr Aherne’s statement were agreed.
6 There was an agreed trial bundle consisting of two lever arch files containing about 500 pages each. A few additional pages were added during the hearing.
7 Reasonable adjustments were made for the claimant. An adjustable chair was provided. She was able to take and encouraged to ask for regular breaks as appropriate and was reminded of that on a number of occasions. She was able to stand up and stretch and move around, as required, during her evidence, and whilst other witnesses were giving evidence.
**Factual findings**
8 The claimant started work for the respondent on 29 April 2001 as a Passport Officer.
9 The respondent (HMPO) is part of the Home Office. HMPO is responsible for issuing passports in the UK and issues arising from that work. The claimant worked at its Globe House office in Westminster, SW1.
10 The claimant was diagnosed with arthralgia arthritis in 2001. She was diagnosed with migraines in 2002.
11 In July 2014, following the death of her husband, she was diagnosed with depression. Workstation assessments, 2014, 2015 and 2016
12 A workstation assessment was carried out for the claimant on 16 December 2014. This confirmed that her display screen was too high. It was repositioned. Her document holder needed replacing. It was noted that her chair was ten years old. The headrest was not correctly positioned and needed to be corrected. There were no other issues raised in relation to the chair at that time.
13 Lighting and noise were said to be ‘the main issues for Bridgette in her current position. She will need to move away from the windows and from the printer or any area where colleagues may need constant access around her desk’. As for breaks, it was stated that the claimant ‘does try to take a 5 to 10-minute break away from her desk every hour as recommended’ but that she does not always remember to do it. The covering letter with the report dated 22 December 2014, from Health Management, recommended that generally, all employees who could be considered users of computer equipment should take ‘micro-breaks every 15 minutes or so (stop inputting, look around and change eye focus length) and a minute or two every hour to enable change of posture and position and stretching’.
14 In the recommendation section of the report it was noted that ‘initially a change of workstation position would be recommended. Bridgette will be more comfortable sat away from the window and noisy office equipment’. It was also stated that ‘a filter for Bridgette’s display screen may be helpful to reduce the number of migraines she suffers’.
15 A further workstation assessment was carried out on 28 April 2015. The report noted that the anti-glare screen needed to be replaced as it was chipped and stuck on with tape around the edges. No issues were raised in relation to her keyboard. It was recommended that her chair be replaced. In relation to lighting and noise it stated: ‘no issues have been reported with lighting and noise within the office’. Similar advice to that contained in the 2014 report was given about regular breaks and changes of activity. The outcome and recommendations section confirmed that a new chair should be provided, a new table fan, and an antiglare screen for her monitor.
16 In the bundle is an equipment request, (page 732A), relating to a new chair for the claimant. The date of the request is 21 May 2015. It is recorded that the new chair was received and installed by August 2015. The claimant was adamant in her evidence that was wrong, and that a new chair was not provided. We deal with that conflict of evidence below.
17 During 2015 the claimant was suspended for a period. The claimant was aggrieved by her suspension. She was subsequently exonerated, following the investigation, and she returned to work. When she came back however, she was moved from her previous workstation and to a new team. This was not discussed with her beforehand. Prior to the move she was happy with the area where she had been sitting, in a booth, which was both quieter and less bright. She was unhappy about the location of her new workstation.
18 A further workstation assessment was carried out on 12 July 2016. The covering letter contained the same recommendations in relation to breaks and micro breaks as the 2014 report covering letter. The report itself states: ‘Ms Mirikwe reported that she was able to take a break when required whilst at work and she also left the workstation to perform admin duties’. In the brief history section, it was noted that she had frequent migraines as well as lower back and neck pain. The report noted that her back condition was aggravated by sitting for too long and relieved by frequent movement. She told the assessor that she ‘was constantly changing position to feel comfortable and feels that she would benefit from a more supportive chair’. No problems were noted regarding the keyboard. In section 8 it was noted that ‘a DSE compliant office chair was being utilised. It was observed that this did not fit Ms Mirikwe well, as the contours of the backrest did not suit the shape of her spine’.
19 In relation to lighting and noise it was noted that ‘the lighting appeared suitable and was achieved via recessed strip lighting and windows to provide natural light…. Ms Mirikwe started to find the natural lighting and the surrounding office to occasionally aggravate her migraines. The noise in the office is reported to sometimes be too loud as people are frequently moving around’.
20 It was recommended that ‘a DSE compliant chair with the following features is supplied to improve Ms Mirikwe’s back support and to encourage increased movement’. A list of the features of a DSE compliant chair then followed. The report further recommended: ‘As the tape holding the screen filter in place can somewhat obstruct Mrs Mirikwe’s view, it is recommended that either a replacement filter be provided or a way in which to hold it in place without the tape is found’.
21 The claimant stated in her evidence before us that the chair referred to in this OH report was the chair that she was using when the accident occurred in October 2016 – see below. We find however, on the basis of the equipment request, that a new chair had been supplied. However, we also find, based on the 2016 OH report, that the chair that was provided was not in fact suitable for the claimant and that a different chair should have been provided for her.
**Accident at work – 14 October 2016**
22 On 14 October 2016 the claimant suffered an accident at work. She fell as she was getting up from her office chair which tipped up as she did so. She struck her face against the desk and fell to the ground. The chair fell on top of her and pinned her down. The claimant believed that if she been provided with a new chair, the accident would not have happened. She was subsequently signed off work on 24 October 2016 with ‘bruising and migraine’ and remained off work until 8 December 2016. The subsequent fit notes refer to ‘migraines’ as being the reason for her sickness absence.
23 The claimant attended the emergency department regarding the accident at her desk on 23 December 2016, after she had returned to work. The Estates Manager’s undated email at page 750 in the bundle, confirms that they were aware that OH had recommended a new chair ‘which is awaiting approval from HOPG’. The author of the report, Ms Ullah, stated that her and a colleague had checked the chair the claimant had been sitting in when the accident occurred and it appeared to be stable and sturdy and in a good condition.
24 It is the claimant’s case that following the accident at work on 14 October 2016 her migraines increased. She therefore linked her absences to the accident at work. The absence records show that there was a demonstrable increase in her sickness absence for migraines following the accident. In the two years from October 2014 to October 2016, the claimant had five absences totalling nine days. In the six months from January to July 2017, the claimant had five absences totalling 14 days. It is clear therefore that there was a significant increase in absences due to migraines following the accident. That does not necessarily mean that those absences were caused by the accident however, an issue we return to below.
25 By the time of the claimant’s return to work on 8 December 2016, a suitable ergonomic chair had been sourced and provided for her. The claimant confirmed that she was happy with this new chair.
Absence management process - 2017
26 The claimant was absent because of a migraine, between 11 and 13 January 2017.
27 The claimant applied for civil service injury benefit, following her accident. She was referred to OH, who made enquiries, amongst others, with her GP. On 20 January 2017 the claimant gave her consent for a medical report to be obtained.
28 On 25 January 2017 there was an investigation regarding the claimant’s accident at her desk.
29 On 31 March 2017 an OH doctor requested further information regarding the accident from the claimant’s GP. Yet further information was requested on 25 May 2017.
30 On 12 April 2017 the claimant left work early due to a migraine. The claimant was subsequently absent due to a migraine between 8 and 10 May 2017.
31 We were directed to emails between Karen Barkley, Khayrun Rahman and Esther Amara dated 28 June 2017, in which Khayrun Rahman asked: ‘who advised not to put the claimant on a sickness warning?’ We did not find anything sinister in relation to that email, which simply reflected a manager at a higher level going through sickness absence records and checking why a warning had not been given when potentially it could have been. This does however demonstrate that the claimant’s then line manager Karen Barkley was not complying with the absence management procedure. For example, there was no return to work meeting with the claimant following her lengthy absence between October and December 2016. There do not appear to have been any return to work meetings following the absences referred to above, in 2017.
32 The reply from Karen Barkley to Khayrun Rahman of 28 June 2017 stated that she had been advised that no action should be taken until a decision was made regarding the claimant’s injury benefit application. The claimant does not appear to have been told by Ms Barkley that she was waiting for that, before deciding what to do in relation to the absences. If the claimant had been told about it, there was no record.
The Absence Management Procedure (AMP)
33 The Absence Management Procedure (AMP) is a key document in this case and it is therefore necessary to look at it in some detail. The numbers in brackets below refer to the paragraph numbers in the document. 34 The AMP states that it is important to act quickly to minimise the impact of ill health and attendance on performance (4). The manager and employee are to work together and adopt a work-focused approach (5). Managers should act early to address health issues which may affect attendance or performance, support employees to return to work as soon as possible following a period of sickness absence, hold a formal attendance meeting with all employees who reach consideration trigger points and decide whether to take formal action and regularly access relevant online staffing reports etc (6).
35 Workplace adjustments are dealt with from paragraph 11 onwards. It is noted that those are legally required for staff with a disability. But it is also ‘good practice to consider any request for adjustments’, not just those that the employer is legally obliged to make.
36 If an employee takes sick leave, the manager and employee should have a discussion by telephone. Following that initial contact with the employee the manager should, amongst other things, carry out a stress risk assessment if the absence is stress-related (21).
37 The manager and employee should have a Return to Work discussion after every period of sickness absence, ideally on the day the employee returns to work. The discussion should include a review of all sickness absences in the rolling 12-month period (45).
38 Attendance should be formally reviewed if an employee’s sickness absence level reaches the consideration point (53). The consideration trigger points are set out in paragraph 54 as either six working days or three spells of absence during, amongst others, a rolling 12-month period.
39 According to paragraph 49, there are six exceptions where sickness absence will automatically not count towards consideration trigger points. These include, where an employee has a disability and reasonable adjustments which will enable the employee to return to work have not yet been considered or made; or where there is a qualifying injury at work. Paragraph 49 also states that ‘discretion may be awarded in other cases, subject to evidence-based decisions by line-managers’ (and see para of the AMP 61 below). The claimant was not waiting for reasonable adjustments to be carried out which would enable her to return to work, at the time that the warning was issued. As noted below, her absence was not a qualifying injury for reasons which are set out in the September 2017 OH report.
40 When an employee’s sickness absence level reaches or exceeds the consideration trigger point, the line manager should consider whether a written attendance warning is appropriate (59). Paragraph 61 states: ‘A warning should not be given if the sickness absence is due to an injury sustained, or disease contracted, in the course of the employee’s duties. The employee may be able to claim injury benefit. If injury benefit is awarded, the initial and up to a maximum of six months absence will be exempted as a qualified injury at work. This will ensure full pay before normal sick pay arrangements are applied…. Line managers have discretion not to give a Written Attendance Warning. The manager should consider the circumstances of the absence and the employee’s absence history.’
41 There then follows a three-month improvement period and/or a nine-month sustained improvement - paragraphs 69 to 74 - during which a stage 2 final written warning can be issued. If the employee does not meet the attendance level expected of them following a stage 2 final written attendance warning, dismissal should automatically be considered (74).
42 During a continuous long-term sickness absence, the manager and employee are to meet at an informal review to keep in touch and explore the support needed to help the employee return to work (79). Paragraph 80 states that meetings should take place as follows: an informal review (KIT) after 14 consecutive calendar days of sickness absence; a formal attendance review meeting after 28 consecutive calendar days; another when the sickness absence has lasted three months; and every quarter thereafter. At 12 months there should be mandatory consideration of dismissal.
43 After the informal review, the manager should consider whether the business can continue to support the sickness absence. If not, they are to arrange a formal attendance review meeting (a FARM – para 82, AMP). FARMs are dealt with between paragraphs 83 and 88 which confirm, amongst other things, that during such a meeting the manager should undertake the same actions as in an informal review; discuss with the employee whether they are likely to return to work in a reasonable timescale; consider whether there may be an underlying disability and whether any reasonable adjustments may be appropriate; and consider whether the business can continue supporting the employee’s absence.
44 Paragraphs 89 to 101 deal with situations where the employer is considering dismissal. Where an employee is absent for a reason related to disability, the Department ‘must explore options to make workplace adjustments which will enable the employee to return to work’ (90). According to paragraph 96, the decision manager should dismiss the employee if all the following apply: the business can no longer support the employee’s level of sickness absence; downgrading is not appropriate or the employee rejects this option; where there are no further workplace adjustments which can be made to help the employee return to satisfactory attendance levels in a reasonable timeframe; occupational health advice has been received within the last three months; and an application for ill-health retirement (IHR) would not be appropriate. It is accepted that downgrading and IHR were not applicable in the claimant’s case.
45 Appeals against dismissal are dealt with between paragraphs 102 and 114. Amongst other things, the appeal manager should consider the evidence used for the original decision and any new evidence provided by the employee for the appeal (111). An appeal hearing should be conducted as a full rehearing of the case, where dismissal or downgrading is being considered (although that is not mandatory where only a warning has been given). This means that the appeal manager ‘must consider all the facts afresh and come to their own decision’ (112).
Formal Attendance Review Meeting (FARM) 28 July 2017
46 A Formal Attendance Review Meeting (FARM) took place on 28 July 2017. Present were the claimant, Leslie Frost from PCS, Karen Barkley and Nilza Passangy as notetaker. Amongst other things, at that meeting, the claimant complained that the accident could have been avoided. She argued that she was paying the price of management’s lack of a duty of care for her. (We find that she was referring in that regard to the problem with her chair). There was some discussion about changes to the absence trigger points - Ms Barkley said that that had been looked into. There is no record as to how the trigger points were changed, if at all and we find that there was no formal recording of that. Ms Barkley told the claimant at the meeting that she was not able to change the triggers again. It is not clear how they were changed, if at all, due to the lack of any formal record of it. At the conclusion of the meeting, the claimant’s union representative complained that there were still many unresolved issues from the last meeting. Ms Barkley stated that once the occupational health report came through she would arrange to meet with the claimant to discuss it.
6 September 2017 OH report – qualifying injury issue
47 The claimant was absent between 22 and 24 August 2017 because of a migraine.
48 OH advice was eventually provided by Health Management about the claimant’s eligibility for civil service injury benefit on 6 September 2017, in relation to the October 2016 accident. The claimant informed us and we accept that this report was written without any meeting with her and without speaking to her. It was determined that the claimant was not eligible for injury benefit because the reason for the absence – namely, migraines - was not caused by the accident. Specifically, the conclusion (see page 767 of the bundle) of Dr Mirza that there wasn’t a direct causative relationship between the accident and the medical cause of the absence under consideration; and that the medical cause of the absence was not 50% or more attributable to the accident.
49 However, Doctor Mirza did conclude (page 768), that: ‘Considering the previous history of headaches/migraines it would not be unreasonable to anticipate that the index event at work contributed towards symptoms of her headaches/migraines during the alleged period of absence. However, in my opinion the incident at work as alleged is unlikely to be mainly responsible for her headaches/migraines. It would also be relevant to comment our understanding (sic) that... the injury benefit scheme rules do not provide for an award in respect of an exacerbation of that pre-existing medical condition ... In my opinion this lady’s headaches/migraines... are unlikely to be mainly related to the index event. Additionally, this is a recurrent episode of migraines/headaches ... which she has had a history of prior to the index event and subsequently as noted above injury benefit scheme rules do not provide for an award in respect of recurrence of a pre-existing medical condition. In my opinion and for the reasons noted above the medical criteria for a qualifying injury are unlikely to be satisfied’.
2 October 2017 OH Report
50 The claimant was absent by reason of migraine on 28 and 29 September 2017.
51 On 2 October 2017 an OH assessment was obtained regarding the claimant’s fitness to work. The subsequent letter reported that the claimant had noted that since the accident the frequency of her migraine attacks had increased significantly and she was currently experiencing migraines 2 to 3 times a week which could last up to 4 days and could cause blurred vision and neck stiffness as well as sensitivity to bright light. The letter confirmed the claimant’s belief that the primary trigger for her migraines was stress. The migraines occurred mostly at work. She was having a migraine attack during the consultation, and it was noted that she was sensitive to bright light.
52 The OH letter goes on to note that the claimant was suffering from depression and that the claimant believed this was made worse by lack of support from management. The doctor concluded that the claimant was fit to continue in her role with adjustments. Ideally she should work in an environment with reduced sensory stimulus and if possible, work in a quiet area of the office. The report suggested that the respondent ‘may wish to review the lighting in the office. Ms Mirikwe would benefit from avoiding bright light. She should take regular short breaks from her desk ideally every hour’. The doctor recommended that the employer provide a quiet darkened room for Ms Mirikwe to rest in should a migraine attack occur at work. The report suggests that the respondent consider adjusting the sickness absence trigger levels, but that it was an organisational decision. Finally, the letter noted that an ergonomic keyboard had previously been provided but had gone missing. It recommended that the position in relation to her keyboard be reviewed and that she should be provided with a suitable one.
53 It was the respondent’s case that the claimant was offered two other keyboards but she refused them. The claimant was adamant that no further keyboards had been offered. The notes of the grievance meeting on 26 January 2018 record the claimant’s union representative Ms Pramang stating that a keyboard had been offered and not accepted.
54 We find that the claimant was offered two further keyboards; but there is no record as to when those were offered, why the claimant refused them, and whether or not the refusal was reasonable. No one wrote to the claimant afterwards to suggest that her refusal was unreasonable and no further attempts were made to obtain a suitable keyboard. That adjustment therefore remained outstanding.
First Written Attendance Warning
55 The claimant was absent by reason of migraine on 17 and 18 October 2017.
56 She received a First Written Attendance Warning (FWAW) on 19 October 2017. This warning came out of the blue. There should, under the procedure, have been a further meeting with the claimant in order to discuss the occupational health reports, prior to the warning being issued. The letter of 19 October refers to a meeting with Ms Barkley on 8 August 2017. It is common ground that there no meeting took place on that date. In any event, a meeting then would have predated the OH reports of September and October 2017. The letter also refers to the monitoring period for the warning being for a period of 12 months from 27 June 2016 to 14 July 2017, a period which had already expired. Further, that was not a period of 12 months.
57 The claimant appealed against the FWAW on 26 October 2017. The appeal is dealt with further below.
Meetings with Mr Dalon – November 2017
58 A meeting took place between the claimant and Jonathan Dalon on 6 November 2017 to discuss the 2 October 2017 OH report. An email was sent to the claimant by Mr Dalon following the meeting, summarising the points discussed. Mr Dalon agreed to look into the possibility of moving her work location. He agreed that a darkened room was available for her use if she suffered a migraine whilst at work, that being the first aid room. He referred to microbreaks being difficult to allow on an hourly basis. This was probably in the context of the claimant saying she was entitled to a 10 to 15-minute break every hour – see below. He agreed to her having an extra break in the afternoon, in addition to a 20-minute break in the morning and a 40-minute break for lunch. He declined to alter the managing attendance figures and targets and stated that those would be reviewed when the other adjustments had been put in place and a proper internal assessment on performance and remedial actions had been made. He undertook to replace the ergonomic keyboard. As for the screen filter, he undertook to look at that and compare it to other ones in the back office and seek to replace it only ‘if it were a hazard’.
59 As for the lighting issue, Mr Dalon says that he would speak to his colleague Esther Amara about a move to her previous work location. The claimant went there with Mr Dalon after the meeting, to show him where that was. She was confident, following the meeting, that she would be moved to her previous location.
60 In relation to the micro-breaks issue, the claimant told us that she should be allowed a 10 to 15-minute break every hour, away from her desk, to stretch and move around but that it was impossible to reach her targets if she did so. The amount of time she suggested is clearly different to the breaks recommended in the occupational health reports, as noted above. The claimant accepted that she was told that she could take breaks, but that she couldn’t meet the targets if she did take them and therefore she generally did not. During cross-examination the claimant denied that Mr Dalon had offered her an extra 20-minute break in the afternoon. Having been taken to the document, she accepted that it had in fact been offered.
61 As for the screen filter, that did not fit properly to her computer and had to be taped onto it. It kept falling off. The claimant told us that it caused a migraine but there wasn’t any medical evidence to support that contention and we reject it. She was still using the same screen filter when she went off sick and it had not been replaced.
62 The list of issues refers to the documenting of all sickness absences in one document – we find that was the practice. That does not appear to be disputed. Stage 1 Written Performance Warning
63 A performance management meeting took place on 8 November 2017. Present were the claimant, Mr Dalon, and Joycelyne Pramang her union representative. The claimant complained that the performance concerns were “ambiguous”. The notes of the meeting are in the bundle, and referred to alleged errors on 14 August ‘2016’ (we assume it is meant to refer to 2017), two errors on 18 August 2017, a further one in August, and further errors on 6 September, 12 October and 1 November 2017. We find that the errors raised were not ambiguous. It is clear what was being discussed.
64 The claimant confirmed during cross-examination that she was not saying that these performance issues were raised in retaliation for her asking for reasonable adjustments.
65 There appears to have been no dispute by the claimant that the errors had occurred. The main issue taken by her and her union representative was that the errors should have been raised at the time that they occurred, not two to three months later. She also provided an explanation for some of them.
66 Ms Pramang was cross-examined at length about this meeting. She had concerns about the meeting because there did not appear to have been any informal process followed, prior to this formal performance meeting taking place. It seemed odd to her, as an experienced union representative, that management had progressed straight to a formal meeting. Similarly, Ms Pramang took issue with the fact that the mistakes went back a number of months. A log is kept of any mistakes made. The usual practice is for the line manager to raise those issues with the employee, as and when they arise. If those issues continued to arise, a more formal meeting would take place. The claimant’s case was very unusual, Ms Pramang explained to us, in that there were issues raised which went back so long and which had not previously been raised. The whole point of raising issues when they arise, is to flag them up with the employee and give them a chance to improve. Further, it could be the case, for example, that an employee was following an old policy, having not been provided with the new one. If that was the reason, providing them with the new policy would then make it much less likely that the mistakes would reoccur.
67 Following the meeting, a Stage 1 Written Performance Warning was issued. A copy of the warning was provided by Ms Pramang at the hearing. Surprisingly, that had not been disclosed by the respondent prior to the hearing. Up to that point, her case had proceeded on the assumption that a formal warning had not been issued. There does not appear to have been any appeal against it, although the claimant did go off on long-term sickness absence shortly thereafter.
68 Ms Pramang told us in cross-examination that she had been told by Mr Dalon that he was not going to give the claimant a warning, but then he was told that he had to, and that is why the warning was subsequently given. Ms Pramang said she had an email from Mr Dalon to that effect and would produce it. No such email has been produced to us and we therefore make no such finding. Appeal against FWAW – 21 November 2017
69 An appeal hearing took place in relation to the issue of the FWAW on 21 November 2017 between the claimant and Mrs Linda Gouevia MacLeod, Customer Services Manager and Ms Pramang.
70 Mrs MacLeod accepted that the appeal hearing was conducted by her as a complete rehearing, so she was not fettered by the decision of Ms Barkley on 19 October 2017. She accepted that under the AMP, return to work discussions should take place after each absence; and that any adjustments to sickness absence trigger points should be noted on the record. She accepted that the purpose of a warning, pursuant to paragraph 59 of the policy, was to alert an employee that attendance levels must improve. She accepted in relation to the claimant’s previous sickness absences, including in June and July 2017, that the claimant should been invited to return to work meetings with her manager Karen Barkley but that those meetings did not take place, in contravention of the policy.
71 She also agreed that the 12 July 2016 OH report stated that the claimant required a DSE compliant chair and that the claimant was complaining about that. She accepted that the claimant had asked for a stress risk assessment but could not recall if that was done. The claimant did not have an ergonomic keyboard at that time; that adjustment was still outstanding. She accepted that had the claimant had to wait for two years for the armrests to be replaced on her chair, that would not be acceptable and she could understand why the claimant would feel frustrated.
72 There was also a discussion about regular one to one meetings. The claimant was asking for regular meetings and Mrs MacLeod accepted that those one-to-one meetings were for the manager and an employee to discuss worries and issues. (We note here that we accept what Ms Sauer told us later on that those meetings could raise performance issues too). The claimant told us, and we accept, that Ms Barkley had told her that those one-to-one meetings would be about performance and not about the claimant’s worries and issues. If one to one meetings had not taken place, Mrs Macleod accepted that would be ‘disappointing’. We find that they did not take place as frequently as they should have and that they were not balanced meetings which looked at both the concerns of the employee as well as any performance issues.
73 As noted above, under the AMP, a meeting should take place with the employee to discuss the OH report(s), before a warning is given. There were two OH reports relevant to the issuing of the FWAW. The report in relation to injury benefit of September 2017; and the OH report of 2 October 2017. Mrs MacLeod agreed that both OH reports should have been discussed with the claimant before a warning was issued, and if not, the claimant would justifiably feel that the procedure had not been properly complied with. She accepted that there was no record of any discussion having taken place. She recalled that she did consider a record of the meeting; she told us that she was ‘pretty confident’ that was considered as part of the FWAW appeal. She did not have a discussion with Ms Barkley about such a meeting; she recalls seeing a document as part of her consideration of the documents relating to the appeal. Whether or not her recollection is correct, we find that no such meeting took place between Ms Barkley and the claimant. We were not shown any record of such a meeting taking place and we accept the evidence of both claimant and Ms Pramang that it did not.
74 Mrs MacLeod was questioned at length about paragraph 61 of the AMP (see above). Mrs MacLeod accepted that there is a difference between the first part of paragraph 61 and the second part of it. Her interpretation, as confirmed in re-examination, as to the first part, was that the absence had to be completely due to the accident, not just partly due to it. She agreed that the circumstances of the claimant’s accident at work were such that it would be classed as having occurred in the course of her duties.
75 Mrs MacLeod accepted that the claimant’s migraine-related absences increased significantly after the accident. She also accepted that the increase in the claimant’s migraines stemmed from her accident but she took that into account in her decision on the appeal. During re-examination by Mr Green she accepted that the accident had exacerbated the migraines; she did not have an exact idea how much, in terms of the number of days extra that this would have led to in terms of absence.
76 On page 484 in the bundle, are notes of the meeting which appears to show that Mrs MacLeod misread the September 2017 report in relation to the injury benefit issue, by stating that ‘it would be unreasonable to anticipate that the index event contributed towards symptoms of her headaches/migraines’, when in fact it should have said that it would ‘not be unreasonable’ to link the two. This was clearly an error, although we find it was a genuine error on her part.
77 At the close of cross-examination, Mrs MacLeod conceded that the decision of Ms Barkley could have been different if the occupational reports had been discussed. Almost immediately afterwards, at the beginning of re-examination by Mr Green, she appeared to say the opposite, by stating that she did not think that the decision would have been different in relation to the issuing of a warning; the difference would have been that the reasonable adjustments were followed up. That was contradictory.
78 Mrs MacLeod told us and we accept that trigger points would usually no more than double to 12 days, or six absences, in a rolling twelve-month period.
79 Mrs Macleod said that in coming to her decision, she considered the overall level of absence of the claimant, including the 6.5 weeks she had been absent following the accident.
80 Ms Pramang’s interpretation of paragraph 61 was that an automatic exception should have applied. She considered it strange, by reference to the procedure, for a warning to have been issued, so long after the claimant’s absence between October and December 2016. Under the AMP, a return to work meeting should have taken place straight after the claimant returned to work in December 2016.
81 In her view, it was not necessary for the respondent to wait for the occupational health advice in relation to injury benefit, because an automatic exemption applied. The injury the claimant suffered occurred in the course of her employment duties – para 61 therefore applied. It was evident to her as the claimant’s representative that the sickness absence was due to the accident. She hoped that management would apply their discretion in those circumstances, to the extent that any discretion applied. The claimant banged her head and her migraines increased after that. She did not think what she described as the ‘hard-line route’ applied by management should have resulted from the circumstances of this case.
82 On the day of the appeal hearing on 21 November 2017 the claimant suffered a migraine attack at work. She left home early. As things turned out, she never returned to work after that date. The claimant asked the respondent to pay for a taxi ride home for her but that was refused. She was upset about that because she understood that the day before, HMPO had paid for a taxi home for a colleague who had been taken ill at work.
83 The claimant was signed off from work, the reason being ‘stress at work, low mood’, on 27 November 2017. She was referred for weekly counselling. The subsequent fit notes she received from her GP refer to “low mood”.
84 The claimant raised a formal grievance on 27 November 2017, in which she complained, amongst other things, of disability discrimination.
85 The appeal decision in relation to the attendance warning was delivered on 28 November 2017. The appeal was rejected.
Grievance meeting 26/01/2018; FARM meeting 01/02/2018
86 Ms Rahman wrote to the claimant regarding her grievance on 29 November 2017. The claimant was asked to meet with her new line manager Lera LaSalle to try to resolve it informally. An invitation was issued to an informal grievance meeting on 3 January 2018. The claimant was invited to a formal grievance meeting on 15 January 2018. The formal grievance meeting subsequently took place on 26 January 2018.
87 ACAS early conciliation was commenced on 4 December 2017 in relation to the first ET claim. The first ACAS early conciliation certificate was issued on 4 January 2018.
88 A ‘keeping in touch’ call took place with Lera La Salle on 7 December 2017. On 12 January 2018 an invitation was sent regarding a FARM to discuss the claimant’s progress and what the employer could do to help the claimant return to work.
89 There was a discussion at the grievance meeting about the respondent paying taxi fares for some employees but not for others. The way the claim was put in the list of issues is that the respondent had a policy of not paying taxi fares. The claimant accepted in evidence that the fact that they did pay taxi fares for some staff shows that the respondent did not have a blanket policy of not paying taxi fares for staff at all. There is a note in the bundle on page 479Q in relation to her colleague who on 20 November 2017 was taken ill and for whom the department paid for a taxi home. The note records his symptoms. He had been vomiting in his section and in the toilets in the mezzanine; he had stomach-ache, headache and dizziness and was feeling cold. He was taken to relax in the first aid room and was given a bowl in case he vomited. While waiting for the cab to arrive which had been ordered for him, he vomited twice in front of the person who wrote up the note.
90 On 30 January 2018 solicitors acting on behalf of the claimant served a notice of claim on the respondent regarding the October 2016 accident. For reasons which are not entirely clear, but which do not affect our decision, a personal injury claim is no longer being pursued. The formal attendance review meeting (FARM) took place on 1 February 2018. Present were the claimant, Ms La-Salle, and Ms Pramang. Ms Pramang and the claimant raised concerns that a number of reasonable adjustments remained outstanding, including the provision of an ergonomic keyboard, a screen filter, and moving the claimant to a less brightly lit and quieter area of the office. The notes record, for instance, the claimant saying: ‘... as no reasonable adjustments have been made, where do we go from here? She is concerned she will return to the same issue’.
The written decision on the claimant’s grievance was given on 12 February 2018. The grievance was rejected. In the decision letter, Ms LaSalle stated that it was not possible to make the adjustments requested in relation to the workstation. The reasons given (page 572B), included that amending the lighting would impact others working in the back office. As for working in a quiet area, the letter said that noise levels fluctuate throughout the floor due to the operational nature of the work carried out. And as for avoiding bright lights, the letter said that this would impact on other colleagues who were sitting near her and this was deemed to be unreasonable. The letter confirmed that the additional breaks as advised by Mr Dalon were still on offer and that ‘there are opportunities throughout the day to move away from your desk which would be considered as a micro-break’. Ms LaSalle again declined to increase the sickness absence triggers. She stated in the letter that the claimant’s ergonomic keyboard was sufficient, and that the screen filter was not deemed a hazard, which meant that it was not going to be replaced.
On 14 February 2018 Ms LaSalle wrote to inform the claimant that as she was unlikely to be able to return to work within a reasonable time, she would consider whether her sickness absence could continue to be supported or whether dismissal was appropriate. The claimant was told that once up to date OH advice was available a formal meeting would be arranged.
The claimant responded to Ms La Salle on 16 February 2018. Her letter raised the failure to follow OH advice on reasonable adjustments, and in particular the move to a different area, the ergonomic keyboard, the screen filter, and trigger points. The claimant complained that Mr Dalon had agreed that she could be moved from her current work area but she had not subsequently been moved and nor had she heard from Mr Dalon or his colleague Ms Esther Amara about that. Ms Pramang told us that she continued to raise the reasonable adjustments issue on the claimant’s behalf after this letter but there was no record of that and we do not accept it. In any event however, by the time of the attendance management meeting on 21 May 2018, those reasonable adjustments had not been progressed at all.
Referral for dismissal meeting
The claimant was informed in a letter from Ms LaSalle dated 1 March 2018 that a decision had been made to refer her case to Sharon Sauer, Decision Manager, to decide whether she should be dismissed or whether her sickness absence level could continue to be supported.
The claimant presented her first Employment Tribunal claim (2201583/2018) on 6 March 2018. This is argued to be a second protected act, (issue 16b), because it again raised complaints, amongst other things, of disability discrimination. The claimant met Dr Mirza of Health Management Ltd on 7 March 2018. An OH report dated 9 March 2018 was subsequently sent to Ms LaSalle on 11 April 2018. Dr Mirza noted that the claimant’s ‘perceptions [about her work situation] are important since they are clearly linked in medical terms to the symptoms that she is reporting’. Dr Mirza concluded: ‘From talking to Ms Mirikwe I think the main issue here exists within the employment and is not going to be particularly amenable to a medical approach. Once her perceived work-related concerns are addressed and resolved Ms Mirikwe can attempt a phased return back to work.’ He recommended a gradual return to full-time duties, perhaps starting with 50% to 75% of her workload and then gradually increasing to full-time duties within 4 to 6 weeks.
The 15 May 2018 meeting
A formal attendance meeting was scheduled with Sharon Sauer on 1 May 2018 but this was later adjourned to 15 May 2018. The claimant did not attend that meeting because at the time she was not well enough. She was represented at that hearing by Ms Pramang. The minutes record amongst other things that Ms Pramang told Ms Sauer that ‘every time BM is forced to attend a meeting this causes her a breakdown’. There was an issue about the claimant attending her workplace, Globe House, at this point in time. The meeting was adjourned.
Ms Sauer told us that she found the approach by Ms Pramang to be quite challenging at this meeting. We accept that she did so. Ms Pramang is a forthright representative who puts forward member’s cases passionately and forcefully. We accept that management could at times find her approach quite challenging. The law recognises that and provides protection to union reps who present as challenging.
Ms Pramang was reading from a script for much of the meeting. Ms Pramang argued that the failure to carry out the reasonable adjustments was the main reason preventing the claimant’s return to work. She also raised the lack of continuity of management as being a problem. Ms Sauer accepted in cross examination (see further below) that this might have been a problem. She also accepted that the reasonable adjustments were not recorded on the system, and a disability passport, which an employee should complete in case they changed line manager, was not being utilised.
Ms Sauer subsequently invited the claimant to a further formal attendance review meeting. It was proposed that the meeting take place at a more ‘acceptable’ venue ie not at Globe House.
We were referred to draft letters in the bundle dated 21 May 2018. It had been suggested by the claimant and Mr Alam that Ms Sauer came to the meeting having already decided to dismiss the claimant. That allegation was retracted by Mr Alam at the hearing, as he accepted that those draft letters were not written prior to 8 June meeting, as demonstrated by the fact that they referred to the claimant’s email about her visit to her GP, following that meeting. We accept that those drafts post-date the meeting.
Formal Attendance Review Meeting – 8 June 2018
The formal attendance review meeting took place on 8 June 2018 at Clive House. Present were the claimant, Ms Sauer, Mr Alam and Ms Fabusuyi (from HR). Prior to the meeting, Ms Sauer was provided with and considered all of the relevant OH reports.
104 There was a discussion at the meeting about the location of the claimant’s workstation. The minutes record that the claimant stated that around September 2017 there was a conversation with Mr Rahman that resulted in more lights being turned back on. The claimant denied that such a conversation took place. She stated that the lights had never been turned off. We preferred Ms Sauer’s evidence on this point. We find that there had been an attempt to switch the lights off at one stage but because other staff complained, the lights had to be turned back on. Mr Alam recalled Ms Sauer mentioning the lights being reviewed as it was causing health and safety issues for others. He suggested that they bring in external help to resolve this issue from a specialist Home Office team – see further below.
105 The minutes record the claimant as saying, when asked by Ms Sauer how her health was: ‘Not good at all’. The claimant said that what she actually said was that her health was ‘not bad at all’. Again, we prefer Ms Sauer’s evidence on this issue. We find that the claimant was still unwell at that point.
106 The minutes go on to say that when asked later how she felt about a return to work, the claimant said that she had ‘mixed feelings; the claimant said that she prayed [the meeting with her GP] would be positive. She would like to have the GP decide’ whether she was fit enough to attend work.
107 Mr Alam’s recollection of the meeting was that the claimant had indicated that she felt better. When asked about her fitness to return to work, she referred to the benefit of counselling, and that was the basis of her belief that she could return to work. The claimant wanted to check with her GP, and agreed to see her GP quickly, so a decision could then be made. The claimant was anxious about the meeting but did indicate that she was willing to come back to work within a reasonable timescale. We accept his evidence in relation to that.
108 As a general point, Mr Alam stated that in bullying and harassment cases, where a formal process is followed and the employee’s case is rejected, management should still work to try to repair working relationships, to enable the employee and their manager(s) to continue to work together. That, he said, is a responsibility of management. That is what he was trying to facilitate here.
109 He agreed that the issues in relation to the keyboard and screen filter were relatively minor issues. In relation to Mr Dalon’s email, there were a number of matters mentioned in that email which were not followed up and in particular, moving the claimant to a low stimulus area elsewhere. Help and advice was available from a specialist reasonable adjustments team within the Home Office. He was aware of a union member for whom the lighting issue had been resolved as a result of their intervention.
110 Ms Sauer accepted in cross examination that a stress risk assessment should have been carried out pursuant to paragraph 21 of the AMP but wasn’t. She accepted that no Return to Work plans were completed by Karen Barkley. Or at least if they were, there was no record of them. She also conceded that the ongoing screen filter issue could affect an employee’s morale and subsequently their productivity. 111 There was reference at the meeting to the claimant’s new line manager Helal Miah. The claimant mentioned her ‘suspicion’ that when she had a telephone conversation with him during which private medical issues were discussed, there were other people in the background listening in. She could hear people in the background during her telephone call. The notes record her as saying this had: ‘made me feel uncomfortable, I’m not sure if I can trust this person’. Mr Alam’s take on that issue was that it demonstrated to him a person who was personally cautious about coming back to work. Mr Alam saw his role in the meeting as being to argue that the claimant was somebody for whom there had been issues but who wanted to get back to work and who loves her job. She therefore needed to be supported properly, for example with the provision of a buddy, and regular meetings with a new line manager, in order to facilitate her return. He was willing to assist with that process.
112 As for the workplace adjustments, it was generally agreed that they could all be resolved on her return. Ms Sauer stated for example that none of the adjustments required were insurmountable. As we shall see in due course, Mr Frost agreed with that assessment. We find that the adjustments could indeed have been made.
113 Mr Alam’s view by the end of the meeting was that all of the reasonable adjustment issues could be resolved. He could not recall whether there was any discussion about a phased return, but the assumption would be that management would usually follow that advice, if OH recommended it. Management would rarely go against OH advice.
114 At the conclusion of the meeting it was agreed that the claimant would update Ms Sauer after her appointment with her GP on 11 June 2018.
Visit to GP and follow-up email
115 The claimant saw her GP on 11 June 2018. She said in her email the same day that her GP had confirmed that she was fit to return to work when her fit-note ran out on 4 July 2018. Her email stated: ‘I did see my doctor today as I promised. She advised that she will issue me with a fit for work certificate once the existing sick cert runs out as long as issues at work are resolved’. We find that what was meant by the words ‘as long as issues of work are resolved’ mainly related to the reasonable adjustment issues. The claimant stated in cross examination that she felt that the meeting with Ms Sauer had been positive, and that the issues would be resolved, in relation to both the adjustments, and mediation with her managers. She believed Ms Sauer was going to do something about it. She couldn’t enter into any such mediation while she was at home, only when she returned to work.
116 In an email from Mr Alam to Ms Sauer dated 13 June 2018 regarding the claimant’s return to work he confirmed that the GP had indicated that they were happy to issue a fit to return to work note following the expiry of the current note on 3 July 2018 which would mean Bridgette returning to work on 4 July 2018, in three weeks’ time. He continued: ‘I would also hope the positive support Bridgette has received through psychological therapy, as well as the employee assistance programme (EAP) will enable a successful return to work for her.’ The email also referred to a number of reasonable adjustments, namely the ergonomic keyboard, screen filter and office lighting. He continued: ‘Can I reiterate that I believe that building a positive relationship with her manager Helal presents a real opportunity to move things forward. I would also hope that you look into the possibility of a work buddy that could assist Bridgette return to work during the initial period. I would also suggest a phased return to work as per the OH report’.
117 Mr Alam gave evidence during cross examination that in the context of the claimant’s email, including her reference to a fit note, the ‘issues to be resolved’ prior to her return to work were the reasonable adjustments, which had been agreed. He believed that the GP would set out the adjustments required in the fit note. The April 2018 OH report made clear that there were issues with the claimant’s perception about how she was being treated in the workplace. Those issues needed to be resolved in the longer term and he set out in his email how he proposed that they be resolved. However, they could not be resolved whilst the claimant remained off work and we find that is not what she meant in her email.
Decision to dismiss - 19 June 2018
118 Following the receipt of those emails, and the meeting preceding them, Ms Sauer decided to dismiss the claimant. This was confirmed in a letter dated 19 June 2018. The claimant was dismissed with a payment in lieu of notice and 100% efficiency compensation under the Civil Service Compensation Scheme (CSCS) for being dismissed for unsatisfactory attendance.
119 The decision letter stated, amongst other things: ‘...Your representations regarding how you feel you have been treated by the organisation and the fact that you feel this is a contributor to your current ill-health. I was particularly concerned that you felt unable to attend the workplace for our meeting as this may be an indicator that a return to work is not forthcoming. We discussed the talking therapy and medication you have been undertaking. You stated that this was helping you, however you are unable to provide me with details of how successful this had been or what the prognosis for the treatment would be going forward. I also considered your recent email regarding the GP’s appointment on 11 June 2018 and fit note dated until 4 July 2018 and that despite agreeing that we have resolved the workplace issues which you say are preventing you from returning to work, based on the information you provide in your email, you and your GP still do not feel you will be fit enough to return for some weeks at least. I further noted that you found it distressing to discuss details regarding the workplace in the meeting and have concerns that this again outlines that you are unable, in the near future, to return to work as you are not fit enough to do so. I have also considered that should a return to work occur, you will not be well enough to sustain a return or provide ongoing regular and effective service in light of these concerns.’
120 The letter referred to the reasonable adjustments issues and confirmed that it should be possible for those to be resolved. The letter goes on however ‘based on your comments in the meeting, [I] have concerns that you may not currently be receptive to other issues in the workplace, such as performance management … I have also noted and been concerned regarding your level of willingness to engage with the managing attendance process and the previous meeting [I] have tried to conduct with you …. I have decided that your employment with the Home Office must be terminated because you have been unable to confirm that you can return to work within a timescale that I consider reasonable. I have sincere concerns, not only around your current health, well-being and fitness for work, but also as previously stated, around your ability to sustain a satisfactory level of attendance in accordance with Home Office attendance standards in the future’.
121 Ms Sauer told us and we accept that the FWAW did not affect her decision. She did however take account of the overall level of absence. The perceived issues between the claimant and the management team were a significant factor in her decision to dismiss. Such issues were ‘a serious concern’ for her. The meeting took place outside her usual workplace; the claimant was distressed and had to take a break. This did not ‘instil her with confidence’. She did not feel a return to work was ‘likely’.
122 A key issue was whether the claimant could provide regular and effective service. In deciding this issue, she looked at what had happened but also at what was likely to happen in the future. She told us and we accept that the phrase ‘regular and effective service’ is a commonly used term within HMPO.
123 As for the one to one meetings, Ms Sauer told us and again we accept that the respondent had started to change its process so these meetings were more about employee well-being. Performance issues could still be discussed but the meetings should start from the employee’s wellbeing. Ms Sauer conceded that a manager was possibly not doing their job properly if they did not hold one to one meetings with staff regularly. Mrs Sauer was not aware of the wider collective issues or the collective grievance etc. It did not form part of her decision.
Appeal against dismissal
124 The claimant appealed the decision to dismiss her on 2 July 2018. Amongst other things, she stated the following, by reference to the OH report the issues not particularly amenable to a medical approach. “The reasons for my illness and my later panic attacks at Globe House are entirely related to how I feel I was treated by HMPO management in relation to my health and the failure to make reasonable adjustment for my condition (migraines). I did not have a mental health condition prior to this.”
125 Her fit-note expired on 3 July 2018. The claimant informed us that that was not renewed, but we note from pages 704/5 of the bundle, that the GP notes record that a further fit note was issued for the period 4 July to 31 August 2018. The claimant had of course been dismissed by then.
126 An appeal hearing was scheduled for 30 July 2018 but had to be rearranged because the claimant’s union representative Mr Alam was not available. The appeal hearing took place on 6 September 2018. Present were the claimant, Mr Alam, Mr Danny Frost who chaired the hearing, Ms Carol Hedger, case worker and Ms Joanne Bateman, notetaker.
127 There is reference to the claimant not wanting to go to Globe House for the appeal hearing. We accept this was because the claimant had been sacked. She did not want to attend Globe House and risk seeing her colleagues as she felt ashamed.
128 The appeal notes record (page 660) that the claimant told Mr Frost that ‘she was in a better place than she had ever been; she said she was stronger, resilient, had finished counselling and both her GP and therapist had said she was ready to return. She added that 6/7 months ago, been through hell, but now she is much better… since the end of June/July, might be 85% ready; today I feel 99% ready; at the point of dismissal I was ready... I’m in a better place now’.
129 The difficulties created by the claimant being near to her line manager, which resulted in her being regularly disturbed by colleagues coming up and asking the line manager questions was discussed. It comes across as a negative issue in the minutes, see page 663. That aspect of the minutes was subject to suggested amendments to the appeal notes provided by Mr Alam, after they had been sent to him and the claimant. The suggested correction clarified that there was no general problem about the claimant being near to her manager: ‘It was only an issue due to the noise of the printers and staff constantly approaching the manager for advice’. That issue was resolvable by making reasonable adjustments.
130 On page 661 is a reference to wider issues within Globe House. The claimant believed that managers were not supporting staff. It had, she said, been voted the second worst place to work in the Home Office. Mr Alam also informed us that some of his colleagues were dealing with a wider issue in relation to the Globe House HMPO office. Two group executive members had met with groups of members in that office and worked with Bob King who was in charge of the London office, in order to resolve the issues between staff and management. We were informed that a number of changes were made, and some people were moved. He said that this was a good example of the union and managers working together in order to bring about positive change.
131 There was a discussion about a possible phased return. This was initially raised by Mr Alam. Mr Frost is recorded as saying: ‘We wouldn’t look at a phased return, as it’s protracting an absence further; you would have to come back to work full-time. Bridgette asked would that be with occupational health support. Danny said with regards to the reduced hour aspect in your request, yes it’s difficult at first when returning, but you work your way through it. [Mr Alam] said that was raised through the managing attendance process. Danny said not a consideration re phased return. Pav agreed, saying that a phased return would be contradictory’.
132 Mr Alam stated in his witness statement, that he withdrew the request for a phased return, due to Mr Frost’s opposition to it, as demonstrated above. Mr Frost was questioned about that during the hearing. Despite being taken to the notes, which quite clearly record him refusing a phased return, he said that he could not understand what Mr Alam was saying. He suggested that the minutes were not accurate; what he was trying to do, he said, was test the authenticity of the claimant’s argument that she could return to work immediately. He told us that a phased return contradicted that. We return to this in our conclusions as it is of some significance.
133 There was also reference by Mr Frost to his concern that the claimant would, if she returned to Globe House, come across her previous managers. In fact, Ms LaSalle was no longer working for the respondent, Ms Barkley was absent on long-term sickness absence, and Mr Dalon had moved to the eighth floor.
134 Mr Frost confirmed that it was mentioned at the appeal that the management culture was being looked into by Bob King. Bob King is Mr Frost’s line manager. Mr Frost did not speak to him about the wider issues.
The Appeal Decision Letter - 11 September 2018 135 The claimant’s appeal against dismissal was rejected by Mr Frost in a letter dated 11 September 2018. Mr Alam conceded that the appeal was rejected for genuine reasons although he did of course disagree with them.
136 Amongst other things, Mr Frost stated: ‘Although there was some evidence provided that you would be able to return to work in the immediate future should the decision have been reinstatement, my concern relates to the lack of assurance given that you would be able to sustain full and effective attendance thereafter. Despite stating that you have felt much better since June/July time, you are seemingly unable to enter Globe House to attend a previously scheduled appeal hearing at the end of July, citing that such attendance was too stressful for you, although the meeting had been arranged on the eighth floor… I asked you at the hearing what has changed since that time to give me assurance that you will be able to return immediately. Your response was that you felt that there were rumours surrounding you in the office that would prevent you attending a hearing there at that time. I note that you have sought counselling on this issue and at the appeal hearing you felt this was no one else’s business. This does still however suggest to me that your ability to return and remain at work was not sufficiently assured. I should note that despite this advice from your counsellor, the meeting was still held outside of Globe House.’
137 He confirmed that in his view the lighting and noise issues could be addressed relatively easily but nevertheless continued: ‘I felt that your concern to being seated close to your manager, whilst at the same time requesting additional support was contradictory. I had hoped to hear more from you about how you would manage your own condition and work with your manager on supporting that plan, however I felt that you presented a view that your condition was for your manager to address rather than yourself, and that throughout your absence you had not been sufficiently proactive and taken every action possible to enable the earliest possible return to work. This again provides little assurance of continued attendance in future, had you been reinstated … It was stated at the meeting, but later withdrawn that you would be seeking a three-week phased return to work, although there was no medical evidence to support this. I did note however that such an action would only protract the absence further, negating your claim that you are fit to return to effective and continued employment. Overall therefore the picture of evidence relating to your imminent and sustained return was weaker than I was hoping to see’.
138 The FWAW played no part in Mr Frost’s decision. Her sickness absence overall was a factor. His decision was based on the view that if the claimant came back to work, he was not sure she would remain at work. Mr Frost told us he thought that considerable efforts had been made to help the claimant return but those attempts failed. When asked if he should not have given the claimant a chance to show she could return and give effective service he said that HMPO could not ‘continue to give her an opportunity’, (although we note that there had not in fact been any point since November 2017 when the claimant had been in a position to return). He had concerns that the claimant felt there were rumours abounding about her, due to her unwillingness to meet at Globe House. He used that to form the view that her ability to remain at work was not sufficiently assured. He could not comment on her perception, his view was that if she was concerned what people thought, what would change in future?
139 A further Employment Tribunal claim was submitted on 18 September 2018, arising out of the claimant’s dismissal.
Civil Service Compensation Scheme Payment
140 The claimant subsequently received a full Civil Service Compensation Scheme payment (i.e. 100 per cent). She complains that deductions were made from that unlawfully, and/or that there was a breach of contract because she did not receive what she was contractually entitled to. By the time of the hearing, it had been conceded by the claimant that she was not in a position to query the amounts that were alleged to have been overpaid to her, or the actual amounts that were deducted.
141 The respondent’s case was that she had, during her employment, been overpaid to the tune of over £11,000. She did not receive her pay in October 2018, and approximately £6,000 was withheld from the CSCS payment. The case proceeded during the hearing on the basis that the sole issue to be determined was whether or not the fact that the deductions had been made gross, but the sums had been paid to the claimant net, meant that there had been an unauthorised deduction of wages and/or a breach of contract. The Home Office overpayment recovery process document is within the bundle of documents. Paragraph 11 on page 175 confirms that the balance of any outstanding debts will be deducted from the final leaver’s salary and any other payments due such as untaken leave payments, pay award arrears or compensation payments. Employees are to be notified in advance of any such final deductions.
The Law
Time limits
142 The relevant time-limit in a discrimination case is set out at section 123(1) Equality Act 2010. The tribunal is usually only able to hear a claim if it is presented within three months of the act complained about, subject to the extension of any time limit as a result of ACAS early conciliation. By subsection (3), conduct extending over a period is to be treated as done at the end of the period. If the claim is presented outside the primary limitation period of three months, the tribunal may still consider the claim if it was brought within such other period as the employment tribunal thinks ‘just and equitable’.
Unfair dismissal
143 The law relating to unfair dismissal is set out in S.98 of the Employment Rights Act 1996 (ERA). In order to show that a dismissal is fair, an employer needs to prove that the dismissal was for a potentially fair reason (S.98(1) and (2) ERA). A tribunal must then consider the question of fairness, by reference to the matters set out in section 98(4) ERA which states: Where the employer has fulfilled the requirements of subsection (1), the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer)—
(a) depends on whether in the circumstances (including the size and administrative resources of the employer’s undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee, and
(b) shall be determined in accordance with equity and the substantial merits of the case.
144 The function of the Industrial Tribunal, as an industrial jury, is to determine whether in the circumstances of each particular case, the decision to dismiss the employee fell within the band of reasonable responses which a reasonable employer might have adopted. If the dismissal falls within the band the dismissal is fair: if the dismissal falls outside the band it is unfair. Further, in looking at whether dismissal was an appropriate sanction, the question is not whether some lesser sanction would, in the tribunal’s view, have been appropriate, but rather whether dismissal was within the band of reasonable responses that an employer could reasonably make in the circumstances.
Disability
145 A person has a disability if she has a mental or physical impairment which is long term (i.e. has lasted 12 months or more or is likely to do so); and has a substantial adverse effect on her ability to carry out normal day to day activities (S.6 and Schedule 1 Equality Act 2010). The term ‘normal day to day activities’ includes the ability to participate in professional working life.
Burden of proof
146 Under s136, if there are facts from which a tribunal could decide, in the absence of any other explanation, that person A has contravened the provision concerned, the tribunal must hold that the contravention occurred, unless A can show that he or she did not contravene the provision.
147 Guidelines on the burden of proof were set out by the Court of Appeal in Igen Ltd v Wong [2005] EWCA Civ 142; [2005] IRLR 258. The tribunal can consider the respondents’ explanation for the alleged discrimination in determining whether the claimant has established a prima facie case so as to shift the burden of proof. (Laing v Manchester City Council and others [2006] IRLR 748; Madarassy v Nomura International plc [2007] IRLR 246, CA.)
148 The Court of Appeal in Madarassy, a case brought under the Sex Discrimination Act 1975, held that the burden of proof does not shift to the employer simply on the claimant establishing a difference in status (eg sex) and a difference in treatment. LJ Mummery stated at paragraph 56:
Those bare facts only indicate a possibility of discrimination. They are not, without more, sufficient material from which a tribunal ‘could conclude’ that on the balance of probabilities, the respondent had committed an unlawful act of discrimination.' Further, it is important to recognise the limits of the burden of proof provisions. As Lord Hope stated in Hewage v Grampian Health Board [2012] IRLR 870 at para 32:
They will require careful attention where there is room for doubt as to the facts necessary to establish discrimination. But they have nothing to offer where the tribunal is in a position to make positive findings on the evidence one way or the other.
Discrimination arising from disability
Section 15 Equality Act 2010 reads:
(1) A person (A) discriminates against a disabled person (B) if—
(a) A treats B unfavourably because of something arising in consequence of B's disability, and
(b) A cannot show that the treatment is a proportionate means of achieving a legitimate aim.
(2) Subsection (1) does not apply if A shows that A did not know, and could not reasonably have been expected to know, that B had the disability.
In a disability discrimination claim under section 15, an employment tribunal must make findings in relation to the following:
151.1 The contravention of section 39 of the Equality Act relied on – in this case either section 39(2)(c) – dismissal, or (d) - detriment.
151.2 The contravention relied on by the employee must amount to unfavourable treatment.
151.3 It must be “something arising in consequence of disability”; for example, disability related sickness absence.
151.4 The unfavourable treatment must be because of something arising in consequence of disability.
151.5 If unfavourable treatment is shown to arise for that reason, the tribunal must consider the issue of justification, that is whether the employer can show the treatment was “a proportionate means of achieving a legitimate aim”.
151.6 In addition, the employee must show that the employer knew, or could reasonably have been expected to know, that the employee or applicant had the disability relied on. [Note, knowledge has not been an issue in this case].
See the decisions of the EAT in T-Systems Ltd v Lewis UKEAT0042/15 and Pnaiser v NHS England [2016] IRLR 170 (EAT).
As for objective justification, an employer must demonstrate that any unfavourable treatment that is found to be linked to the disability must be objectively justified. In other words, that the treatment is a proportionate means of achieving a legitimate aim.
153 According to Harvey’s encyclopaedia of Employment Law \[Division L.3.A(4)(d), at paragraph 377.01\]: ‘As stated expressly in the EAT judgment in City of York Council v Grosset UKEAT/0015/16 (1 November 2016, unreported), the test of justification is an objective one to be applied by the tribunal; therefore while keeping the respondent's 'workplace practices and business considerations' firmly at the centre of its reasoning, the ET was nevertheless acting permissibly in reaching a different conclusion to the respondent, taking into account medical evidence available for the first time before the ET. The Court of Appeal in Grosset ([2018] EWCA Civ 1105, [2018] IRLR 746) upheld this reasoning, underlining that 'the test under s 15(1)(b) EqA is an objective one according to which the ET must make its own assessment'.
154 Harvey continues at paragraph 377.03: ‘O’Brien v Bolton St Catherine’s Academy [2017] EWCA Civ 145, [2017] IRLR 547 involved the dismissal of a teacher due to her poor attendance record. She had a long period of absence following being assaulted at school. By the time of her appeal against dismissal her GP had signed a 'fit to work' certificate, and her therapist had indicated that she would return to her 'pre trauma functioning' within 10–12 sessions. The appeal decision makers were sceptical as to whether this was likely. Ms O’Brien succeeded in both her unfair dismissal and s 15 claims. The EAT upheld an appeal by the school, but the Court of Appeal restored the decision of the ET. In relation to the discrimination claim, the dismissal was undoubtedly unfavourable treatment arising in consequence of the disability-related absence, and the ET had been entitled to accept that the school had a legitimate aim, namely 'the efficient running of the school, the reduction of costs and the need to provide a good standard of teaching'. However, the ET did not find the dismissal to be proportionate in circumstances where there had not been specific evidence as to the effect that Ms O’Brien's absence was having on the school and where, in light of the positive medical evidence, the school ought to have 'waited a little longer'.
155 'The CA did not consider the test of asking whether the employer's response was 'reasonable' for the purposes of ERA 1996 s 98(4) when determining the unfair dismissal claim to be, in substance, markedly different from the test of considering whether the treatment was 'proportionate' and therefore justified when applying EqA 2010 s 15. Underhill LJ remarked (at [53]): 'The law is complicated enough without parties and tribunals having routinely to judge the dismissal of such an employee by one standard for the purpose of an unfair dismissal claim and by a different standard for the purpose of discrimination law.' However, Sales LJ in City of York Council v Grosset [2018] EWCA Civ 1105, [2018] IRLR 746 held at [55] that 'Underhill LJ was addressing his remarks to the particular facts of that case, and was not seeking to lay down any general proposition that the test under s 15(1)(b) EqA and the test for unfair dismissal are the same. No doubt in some fact situations they may have similar effect, as Underhill LJ was prepared to accept in O’Brien. But generally the tests are plainly distinct, as emphasised in Homer \[v Chief Constable of West Yorkshire Police [2012] UKSC 15, [2012] IRLR 601\].' Reasonable adjustments
156 Section 39(5) of the Equality Act 2010 imposes a duty to make reasonable adjustments on an employer.
157 Section 20 provides that where a provision, criterion or practice (a PCP) applied by or on behalf of an employer, places the disabled person concerned at a substantial disadvantage in comparison with persons who are not disabled, it is the duty of the employer to take such steps as it is reasonable to have to take in order to avoid the disadvantage. The same duty arises where the substantial disadvantage arises from a failure to provide an auxiliary aid or a physical feature of premises.
158 Section 21 of the Equality Act provides that an employer discriminates against a disabled person if it fails to comply with a duty to make reasonable adjustments. This duty necessarily involves the disabled person being more favourably treated in recognition of their special needs.
159 In Environment Agency v Rowan 2008 ICR 218 and General Dynamics Information Technology Ltd v Carranza 2015 IRLR 4, the EAT gave general guidance on the approach to be taken in the reasonable adjustment claims. A tribunal must first identify:
(1) the PCP applied by or on behalf of the employer;
(2) the identity of non-disabled comparators; and
(3) the nature and extent of the substantial disadvantage suffered by the claimant in comparison with those comparators.
Once these matters have been identified then the Tribunal will be able to assess the likelihood of adjustments alleviating those disadvantages identified.
160 The question however is whether the employer failed to make reasonable adjustments as a question of fact, not whether it simply failed to consider making any. The latter is not in itself a breach of s 20 - Tarbuck v Sainsbury Supermarkets Ltd \[2006 IRLR 664, EAT.
161 The test of reasonableness imports an objective standard. The Tribunal must examine the issue not just from the perspective of the Claimant but also consider wider implications including the operational objectives of the employer.
162 The Statutory Code of Practice on Employment 2011 published by the Equalities and Human Rights Commission contains guidance in Chapter 6 on the duty to make reasonable adjustments. Paragraph 6.28 sets out some of the factors which might be considered in determining whether it is reasonable for an employer to have to take a particular step in order to comply with the duty to make reasonable adjustments. These include whether taking the step would be effective in preventing the substantial disadvantage, the practicability of the step, the cost to the employer and the extent of the employer’s financial and other resources.
163 As for knowledge, for the S.20 EQuA duty to apply, an employer must have actual or constructive knowledge both of the disability and of the disadvantage which is said to arise from it (EQuA para 20, Schedule 8). Again, we note that knowledge has not been an issue in this case.
Victimisation
164 In order to succeed in a victimisation claim, a claimant must demonstrate that she did a protected act. This includes making a complaint of discrimination covered by the Equality Act. A claimant must then show that she was subjected to unfavourable treatment because of the protected act(s) (S.27 EQuA).
Breach of contract
165 A worker is entitled to be paid the amounts agreed in her contract with her employer.
Unauthorised deduction of wages
166 A worker is entitled to be paid the amounts payable to her, whether under the terms of her contract with her employer, ‘or otherwise’ (such as under statute, for example, statutory sick pay or holiday pay – see S.23 Employment Rights Act 1996)). A worker’s wages may include allowances, such as London-weighting and shift allowances (S.27 ERA).
Conclusions
167 We now apply the law to the facts to determine the issues. If we do not repeat every single fact, it is in the interests of keeping these reasons to a manageable length.
168 Before considering each of the legal and factual issues in the case, we deal with the question of credibility. We were invited by Mr Green to find that the evidence presented by and on behalf of the claimant was not credible, whereas that presented on behalf of the respondent was. We found matters to be somewhat more nuanced than that. In coming to our findings of fact, we have looked at the evidence presented in relation to each of the relevant disputed facts in turn. We have set out whose evidence we have preferred, and why, at the appropriate points.
169 As far as the claimant is concerned, we accept that she was not the most reliable of witnesses and that what she said often contradicted what was set out in documents. However, that did not mean that her concerns about the way she was being managed were without foundation, a point we return to in some detail below. As far as Mr Alam is concerned, we found him to be a believable and reliable witness, who was willing to make concessions when appropriate. For example, in relation to the 21 May 2018 draft dismissal letter. He appeared to us to be an experienced trade union representative who was genuinely trying to act as a bridge between the claimant and management at the dismissal and the appeal hearings, in order to facilitate her return to the workplace.
170 As for Ms Pramang, she is clearly passionate about the work that she does as a union representative, and no doubt her style often brings her into conflict with management. As already stated, she is protected as a union representative in relation to the way she carries out her duties. However, she would perhaps sometimes do better for union members if she adopted a less combative style. We found Ms Pramang to be a reasonable witness in relation to policies such as the AMP which she clearly had a good grasp of, together with a clear idea as to how that should be applied and interpreted. Whilst we did not always agree with her, the discussion in relation to paragraph 61 of the AMP is a good example of where she was doing her best to further the claimant’s interests. Mr Green rightly conceded that paragraph 61 of the procedure is not as well drafted as it could be. In those circumstances, Ms Pramang cannot be criticised for trying to exploit the ambiguity in paragraph 61 to the claimant’s advantage. It is worth saying that the tribunal spent some time working out what it meant and how it should be applied to her case.
171 As for Ms Sauer, we found her to be a believable and genuine witness. However, we do not consider that she always came to a reasonable conclusion in relation to the matters before her. As for Mr Frost, it should be clear from the facts found above and some of the comments below, that we found his evidence at times to be quite unconvincing, the most notable example of which was his approach to the question of a phased return.
172 In short, whilst we do of course accept that Mr Green was entitled to put forward the submission he did in relation to credibility, we respectfully disagree with him for the reasons set out above. This is not a case where we consider that the issue of credibility was nearly as black and white as Mr Green suggested.
Unfair dismissal (Issues 1 to 4)
Potentially fair reason (Issue 1)
173 The first question in any unfair dismissal claim is whether there was a potentially fair reason for the dismissal. Mr Walker argues that this was not really a capability dismissal, it was a conduct dismissal and/or a dismissal for some other substantial reason. He was referring to the respondent’s expressed concerns about whether the claimant would provide effective service and whether she would be prepared to be managed under for example the attendance management procedure and/or performance management procedure in future. He argued in his submissions, paragraph 13, that the dismissal was because of her disability or due to something arising from her disabilities. We note in passing that there does not appear to have been any suggestion in the list of issues that the claimant was pursuing a direct disability discrimination claim. In any event, it would not have succeeded.
174 We conclude that the dismissal was for a potentially fair reason, namely, capability. Mr Alam conceded, rightly in our view, that both Ms Sauer and Mr Frost genuinely believed that they made their decisions due to their beliefs about the claimant’s ability to return to work within a reasonable timeframe, and thereafter to sustain her attendance at work. Such reasons relate to capability, which includes considerations of an employee’s health and how that might impact on their attendance at work. They did not think she was well enough either to return to work in a reasonable period and/or to sustain her attendance at work thereafter.
175 We did have some concerns about Mr Frost’s reference to ‘management intervention time’ in his evidence before us. He did however clarify that what he meant by that was the amount of time that line managers were spending in managing for example, attendance meetings, and the writing up of notes afterwards by notetakers and trade union representatives. He also said that when members of staff were off work, their manager could end up doing as much work if not more work because they had to manage the work of the person who was absent.
176 It was part of the claimant’s pleaded case that her dismissal was because of her grievance and/or because of the first Employment Tribunal claim, both being protected acts. There was not any convincing evidence put before us to suggest that either of those protected acts had any influence on the decisions of Ms Sauer and Mr Frost. We conclude that they did not. The reason for dismissal was capability.
Fairness of dismissal (Issues 2 to 4)
177 We were asked to assess the question of the fairness of the dismissal by reference, in part, to issues 3 a. to e. We consider briefly each of these in turn.
177.1 a. Did R adopt a fair procedure, particularly its Attendance Management Policy and Procedures. There were issues in relation to the application of the AMP by Ms Barkley. We accept however Ms Sauer’s and Mr Frost’s evidence that the FWA did not affect their decision. The dismissal hearing was rearranged by Ms Sauer on two occasions and following the meeting at which the claimant could not be present in May 2018, she invited the claimant to a meeting, which she was subsequently able to attend. The appeal hearing was also rearranged because of Mr Alam’s unavailability for the first proposed appeal hearing date. In terms of the procedure adopted therefore, we consider that it was applied correctly, and the procedure itself was fair, at the dismissal and appeal hearings.
177.2 b. Consider OH advice and recommendations. It was clear that by the time of the dismissal and the appeal hearings, the respondent and the claimant were agreed that the adjustments that were outstanding could be made. However, that advice had not been followed in full from the date of the 2 October 2017 OH report, up until the June 2018 meeting. Mr Dalon had agreed a number of adjustments but had not followed up in relation to the screen filter and keyboard, and more significantly, the move to a different work area. He did however only have approximately two weeks between the meeting on 6 November 2017 (and his follow-up email of 7 November) to arrange that, before the claimant was absent due to illness.
177.3 Mr Dalon having agreed to the move in principle, on 1 February 2018, Ms LaSalle wrote to the claimant, in quite trenchant terms, about the outstanding adjustments. She made it clear that a number of them would not be carried out and in particular, the move to a different work area, any adjustment to trigger points, the provision of an ergonomic keyboard and the provision of a screen filter. The claimant complained about that in her letter of 16 February 2018 but there was no further communication with her about the adjustments between her writing that letter and the dismissal meeting on the 8 June. We conclude that the failure to agree those adjustments was an impediment to her return between February and June 2018. 177.4 c. Consider recommended reasonable adjustments before referring the Claimant's circumstances to a Decision Maker Hearing. See b. above. There was some dispute between Mr Walker and Mr Green as to what Ms Sauer had said in her evidence before the Employment Tribunal as to whether or not it was reasonably common to move to a dismissal hearing before the 12 months mandatory consideration point. All three members of the panel have a note to the effect that her evidence was that it was reasonably common to do so, in line with Mr Green's note.
177.5 d. Refer the Claimant back to OH where there were concerns, in accordance with the Respondent's Policy and Best Practice. Again, see b. above.
177.6 e. Taking into account mitigating circumstances, such as:
177.6.1 i. the Claimant's 17 years' service and absence record prior to 2016. The claimant did have relatively lengthy service, which is a factor in her favour. Ultimately however, whatever her service, the respondent would have been entitled to dismiss her at some point if her absence history did not improve. On its own, it would not have affected the fairness of the decision but it is a relevant factor. As for her absence record prior to 2016, it is true that during for example the period of four years prior to her workplace accident on 14 October 2016, her absence history was much better. It then deteriorated following the accident at work on 14 October 2016, and the various issues which arose due to the way that she was, or perceived she was being mismanaged in relation to attendance and performance management and the outstanding reasonable adjustments. We return to those matters below.
177.6.2 ii. the Claimant's accident at work on 14 October 2016. It is certainly the case, as noted above, that the claimant's absence record was much better prior to her accident. Her employer was entitled in principle however to look at the absence record after that date, in considering the question as to whether or not she was likely to be able to maintain effective attendance in future. Again, that is an issue we return to below.
177.6.3 iii. that details of performance concerns had not been raised with the Claimant. We can understand why, in the pleaded case, this was put forward. As noted above, it was not until the fourth day of the hearing, when Ms Pramang gave evidence, that the performance warning which Mr Dalon had given to the claimant in about November 2017 was put before us. Performance concerns were therefore raised with her. There is however an issue about those matters not being raised with her at the time that they occurred to give her a chance to improve. Again, this is something we consider further below.
177.6.4 iv. adjustments recommended by OH on 22 December 2014, 2 October 2017, 9 March and 11 April 2018. See b. above.
177.6.5 v. the Claimant's grievance dated 27 November 2017; as stated above, we do not consider that the claimant's grievance was taken into account by the respondent in deciding whether or not to dismiss. We return below to the concerns of the claimant in relation to the way that she perceived she was being managed, which were raised in her grievance.
177.6.6 vi. the Claimant's readiness to return to work from 4 July 2018. It was clear that at the meeting on 8 June 2018, the claimant wanted to speak to her GP before confirming when she would be able to return to work. Having done so, she gave a fairly strong indication that she would indeed be returning on 4 July 2018. The reference to the 'issues at work being resolved' was something which Ms Sauer took into account, and we consider that further in our general discussion below.
177.6.7 vii. the subjectivity of the Decision Maker's determination of what is considered a reasonable timescale for returning to work. The claimant was indicating that she could return to work within 4 weeks of the 8 June meeting. We consider that was a reasonable timescale. The question is whether it was reasonable for Ms Sauer to conclude that a return was unlikely in such a timescale.
178 In considering the reasonableness or otherwise of the dismissal below, we remind ourselves of three matters. First, the importance of not substituting our own decision for that of the employer. Second, the words of the statute. Third, that the band of reasonable responses test is not a perversity test.
The claimant's concerns about her work situation
179 We have considered a number of factors affecting the claimant’s perception of her workplace situation. These include the following:
179.1 The 2014 occupational health report recommended that a screen filter be provided. The 28 April 2015 report noted that she had one but it was chipped and held on with tape. The 2016 report repeated the same. The situation had not been resolved prior to her dismissal. On its own, this is relatively minor. But it could and did affect the claimant’s morale.
179.2 In 2015, the claimant was suspended. On her return, she was moved to a new team and from her workstation, to another desk. This happened without any consultation with her. Any move should have been discussed with her beforehand. She was not happy at her new workstation and was still unhappy at the time of her dismissal.
179.3 The October 2016 accident occurred in a chair that occupational health had recommended be changed for one which was more suitable for her. It is not necessary for us to make any finding as to whether or not that chair caused the accident. The chair had not been replaced as recommended, and that was the chair the claimant had the accident in.
179.4 Ms Barkley failed to carry out return to work meetings as required under the AMP. There was also a lack of regular one-to-one meetings. Those that did take place concentrated on the claimant’s performance, rather than them being a balanced discussion, starting from the employee’s perspective.
179.5 As for the FWAW, this arose in the context of sickness absence linked, at least in part, to the accident in a chair which should have been replaced. The subsequent migraines were linked at least partially to that accident.
179.6 Following the meeting with Ms Barkley on 28 July 2017 after which Ms Barkley agreed to hold a further meeting when the OH reports were available. There was no further meeting with her, as required by the AMP, prior to the FWA being issued. That was a serious breach of the policy. The claimant was being held to account for breaches of policy but her manager was not.
179.7 The September 2016 OH report was prepared without any discussion with the claimant or any meeting with her.
179.8 Despite the claimant being off with a stress-related illness from 27 November 2017 onwards, no stress risk assessment was carried out. Even though she was off sick, that did not make the carrying out of a stress risk assessment insurmountable. It could have been conducted over the telephone or after the January/February meetings. There was no attempt to carry one out.
179.9 Finally, the claimant was given a performance warning in November 2017, in relation to matters which had not been raised with her at the time. Had the procedures been properly followed, those issues would have been raised earlier. The claimant would then have had the opportunity to remedy them, which may have resulted in no formal proceedings being taken against her.
180 In the experience of the members of the tribunal, the above is an exceptional list of matters which about which the claimant reasonably felt aggrieved. When it came to the decision to dismiss, and the decision on the appeal, neither Ms Sauer or Mr Frost took these matters into account or attempted to consider the matter from the claimant’s perspective at all. It was in our view outside the range or reasonable responses in the circumstances of this case for them not to do so. They did of course as managers have a right to manage; but proper and effective management means being able to consider matters from the employee’s perspective, as well as from the employer’s. Instead, they appeared to have simply viewed her as a ‘difficult’ employee, without adequately considering why she might be being ‘difficult’.
181 Ms Sauer specifically confirmed that the perceived issues between the claimant and the management team were a significant factor in her decision to dismiss. As is clear from the above however, those ‘perceptions’ were based in reality. There was an exceptional number of matters affecting the claimant’s perception of her work situation and giving rise to an understandable sense of grievance. Ultimately, unless she was able to put those behind her on return to work, her continuing employment was under threat. But in judging the fairness of the decision to dismiss in June 2019, in our view they tip the balance in favour of the claimant and the dismissal decision outside the reasonable responses range.
182 The claimant could have returned on a stage two final written warning, which would have meant it was relatively easy to bring matters to a head, were she to be absent for short periods on a regular but sporadic basis following her return, and/or if she were she to take another lengthy period of sickness absence thereafter. We do of course recognise that it is not for us to substitute our view for the employer’s by simply saying that the employer should have adopted that alternative instead of dismissing the claimant. We are however bound to consider whether, in the light of that clear alternative, the decision to dismiss the claimant at this time was outside the range of reasonable responses. We find that it was.
183 Further, Ms Sauer did not sufficiently appreciate that the reason for the claimant’s absence from November 2017 was anxiety and depression. That illness, which is a disability, was going to colour the way that the claimant saw matters, and perceived management issues. Ms Sauer states in her decision letter that the claimant had been unable to provide any detail about how successful the talking therapy had been and about her progress. But after the meeting the claimant gave a clear indication that she was willing to return on 4 July and that her GP would give her a fit note for that date, subject to the workplace issues being resolved. The fact that the claimant found it distressing to discuss details about workplace issues, was only to be expected, given the nature of her illness. These points have more force, given that it is accepted that the claimant by this stage had a mental health disability too. They are also relevant circumstances against which to judge the fairness of the decision to dismiss.
184 Ms Sauer refers in her decision letter to the claimant’s failure to engage in the AMP. But in doing so, there was no recognition of the failings of Ms Barkley, in relation to that process. Ms Barkley’s failings were significant. Similarly, there wasn’t any acknowledgement of the somewhat trenchant rejection by Ms LaSalle of the adjustments that remained outstanding and which she was refusing to make, prior to the claimant being able to return to work and the affect that had on the claimant. That refusal effectively put a block on the claimant’s return to work.
185 As for the conclusion that the claimant was ‘unable to confirm that [she could] return to work within a timescale that I consider reasonable’, the claimant had indicated that she should be fit to return to work within 4 weeks of that meeting having taken place. By the date of the decision letter, that date was just 15 days away. That was a reasonable timescale. Ms Sauer’s conclusion that it was not was unreasonable.
186 Ms Sauer also appeared to believe that the reference in the GP’s email to workplace issues ‘being resolved’ before the claimant could return to work, meant that unless the claimant’s concerns about the way she perceived she was being treated by management were resolved, as well as the reasonable adjustments issues, she would not be able to return. We conclude that was not a reasonable assumption for her to hold. Clearly, the management issues could only be resolved after the claimant had returned to work. That was obvious to Mr Alam, in view of what was discussed at the 8 June meeting. He made clear his willingness to engage with management, including Ms Sauer, in order to facilitate the claimant’s return to work. It was unreasonable to assume that the claimant would not return to work by the 4 July, for this reason.
187 Finally, we consider Ms Sauer’s conclusion that the claimant would not be able to maintain effective service. There was clearly a question mark about that. Had management acted reasonably in relation to the absence management and performance management processes and had it not previously, through Ms LaSalle on 12 February 2018, refused to implement key reasonable adjustments, dismissing at this point would have been within the range of reasonable responses. We conclude however that given the various matters set out above, looked at in their totality, dismissal at this point, for an employee with the claimant’s length of service, was not within the permissible range.
188 As for Mr Frost’s decision on the appeal, he appeared to concede that the claimant could return to work in the near future. He was, on the basis of the information provided at the appeal hearing, quite right to do so.
189 He relied on the claimant’s unwillingness to attend her workplace, Globe House, for the appeal hearing as evidence that she was not really fit to return to work at Globe House. That conclusion contradicts the claimant’s statement to the appeal that she was fit to return, that she was in a much better place after treatment for her mental health disability and the benefits of the ongoing support from her GP and her union. Further, she had understandably felt ashamed about having been dismissed. Were she to be reinstated, that sense of shame would have been lifted. Reasonable employers would have recognised that. Mr Frost did not.
190 As for Mr Frost finding it contradictory that the claimant wanted support from her manager but did not want to be seated near him, Mr Frost unreasonably failed to appreciate what the claimant and her representative were saying in relation to that matter. We refer to our findings of fact in that respect above. It was not reasonable to hold that her position was contradictory. It clearly was not.
191 As for the claimant not being ‘proactive enough’ about a return to work, we do not understand this remark. We again conclude that it was an unreasonable conclusion for Mr Frost to come to since it had no reasonable basis in fact. The claimant had been told by Ms LaSalle that significant reasonable adjustments were not going to be made, which he and Ms Sauer later concluded were in fact reasonable adjustments and that they could and would be made. After the 12 February 2018 letter, the claimant was unlikely to be able to return to work as a result of management’s unreasonable position in relation to those adjustments. Until management took a more reasonable approach, as Ms Sauer and Mr Frost later did, the claimant could not have been more proactive in relation to her return to work.
192 As for the issue about the 3-week phased return, Mr Frost stated in the appeal decision letter that there was ‘no medical evidence to support this’. There clearly was, as noted above in our findings of fact. It is very significant in our view that Mr Frost failed to appreciate this, demonstrating that his was not the approach of a reasonable employer, acting within the band of reasonable responses. We found his suggestion that this section of the appeal meeting notes did not reflect the actual discussion that took place to be wholly unconvincing. We have found that the minutes do indeed reflect what happened, as follows.
193 Mr Alam properly raised the question of a phased return in the light of the OH report. Ms Sauer had been happy to consider that. Mr Frost by contrast told the claimant that the respondent would not look at a phased return and commented: “Yes it’s difficult at first when returning, but you work your way through it”. That was an unjustifiable position to take, in the context of a request for a phased return, supported by occupational health, in relation to an employee who had been absent for about 10 months by the time of the appeal, for a stress-related illness which amounted to a disability. A short, phased return would clearly have been reasonable in those circumstances. Mr Frost’s rejection of it was wholly unreasonable.
194 In arriving at our decision as to whether or not the dismissal was fair, we again remind ourselves that it is not for us to substitute our decision for that of the employer. Our job is to review the reasoning behind both the decision to dismiss and the decision to reject the appeal by reason of capability, in order to conclude whether or not those decisions were reasonable or unreasonable, at the time that they were taken, bearing in mind all the circumstances of the case, as outlined above, including equity and the substantial merits of the case. We have set out above a number of significant factors in the decision-making process which we consider to be unreasonable. In arriving at our conclusion that the dismissal was unfair, we have taken account of those factors as a whole. On their own, any one of those factors may not have been enough. But taken together, they tip the balance significantly against the respondent.
195 The decision of Ms Sauer is certainly more finely balanced (even though we still consider it falls outside the band of reasonable responses). However, the fairness of the dismissal must in any event be judged by what happened at both the dismissal and appeal hearings. And Mr Frost’s decision on the appeal was clearly outside the range of reasonable responses of a reasonable employer.
196 If the decision had been instead to give the claimant a further chance to prove that she was able to put the management issues behind her and give effective service in future, it is a matter of speculation as to what would have happened. That is an issue for remedy in due course.
Disability (Issue 7)
197 The Respondent accepts that from October 2017 to date, the Claimant’s Arthralgia Arthritis, migraines, depression and/or anxiety amount to disabilities under section 6 Equality Act 2010.
Burden of proof provisions
198 In reaching our conclusions on the disability discrimination issues we have considered the burden of proof provisions under the Equality Act 2010. However, since we have been able to make clear findings of fact in relation to the issues before us, we have not found those provisions have assisted us one way or the other in this particular case.
Section 15 claims
Imposing a first written attendance warning on 19 October 2017 (Issue 10a)
199 We conclude, first, that this was both unfavourable treatment and a detriment. Further, it arose from disability-related absence, namely absence due to migraines. That was something arising in consequence of the claimant’s disability. The key question is whether or not the giving of the warning was justified.
200 We conclude that giving the claimant a FWAW on 19 October 2017, without a meeting having taken place with her to discuss that, as required by the policy, at which the OH reports could have been discussed, was not a proportionate means of achieving a legitimate aim. The legitimate aim relied on is ‘the implementation of an absence management procedure that seeks to both minimise the impact of ill-health on an employee’s attendance whilst also ensuring the efficient running of the department’. (GOR para 22, page 83)
201 We find that the aim was legitimate. But the means used to achieve it in this case were not proportionate. The provisions of the AMP are important. The failure to hold a meeting was a serious matter, not just a trivial breach of procedure. This claim therefore succeeds.
202 As for the appeal hearing, we note that this was dealt with by Mrs MacLeod as a complete rehearing. Mrs MacLeod informed us and we have accepted that she considered the sickness absence record of the claimant, in deciding to confirm the warning. By this stage the claimant had had 14 days absence, in less than 12 months, even if the 6.5 weeks following the accident had been disregarded (which Mrs MacLeod did not). The claimant told us in evidence that she considered that increasing the trigger point to 9 days would have been reasonable. Mrs MacLeod’s evidence was that trigger points are not increased to more than 12 days (i.e. double). Even if the trigger points had been increased therefore, and the 6.5 weeks absence following the accident was disregarded, whether completely or in part, a warning could still reasonably have been given.
203 As for the first sentence of paragraph 61 of the AMP, had this been a case where the subsequent absences were all clearly caused by the initial injury, we consider that the sickness absence related to the accident should have been discounted. However, in the circumstances of this case there was room for argument about the extent to which the occurrence of migraines had been exacerbated by the injury. The conclusion arrived at by Mrs MacLeod was one she could have legitimately arrived at, on the basis of the OH report. We therefore conclude that confirmation of the warning at the appeal hearing was a proportionate means of achieving the legitimate aim set out above, the claimant having been given by that stage an opportunity to make full representations about it.
Alterations to absence management triggers - 7 November 2017 (Issue 10b)
204 Refusing to alter absence management triggers could be classed as a detriment and as unfavourable treatment. However, this aspect of the case is far better analysed as a reasonable adjustments claim – see further below. In any event, we conclude that the decision of Mr Dalon to refuse to alter the absence management triggers at that stage had nothing to do with the ‘something arising from the claimant’s disability’ relied on by the claimant in this case. i.e. disability related absence and/or her request for reasonable adjustments. This issue does not succeed.
Ambiguous Performance concerns/performance meeting 08/11/17 - Issue 10 c
205 First, we have found that the performance concerns raised were not ambiguous, so that aspect of the claim fails. As for the performance management meeting on 8 November 2017, that could be classed as unfavourable treatment and as a detriment. However, we conclude that Mr Dalon did not subject the claimant to performance management processes, because of the claimant’s disability related absence or because of her request for reasonable adjustments. We conclude that Mr Dalon acted as he did because of the wider approach to performance management issues in HMPO at that time. Whilst we note that PCS had an issue with that performance management drive, Mr Dalon, as a manager, had to follow the management line. There was no link between the performance management meeting and either the claimant’s disability related absence, or her reasonable adjustments request.
Dismissing the claimant on 19 June 2018 (Issue 10d)
206 The dismissal of a claimant is classed as discrimination by section 39 (2)(c) Equality Act 2010. It is clearly unfavourable treatment. The dismissal arose from the sickness absence of the claimant, the vast majority of which was due to migraines and to anxiety and depression. It was disability related. The dismissal was therefore because of something arising in consequence of the claimant’s disability. The legitimate aim relied on is that stated above, which we conclude is a legitimate aim. Again therefore, this aspect of the claimant’s case turns on the question of justification.
207 In considering the question as to whether or not the dismissal was a proportionate means of achieving that legitimate aim, we refer to all of the factors we have mentioned above in arriving at the conclusion that the dismissal was unfair. We remind ourselves that, pursuant to the Grosset case, the test to be applied in an unfair dismissal claim is not the same as in a section 15 Equality Act claim. In a section 15 claim, we are entitled to objectively assess the employer’s decision to dismiss, not simply to review it. The test is an objective one to be applied by an employment tribunal, while keeping the respondent’s ‘workplace practices and business considerations’ firmly at the centre of our reasoning.
208 Bearing in mind the factors set out above, including the claimant’s length of service, the various failings of management, the effect of those failings on the claimant, the refusal by Ms LaSalle to implement key adjustments, and the flaws in the reasoning of Ms Sauer and Mr Frost, we consider that objectively judged, the dismissal was not a proportionate means of achieving a legitimate aim. This was in our view clearly a case where the employer should have waited ‘a little longer’ (to use the language of O’Brien) and given the claimant a chance to show that she could return to work when she had indicated she would have and subsequently provide effective service in future. If not, dismissal could have followed relatively quickly, given that the claimant was already on a warning and could potentially have been placed on a final written warning. The legitimate aim did not require the claimant to be dismissed when she was. It was not necessary and was too draconian in the circumstances which we have described in detail above.
Failure to make reasonable adjustments (Issues 13 to 15)
209 These claims are dealt with below in relation to each step contended for by the claimant.
a. Alteration/increase in trigger points for Attendance Management (Issue 15a)
210 The relevant PCPs are at 13 a and b above. It is accepted by the respondent that those are PCPs and created a substantial disadvantage for the claimant. We agree. 211 The sickness absence management triggers were mentioned in the October 2017 occupational health report, although they had clearly been considered before then as well. The AMP requires that consideration be given to whether or not they should be changed. Had this been the first time that the question had been raised, we consider that Mr Dalon’s approach may have been reasonable. However, at the time that he made his decision not to adjust the trigger points, a number of adjustments had been outstanding for some time. It would have been reasonable to adjust the triggers at that point. Once the adjustments were in place, and a proper internal assessment done on performance and remedial actions, he could have looked at them again. We therefore conclude that there was a failure to make a reasonable adjustment at this time. The fact that it would probably not have made any difference ultimately to the dismissal outcome or the FWAW does not affect our conclusion as to whether or not the adjustment should have been made.
b. Moving the Claimant to a quiet work area with reduced sensory stimulus, including the Claimant’s previous work bay / c. Avoidance of bright lights (Issues 15b and 15c)
212 We conclude that there was a PCP and/or a physical feature of the premises, which gave rise to a substantial disadvantage, namely the requirement to work in an open plan environment, which was brightly lit, and noisy. This placed the claimant at a substantial advantage, since because of her migraines, and the frequent headaches that they gave rise to, she was more sensitive to bright light and to noise, than non-disabled colleagues. These matters were clearly raised in the occupational health reports, particularly in October 2017.
213 We conclude that it would have been a reasonable step to move the claimant to a quiet work area with reduced sensory stimulus, including the claimant’s previous work bay. Mr Dalon agreed to look into this when he met with the claimant on 6 November and confirmed that in this email of 7 November 2017. We further conclude however that it would not have been possible for the respondent to have made this adjustment by the time the claimant went off sick on 21 November 2017. Although it would undoubtedly have helped her perception at that stage, of the workplace and lack of management support, had Mr Dalon been more proactive.
214 The respondent had access to a specialist reasonable adjustment team, as well as Access to Work. The fact that the claimant went off sick on 21 November 2017 does not end matters there, in the light of Ms LaSalle’s letter of 12 February 2018, making it clear that the previously agreed adjustments were not going to be made. The move to a quiet work area with reduced sensory stimulus etc was the key adjustment that the claimant was requesting. The respondent’s failure to agree to make that adjustment was part of the reason she could not return to work between February and May 2018.
215 A suitable place to work could have been found for the claimant whilst she was on sick leave, at the latest by the beginning of April 2018. Both Ms Sauer and Mr Frost agreed that it was an adjustment that could be made. This, together with Mr Alam’s evidence in relation to the specialist adjustment team and the example he gave of another member in the Ministry of Justice who that team had helped, only reinforces our view that this was a reasonable adjustment and that there was a failure to take this reasonable step. Had it been taken, it is likely that it would have alleviated the substantial disadvantage, as evidenced by the fact that up until 2015 when the claimant was moved from her workstation, there had not been any particular issue in relation to sensory stimulus.
d. Regular microbreaks every hour/short breaks throughout working day (Issue 15d)
216 The relevant PCP in relation to this proposed step is ‘inconsistent or no breaks during working hours’. There was no such PCP. The claimant was entitled to take micro breaks, and indeed that is what the occupational health reports had consistently recommended from 2014 onwards. The claimant clearly misunderstood the adjustment that occupational health had recommended. It was her view that she should be allowed to take 10 to 15 minute-breaks every hour. We do not consider that would have been reasonable. It was not what OH was recommending.
217 On the basis that there wasn’t a relevant PCP, as contended for by the claimant, and on the basis that she clearly misunderstood what was being recommended, we do not consider that there was a failure to make a reasonable adjustment.
e. Suitable space to rest if she was experiencing a migraine (Issue 15e)
218 It is clear from Mr Dalon’s email of 7 November 2017 that the claimant was advised that she could use the first aid room, to recover in, were she to suffer a migraine attack at work. This was to enable her to remain at work, in the hope that the migraine would pass and she would be able to continue her duties once the migraine was under control. We consider that this adjustment was offered a reasonable time after it had been recommended. There was not therefore a failure to make this reasonable adjustment.
f. Formal workstation assessment; to include an adapted keyboard, ergonomic chair and screen protector (Issue 15f)
219 In relation to the ergonomic chair, it is clear from our findings of fact, that by October 2017, the date by which the claimant is conceded to have had a disability, the claimant had a suitable ergonomic chair. That had been provided on her return to work from her workplace accident, in about December 2016.
220 As for the adapted keyboard, and the screen protector, those were still outstanding in October 2017, and were recommended adjustments. These were pleaded as PCP issues but they are clearly in fact auxiliary aids. The claimant was at a substantial disadvantage as a result of them not being provided and having to use standard equipment because the keyboard she was using affected her arthritis which caused pain in her hands; and the screen protector helps to reduce glare, and therefore helped to mitigate the effects of her migraines and/or to reduce the likelihood of them occurring at all. As is apparent from our findings of fact in relation to the keyboard, the claimant may at some stage have been offered another keyboard. It is however entirely unclear as to when that happened and whether her refusal of those particular keyboards was unreasonable. It was incumbent on the respondent to have proper paperwork in place or witness evidence in order to prove it was. Neither has been provided. 221 These adjustments were still outstanding in October 2017 and these items should have been made available. The screen protector was first mentioned in 2014 and we consider that on any assessment, a properly functioning screen protector should have been provided by the beginning of November 2017. As for the keyboard, this is first mentioned in the OH report in 2 October 2017 and Mr Dalon agreed to replace it at the 6 November meeting. It does take some time to obtain such items, so we do not consider that this was a step that should have been completed by 21 November 2017 when the claimant went off sick. Nevertheless, this matter was revisited during the meeting with Ms LaSalle in relation to the claimant’s grievance, and as noted above, the screen protector and keyboard were two adjustments which she said were not going to be made. Whilst these matters were potentially minor, compared to the move of her workstation etc (i.e. issues 15b and c), they were still adjustments which should have been carried out. The continuing failure to agree these adjustments from 12 February 2018 onwards amounted to failures to make reasonable adjustments.
222 As for the workstation assessment, the carrying out of a workstation assessment or risk assessment is not a step - see Tarbuck and related cases.
g. Recording disability related absence separately to other sickness absence (Issue 15g)
223 This could well amount to a PCP. However, this part of the claim fails because the claimant was not under any substantial disadvantage as a result of any such practice of the respondent to record disability related absence separately to other sickness absence. All of the sickness absence which affected the claimant, in relation to the matters raised by her claim, was either for migraines, or was linked to her disability of anxiety and depression. Her absence from October 2016 onwards was not for any other reason. Recording the disability related absence separately to other sickness absence would not have alleviated any substantial disadvantage to the claimant even if there had been any, because there was no non-disability related absence to record. Taking this step would therefore have made no difference whatsoever to either the issuing of the first written attendance warning or to the dismissal. In addition, there is no obligation on an employer to discount all disability related absence. The real issue, it seems to us, is not how sickness absence is recorded but the extent to which disability related sickness absence is considered in any management decisions. The former risks putting form above substance.
h. Provision and payment of cab fares when disabilities flared up (Issue 15h)
224 We find that there was no such PCP. The respondent exercised discretion on a case-by-case basis in relation to the payment of taxi fares for staff. Given that this was how the claim was put in the list of issues, it necessarily fails. In any event, whilst we could see how it could be argued that there was a substantial disadvantage to the claimant had there been such a practice, we do not consider that the step contended for by the claimant would be a reasonable step. Further, the question as to ‘when the claimant’s disabilities flared up’ is too vague for us to have been able to determine this issue.
Victimisation (Issues 16 and 17) The respondent conceded on day two of the hearing that the acts relied on by the Claimant were protected acts within the meaning of s 27(2) EqA 2010? The protected acts were the grievance dated November 2017, asserting disability discrimination and failure to make reasonable adjustments; and the issuing of the first Employment Tribunal Claim, raising disability discrimination claims.
The key issue is whether the Respondent subjected the Claimant to unfavourable treatment because of one or both of the above protected acts. The Claimant relies on one alleged unfavourable/detrimental act, namely the decision to dismiss her. We refer to our conclusions above that the reason for the dismissal of the claimant was capability. We further conclude that neither the claimant’s grievance, nor the submission of her first employment tribunal claim, had any influence on the decisions of Ms Sauer or Mr Frost. In those circumstances, this claim fails.
Unauthorised Deductions from Wages/Breach of Contract (Issues 18 and 19)
The first issue was whether or not the Claimant was entitled to payment under the Civil Service Compensation Scheme because her employment was terminated on grounds of ill health? The respondent accepts that she was indeed so entitled - so that issue was conceded.
The second issue is whether, if so, the Respondent has paid the Claimant her full entitlement? The Claimant argued that deductions of approximately £6,000 were made from her compensation without authority or clarification of the deductions. The claimant accepted that the respondent was entitled to make deductions from the final payments, including her pay, accrued holiday pay, payment in lieu of notice and the compensation scheme payment. It was accepted by the time of the hearing that the payments were made ‘with authority’.
As noted above, the claimant conceded through Mr Walker her counsel, that she not in a position to challenge the figures themselves. So, the amounts that have been deducted are accepted. The key issue for the claimant, as it was put at the commencement of the hearing, was that when she was originally paid the subsequently deducted amounts, she was paid net of tax and NI. By contrast, when the deductions were subsequently made, they were made gross. That, the claimant argued, left her out of pocket in relation to tax and NI.
By the time of the final submissions, Mr Walker was not in a position to say what amounts had been deducted by way of tax and National Insurance. The figures were not available. Necessarily therefore, we are not in a position to determine what amounts could potentially be payable for unauthorised deduction of wages or for breach of contract, even if we had found that the deductions were indeed made in breach of contract and/or were unauthorised deduction of wages. In those circumstances, the claims necessarily fail.
During final submissions, Mr Walker stated that there could well have been an argument that the deduction of the alleged overpayments from the claimant’s wages in October 2018 was an unauthorised deduction. Unfortunately, presumably because of the paucity of information that the claimant solicitors had at the time the claim was submitted, the claim was not pleaded in that way initially. The case proceeded before us on the basis that this issue was solely concerned with the question of whether or not the deduction should have been made net of tax and National Insurance. Not surprisingly, Mr Walker did not make any application to amend the basis of the claim at such a late stage in the proceedings. We did not hear any evidence as to the terms or potential terms of the claimant’s contract, whether contained in contracts or policy documents etc, relating to deductions of overpayments. Since that issue was not before us, and we heard no evidence on it, we are not able to determine it.
232 This is however a matter that we hope the respondent will cooperate with the claimant in relation to, so that the claimant can contact HMRC, with a view to any tax and national insurance which has potentially been overpaid, being returned to her.
Time-limits
233 The first ET1 was presented on 6 March 2018. Acas EC occurred between 4 December 2017 and 4 January 2018, a period of one calendar month. The effect of Acas EC in these circumstances is to extend the usual deadline by one month. Therefore, all matters which predate the period of 4 months less one day, prior to the submission of the claim are potentially out of time, ie those matters which occurred prior to 7 November 2017.
234 In relation to the claims on which we have found for the claimant, the only claim which is potentially out of time is the claim in relation to the first written attendance warning, which was given on 19 October 2017. We find that the warning given was part of conduct extending over a period, since the imposition of the first written attendance warning was part of the application of the absence management procedures, which culminated in the claimant’s dismissal on 19 June 2018. We have also concluded that there were failures to make reasonable adjustments from November 2017 onwards, and we further find that the issue of the warning on 19 October 2017 was part of that conduct extending over a period too.
235 Even if we were wrong in relation to the ‘conduct extending over a period’ issue, we conclude that it would in any event be just and equitable to extend the time limit in the circumstances of this case, to allow the claim to be submitted, some 19 days later than it should otherwise have been.
236 Evidence in relation to the first written attendance warning is relevant to the other matters in the claimant’s claim and forms part of the relevant background. We rightly heard evidence in relation to it and would have done so even if that had not been pursued as a separate claim. The respondent has not been under any disadvantage, given the date when the claim was submitted, and given that such documentary records relating to the issue of the warning that did exist were contained in the claimant’s personnel file, which would have been readily available to the respondent. The respondent was on notice shortly after 6 March 2018 that a claim had been submitted against it. 237 For all of these reasons, even if we had concluded that this claim was not part of conduct extending over a period, we conclude that it was submitted within such other period as we consider just and equitable.
______________________________________________________________________
Employment Judge Andrew James London Central Region
Dated 9th March 2020
Sent to the parties on:
10/03/2020
.................................................................... For the Tribunals Office
Public access to employment tribunal decisions Judgments and reasons for the judgments are published, in full, online at www.gov.uk/employment-tribunal-decisions shortly after a copy has been sent to the claimant(s) and respondent(s) in a case.
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b2e17dc10312fb25563004e7201bc27016b6dcff | EMPLOYMENT TRIBUNALS
Claimant: Mrs Jones Respondent: Home Start Greenwich
Heard at: London South On: 3 March 2020 Before: Employment Judge Khalil (sitting alone)
Appearances For the claimant: Ms Alyamani, FRU For the respondent: Mr Hussain, Litigation Consultant, Croner
JUDGMENT
The claim for unauthorised deductions is dismissed upon the claimant’s withdrawal of that claim.
Employment Judge Khalil 3 March 2020
Public access to employment tribunal decisions
All judgments and reasons for the judgments are published, in full, online at www.gov.uk/employment-tribunal-decisions shortly after a copy has been sent to the claimant(s) and respondent(s) in a case.
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d8f9b81b977d29f6a0231bbb4c49e00d43d7e637 | EMPLOYMENT APPEAL TRIBUNAL ROLLS BUILDING, 7 ROLLS BUILDINGS, FETTER LANE, LONDON EC4A 1NL
At the Tribunal On 29 July 2019 Judgment handed down on 18 October 2019
Before
THE HONOURABLE MR JUSTICE CHOUDHURY (PRESIDENT) (SITTING ALONE)
MR COLLERIDGE BESSONG APPELLANT
PENNINE CARE NHS FOUNDATION TRUST RESPONDENT
JUDGMENT (Appeal & Cross-Appeal) APPEARANCES
For the Appellant
Ms Karon Monaghan (One of Her Majesty’s Counsel) Mr Nathaniel Caiden (of Counsel) Instructed by: Legal Services Royal College of Nursing Chesham House St Georges Square Bolton BL1 2HB
For the Respondent
Ms Joanne Connolly (of Counsel) (Written submissions only) Instructed by: Hempsons Solicitors 16th Floor City Tower Piccadilly Plaza Manchester M1 4BT SUMMARY
RACE DISCRIMINATION – Harassment, Third-Party Harassment
The issue in this appeal is whether s.26 (1) of the Equality Act 2010 (“the 2010 Act”) should be interpreted so as to impose liability on an employer for third-party harassment against employees. The Claimant worked as a mental health nurse and was assaulted by a patient on racial grounds. Whilst the Tribunal found that as a result of various failures on the part of the employer, including a failure to ensure that all incidents of racial abuse were reported, the Claimant had been indirectly discriminated against, it rejected the Claimant’s claim of harassment because the employer’s failings were not themselves related to race. On appeal, the Claimant argued that s.26(1) of the 2010 Act should be construed in accordance with Directive 2000/43/EC (“the Race Directive”) under which it is sufficient for liability to arise where the act of harassment “takes place” without any requirement that the employer's failings themselves had to be related to race.
Held: Dismissing the appeal, that on a proper construction of the Race Directive there is a requirement for the unwanted act (in this case, the employer’s failings) to be related to race and the words “takes place” in Article 2(3) of the Race Directive do not give rise to the interpretation for which the Claimant contends. The EAT is in any event bound by the decision of the Court of Appeal in Unite the Union v Nailard [2019] ICR 28, which confirms that there is currently no explicit liability under the 2010 Act on an employer for failing to prevent third-party harassment. THE HONOURABLE MR JUSTICE CHOUDHURY
1. The issue in this appeal is whether s.26 (1) of the Equality Act 2010 (“the 2010 Act”) should be interpreted so as to impose liability on an employer for acts of harassment against its employees by third parties where the employer has failed to prevent and/or protect an employee against such harassment, and where such failure by the employer is not itself related to race. For the purposes of this judgment, I shall refer to such harassment as “third-party harassment”.
2. The appeal is brought by the Claimant in the proceedings below. He is represented by Ms Monaghan QC and Mr Caiden. The Respondent NHS trust was not represented by Counsel at the hearing before me. Instead, the Respondent relied upon written submissions prepared by Ms Connolly of Counsel, who did appear on behalf of the Respondent before the Employment Tribunal (“the Tribunal”).
Factual Background
3. The Respondent provides mental health services including a secure, residential unit for adult men who are the subject of a treatment order under s.3 of the Mental Health Act 1987. The Claimant was employed by the Respondent at the unit as a registered mental health nurse. The Claimant is Black and African.
4. On 7 April 2017, the Claimant was subject to a serious assault by a patient (“Patient A”). Patient A threw about 8 punches at the Claimant and held a pen as a weapon. The assault was accompanied by racist abuse including Patient A saying, “You fucking black I’m going to stab you now”.
UKEAT/0247/18/JOJ -1- 5. Although the Claimant managed to fend Patient A off, he sustained significant facial swelling and redness and had to go to hospital. The assault was reported to the police and a record of the assault was made by the Trust. An incident report form about the assault was completed. It made no mention of the racist element of the assault.
6. Patient A, the Tribunal found, had a history of racist behaviour towards black members of staff. An incident on the night before the assault in question involved Patient A asking, “Why it was all black people working in the ward?”
7. The Claimant commenced proceedings in the Tribunal against the Respondent on 16 August 2017. He claimed direct race discrimination, indirect race discrimination and harassment. The direct discrimination complaint involved an allegation that the Respondent had failed to take steps to counter the threat posed by Patient A on 7 April 2017 and that the Claimant was exposed to racial abuse from patients without redress. The particular ways in which the Respondent was said to have failed to provide protection included failing to employ an adequate number of staff, failing to provide adequate training, and a failure to redeploy the Claimant to other roles. The claim of indirect discrimination involved three matters relied upon as provisions, criteria or practices (“PCPs”) which were said to be discriminatory. The principal PCP for present purposes was that the Respondent had failed to ensure that all staff reported each and every incident of racial abuse by patients on an incident reporting form. This was described by the Tribunal as “the incident reporting failing”. The claim of harassment was initially based on the failures on the part of the Respondent to take these steps relied upon in the claim of direct discrimination. However, at the hearing before the Tribunal, it was argued by the Claimant that the incident reporting failing should also be considered to be an act of harassment through inaction. The Tribunal accepted that argument. No point is taken against the Tribunal’s approach in this regard.
8. The Claimant’s claim of indirect race discrimination succeeded in relation to the incident reporting failing. As to this matter, the Tribunal made the following findings:
“151. It was clear that the policy was that all incidents of racial abuse should be the subject of an incident report. So much was evident from the MVA training pack at page 540, from the evidence of Mr Heath, and from the definition of an incident at page 363 which included any incident which could have resulted in mental injury. The categories of incident reporting available via menus on the electronic form included “verbal abuse to staff” and a potential sub-cause was “racism”.
152. Equally, it was clear that not every incident of racial abuse was reported using the incident report system. The grievance reached that conclusion (page 318). It was evident from staff interviews that there were more instances of racial abuse than were formally reported. The recommendations included that there be a review and that steps should be taken to ensure that all staff knew they should report such matters.
153. Indeed, Mr Liffen accepted not only that staff were not reporting such matters but also that the comments made by patient A at the community meeting on 6 April 2017 ought to have been the subject of an incident report if the policy were applied strictly.
154. The Tribunal unanimously concluded that a perception had formed amongst many black staff that reporting every single racist incident was pointless. The consequence was that the incident report system fell into disrepute in that respect…
155. Further, we concluded that there were steps which the Respondent should have taken to reinforce the message to staff that they should do an incident report after every such incident. The failure to take those steps contributed to the negative perception held by many black staff about the value of incident reporting…”
156. The Tribunal then went on to make findings as to the steps which should have been taken. These included ensuring that patients were made aware that racist incidents were unacceptable, reinforcing that message in various respects, completing an incident report every time a racist comment was made irrespective of how it came to their attention, providing clear feedback to individuals once it was made, conducting a staff survey, and focusing on racist abuse in staff training.
157. In determining the effect of the failure to take such steps, the Tribunal held as follows:
“156. Of course, the failure to take such steps to encourage incident reporting would be immaterial unless it contributed to the claimant’s exposure to racial abuse and physical violence from patient A on 7 April 2017. The Respondent’s case was that the gaps in the incident reporting system were not material because those incidents of racist abuse were recorded in other ways. They would go in the nursing notes and then be fed into the monthly CTM, and thereby form part of the patient risk assessment and any behaviour management plan. Further, the Respondent suggested that given the patient population, some level of racist comment was unavoidable.
157. Although we recognised that the absence of an incident report did not mean that racial abuse went unrecorded, we were satisfied unanimously that the failure to create a culture in which all such incidents were formally reported in that way contributed to an environment in which racial abuse from patients was more likely to occur. There was a perception among some staff that it was simply part of the job and had to be tolerated. That made it more likely that patients would not be challenged over racist comments and abuse. At a corporate level the absence of incident reports on every occasion meant that the risk of verbal racist abuse was under-appreciated and therefore not sufficiently prioritised as a risk to be addressed. At ward level the confidence of staff to challenge such behaviour was impaired by the perception that management were not taking the issue as seriously as they should…”
158. The Tribunal went on to consider whether a practice of universal reporting of racist incidents would have made any difference to the situation with which the Claimant was confronted on 7 April 2017. The Tribunal concluded that it would have done: see paragraph 159.
At paragraph 162, the Tribunal concluded as follows:
162. For those reasons the Tribunal was unanimously satisfied that the Respondent had failed to take sufficient steps in relation to the proper reporting of racist abuse, and that this contributed significantly to the situation in which staff perceived themselves as unsupported in relation to such matters. A proper approach to this could have made a difference to the exposure of the claimant to the events of 7 April 2017.
163. Having made those findings, the Tribunal went on to consider whether the incident reporting failing give rise to any breach under the 2010 Act. The Tribunal considered the claim of harassment first. It found that the incident reporting failing represented unwanted conduct on the part of the Respondent. However, the Tribunal did not accept that such conduct (in the form of inaction) was “related to” race so as to bring it within the scope of s.26 (1) of the 2010 Act:
Related to race
167. The Tribunal then considered whether the incident reporting failing related to race. It is clear (see Nailard paragraph 97) that the words “related to” were intended to effect a change to the previous formulation of “on the grounds of” race. The test is broader than the causation test for direct discrimination where the protected characteristic has to have a material influence on the mental processes of the person taking action or failing to take action.
168. However, equally it would be an error of law (unless Mr Caiden is correct in his contention about the direct effect of the Directive - see below) for the Tribunal to assume that conduct is related to race simply because the actions of the third parties (in this case, the patients) were themselves harassment related to race. That approach would have been permissible under the now-repealed third-party harassment provisions of the Equality Act but they were not in force at the time of this incident.
169. It appeared from \[Unite the Union v Nailard [2017] ICR 121\], however, that there is still a requirement that the employer’s conduct/inaction is itself related to the protected characteristic, as per Conteh. The claimant’s success in \[Sheffield City Council v Norouzi [2011] IRLR 897\] was a result of a concession by the Respondent about the meaning of the Directive (based on the EOC Case), a concession about which the EAT had its doubts. Nailard was the most recent authority and we preferred to follow it rather than the approach agreed by the parties in Norouzi. As a result we rejected Mr Caiden’s argument that the Directive had direct effect so as to make the Respondent liable for racial harassment by patients. We therefore considered whether the incident reporting failure by the Respondent could be said to be related to race.
170. It seemed to us that to make that finding would be to distort the meaning of section 26, even recognising that it is a formulation wider than “because of” (or “on the grounds of” as in \[Conteh v Parking Partners Ltd [2011] ICR 341\]). We rejected the contention that this was treatment “because of race” (see below). Nevertheless in his written submission Mr Caiden invited us to conclude that “given the scale of the issue and the Respondent burying its head in the sand there must have been some relationship with the claimant’s race”. He based that on a suggestion that such a scale of sexual assaults, touching and language would have been addressed differently. We rejected that argument. It was merely supposition. There was nothing in the Respondent’s failure to ensure universal reporting of racist incidents which was related to race other than the subject matter of the failure. On that basis the harassment complaint failed.”
171. The claim of direct discrimination therefore failed because the Tribunal declined to draw the inference that the incident reporting failure was because of race, either consciously or subconsciously. It found that the fact that the abuse was racial in nature played no part in the mental processes of management in failing to ensure that such matters were properly reported on the incident reporting system.
172. As stated above, the claim of indirect discrimination did succeed. The Tribunal was satisfied that the incident reporting failure “was at least in part a consequence of the failure by the Respondent to take adequate steps to ensure that this was done.” The Tribunal also found that non-white British members of staff are much more likely to be subjected to racial abuse than white British staff, and that the failure to ensure universal incident reporting helped to create an offensive and humiliating environment for non-white staff in which they felt unsupported and racist behaviour by patients became more likely. That constituted a disadvantage for non-white staff and one which was suffered by the Claimant as well. On that basis the Tribunal found that the ingredients of s.19 of the 2010 Act were satisfied. The question of remedy was adjourned to a later date.
**Legal Provisions**
15. Section 26 of the 2010 Act, so far as relevant, provides:
“(1) A person (A) harasses another (B) if - (a) A engages in unwanted conduct related to a relevant protected characteristic, and (b) the conduct has the purpose or effect of - (i) violating B’s dignity, or (ii) creating an intimidating, hostile, degrading, humiliating or offensive environment for B.
...
(4) In deciding whether conduct has the effect referred to in subsection (1)(b), each of the following must be taken into account –
(a) the perception of B; (b) the other circumstances of the case; (c) whether it is reasonable for the conduct to have that effect.
(5) The relevant protected characteristics are –
... race; ...
16. Section 40 of the 2010 Act deals with harassment against employees and applicants. It provides:
“(1) An employer (A) must not, in relation to employment by A, harass a person (B)—
(a) who is an employee of A’s; (b) who has applied to A for employment.”
17. That is the version of s.40 that has been in force since 1 October 2013. On that date, subsections (2), (3) and (4) of s.40 were repealed by the coming into force of the Enterprise and Regulatory Reform Act 2013 (“the 2013 Act”). Those subsections dealt with third-party harassment. It is relevant to note what those provisions said. I shall refer to them as “the old s.40 provisions”:
“(2) The circumstances in which A is to be treated as harassing B under subsection (1) include those where—
(a) a third party harasses B in the course of B’s employment, and (b) A failed to take such steps as would have been reasonably practicable to prevent the third party from doing so.
(3) Subsection (2) does not apply unless A knows that B has been harassed in the course of B’s employment on at least two other occasions by a third party; and it does not matter whether the third party is the same or a different person on each occasion.
(4) A third party is a person other than—
(a) A, or (b) an employee of A’s” 18. The legislative history of these provisions is explained by the Court of Appeal in *Unite the Union v Nailard* [2018] EWCA Civ 1203. I set out the explanation in *Nailard* in full as Ms Monaghan seeks to argue, as will become apparent below, that the Court of Appeal in *Nailard* was wrong:
“Section 26
53. In the earliest versions of the discrimination legislation there was no distinct proscription of harassment. Cases of what we would now regard as harassment were brought as cases of ordinary direct discrimination. The fit with the legislative language was awkward, and some difficult case-law was generated. However, an amended version of the EU Equal Treatment Directive (EU/2002/73 EC), promulgated in 2002, required member states to proscribe "harassment", which was defined in the Directive as "where unwanted conduct related to the sex of a person occurs with the purpose or effect of violating the dignity of a person, and of creating an intimidating, hostile, degrading, humiliating or offensive environment [my emphasis]".
54. That requirement was sought to be implemented in 2005 by secondary legislation which inserted an express prohibition on harassment – section 4A – into the Sex Discrimination Act 1975. (Similar amendments were made to the legislation relating to other protected characteristics.) Section 4A essentially tracked the Directive, save that it used the formulation "on the ground of her sex" – that is, the same language as in the definition of direct discrimination – rather than "related to sex".
55. The Equal Opportunities Commission believed that the amendment legislation failed in that respect – and in several others – to conform to the requirements of the Directive. It brought judicial review proceedings. In Equal Opportunities Commission v Secretary of State for Trade & Industry [2007] EWHC 483 (Admin), [2007] ICR 1234, ("the EOC Case") Burton J upheld the Commission's challenge. We are only concerned with two of the grounds of challenge, which I take in turn.
56. First, the Commission argued, and Burton J accepted, that the Directive's formulation of "related to … sex" proscribed not only harassment which was "caused by" the claimant's sex but also harassment which was "associated with" it: see paras. 6-28 of his judgment. Burton J illustrated the distinction between the two types of case, at paras. 10-11 (p. 1242-3), by accepting three examples taken from the case-law by counsel for the Commission (Dinah Rose QC), namely:
- where an RAF NCO had used offensive and obscene language in front of a group of male and female staff but which was peculiarly offensive to the women (Brumfitt v Ministry of Defence [2004] UKEAT 1004/03, [2005] IRLR 4);
- where the claimant had been unfairly treated by a manager who was jealous of her sexual relationship with a colleague (B v A [2007] UKEAT 0450/06);
- where a manager " barged into" a female toilet but would equally have barged into a male toilet (adapted from Kettle Produce Ltd v Ward [2006] UKEATS 0016/06/0811).
Those were all cases where the harassment would be "associated" with the complainant's sex but not "caused by" it, in the sense of it forming any part of the actor's motivation. The Commission contended that that type of case was not caught by the formulation in section 4A "on the grounds of sex". Counsel for the Secretary of State (David Pannick QC) argued that it was, if necessary applying a Marleasing approach to construction. Burton J was doubtful about whether that was so, but he held that in any event it was important that the legislation was drafted in a way that put the matter beyond doubt: see paras. 59-63 of his judgment (pp. 1257-8). In the summary of the relevant part of his decision at para. 63 (i) he required section 4A to be "recast so as to eliminate the issue of causation".
57. Secondly, the Commission contended that the Directive required member states to provide for employers to be liable in cases where they failed to take reasonable steps to protect employees against harassment by third parties – labelled as "third party liability"[5]. However in her oral submissions Ms Rose retreated from that position. She is recorded by Burton J at para. 40 of his judgment (p. 1250H) as acknowledging that:
"... there is nothing explicit, or even arguably implicit, in any of the Articles requiring a Member State to impose vicarious liability on an employer, or indeed liability for negligent failure to take steps, such as were expressly found by the House of Lords in Pearce not to exist in the present discrimination legislation".
(The reference to Pearce is to the decision of the House of Lords which I consider at para. 88 below.) Her submissions proceeded on the basis that, even if there was no such requirement in the Directive, the Secretary of State himself had accepted that in some circumstances third party liability might be appropriate – see paras. 36 and 37 of the judgment (pp. 1249-50). Her argument was that the language of "on the grounds that" precluded such an outcome, but that the problem could be resolved by "adopting an associative rather than causative approach" which she was already contending for on other grounds. As I read his judgment, Burton J accepted that that was so, and the effect of his decision to require the adoption of "associative" language gave Ms Rose what she was asking for. But that was not in itself the reason for adopting that construction, and in para. 63 of his judgment, where he gives his final decision, he does not expressly refer to the third party liability point (see p. 1258B).
58. In response to the decision in the EOC Case the Secretary of State, exercising his powers under the European Communities Act 1972, made the Sex Discrimination (Amendment of Legislation) Regulations 2008, which took effect from 6 April 2008. So far as relevant for present purposes the Regulations did two things:
(1) They amended the definition of harassment section 4A of the 1975 Act so as to substitute the "related to" formulation used in the Directive. That formulation was then, as we have seen, carried over into the 2010 Act.
(2) They inserted into section 6, which proscribed discrimination and harassment in employment, a new sub-section (2B) dealing with third party liability. This was in substantially the same terms as section 40 (2)-(4) of the 2010 Act, which I set out at para. 59 below.
Section 40
59. As originally enacted, section 40 had three further sub-sections, as follows:
"(2) The circumstances in which A is to be treated as harassing B under subsection (1) include those where—
(a) a third party harasses B in the course of B's employment, and
(b) A failed to take such steps as would have been reasonably practicable to prevent the third party from doing so.
(3) Subsection (2) does not apply unless A knows that B has been harassed in the course of B's employment on at least two other occasions by a third party; and it does not matter whether the third party is the same or a different person on each occasion.
(4) A third party is a person other than—
(a) A, or
(b) an employee of A's."
As will be seen, those sub-sections were designed to impose liability on employers who had failed to take reasonable steps to prevent their employees being harassed by third parties.
60. However by section 65 of the Enterprise and Regulatory Reform Act 2013 sub-sections (2)-(4) were repealed, and there is now no explicit liability on an employer for failing to prevent third party harassment.”
61. The following points, relevant to this appeal, may be drawn from that analysis: a. An express prohibition on harassment was introduced into domestic legislation in 2005 following the promulgation of the **Equal Treatment Directive 2002/73/EC** (OJ 2002 L269, p.15).
b. The domestic provisions – s.4A of the **Sex Discrimination Act 1975** – in defining harassment, used the formulation of “on the grounds of” instead of “related to” as in the Directive;
c. The failure to use the “related to” formulation was challenged in **R (Equal Opportunities Commission) v Secretary of State for Trade and Industry [2007] ICR 1234** (“the EOC Case”);
d. Burton J in the **EOC Case** decided that s.4A of the 1975 Act should be “recast” so as to eliminate the issue of causation. Thus, an act which was associated with a person’s gender would be caught;
e. Whilst the EOC had also argued that the Equal Treatment Directive required Member States to impose liability on employers for third-party harassment, it was accepted that there is “nothing explicit, or even arguably implicit” in that Directive requiring that;
f. Liability for third-party harassment was not the reason that Burton J required s.4A of the 1975 Act to be recast;
g. In response to the decision in the **EOC Case** the Secretary of State introduced amendments to the domestic legislation which defined harassment by reference to the “related to” formulation used in the Equal Treatment Directive and which inserted new provisions prohibiting third-party harassment
h. Those third-party harassment provisions were carried over to the **2010 Act** s.40(2), (3) and (4): i. However, those subsections were repealed by the coming into force of the 2013 Act with the effect that there is now no explicit liability on an employer for failing to prevent third-party harassment.
20. “Discrimination” for the purposes of the 2010 Act includes indirect discrimination: see s.28 to the 2010 Act. By s.39(2) of the 2010 Act an employer must not discriminate against an employee by subjecting the employee to a “detriment”. Section 212(1) of the 2010 Act provides that, ““detriment” does not … include conduct which amounts to harassment”.
21. Directive 2000/43/EC (“the Race Directive”) provides, so far as relevant, as follows:
“Article 2 Concept of discrimination
1 For the purposes of this Directive, the principle of equal treatment shall mean that there shall be no direct or indirect discrimination based on racial or ethnic origin.
2 For the purposes of paragraph 1: a. direct discrimination shall be taken to occur where one person is treated less favourably than another is has been more would be treated in a comparable situation on grounds of racial or ethnic origin. b. indirect discrimination shall be taken to occur where an apparently neutral provision, criterion or practice would put persons of racial or ethnic origin at a particular disadvantage compared with other persons, unless that provision, criterion or practice is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary.
3 Harassment shall be deemed to be discrimination within the meaning of paragraph 1, when an unwanted conduct related to racial or ethnic origin takes place with the purpose or effect of violating the dignity of a person and of creating an intimidating, hostile, degrading, humiliating or offensive environment. In this context, the concept of harassment may be defined in accordance with the national laws and practice the Member States.
... 22. It can be seen from the provisions of Article 3 of the Race Directive that it is intended to apply in a wide range of situations and not just in the employment sphere.
23. Ms Monaghan also referred me to the Charter of Fundamental Rights of the European Union ("the Charter"). Article 21 of the Charter establishes non-discrimination as one of those rights. So far as relevant, it provides:
“Article 21 Non-discrimination
1. Any discrimination based on any ground such as sex, race, colour, ethnic or social origin, genetic features, language, religion or belief, political or any other opinion, membership of a national minority, property, birth, disability, age or sexual orientation shall be prohibited…”
2. Article 31 of the Charter provides:
“Every worker has the right to working conditions which respect his or her health, safety and dignity.”
25. Finally, Article 47 of the Charter deals with the right to an effective remedy and to a fair trial. So far as relevant, it provides that:
“Everyone whose rights and freedoms guaranteed by the law of the Union are violated has the right to an effective remedy before a Tribunal in compliance with the conditions laid down in this Article…”
Grounds of Appeal
26. The Claimant lodged his appeal against the Tribunal’s judgment on 24 August 2018. There are three grounds of appeal:
a. Ground 1: The Tribunal misinterpreted s.26 (1) of the 2010 Act in requiring that the employer’s conduct/inaction must itself be related to race in a complaint of third-party harassment.
b. Ground 2: The Tribunal erred in concluding that the Claimant was not entitled to rely directly on the Race Directive. c. Ground 3: The Tribunal erred in concluding that it was bound to follow and/or in deciding to follow the decision of the EAT in *Unite the Union v Nailard* [2017] ICR 121 ("Nailard EAT")
27. Permission to proceed with the appeal on all three grounds was granted on the sift by then President, Simler J (as she then was). The Respondent resists that appeal and cross-appeals on two grounds which arise only in the event that the Claimant succeeds in his appeal. The grounds of cross-appeal are that:
a. Cross Appeal Ground 1: The Tribunal erred in law in finding that the relevant conduct of the Respondent had the proscribed effect described in s.26 (1) (b) of the 2010 Act.
b. Cross Appeal Ground 2: If the appeal succeeds, by virtue of the definition of “detriment” in s.212 of the 2010 Act, the Tribunal’s finding of indirect discrimination was erroneous in law and should be set aside.
**The issues in this appeal**
28. These have been succinctly summarised by Ms Monaghan in her skeleton argument as follows:
a. Is the appeal on third-party harassment academic in light of the Tribunal’s conclusion on the indirect discrimination claim?
b. Does the Race Directive require Member States to outlaw third-party harassment where the harassment was foreseeable and preventable, without a requirement that the employer’s failures were themselves “related to” race?
c. If the Race Directive covers third-party harassment, can s.26 (1) the 2010 Act be interpreted to give effect to this? d. If s.26 (1) of the 2010 Act cannot be read and given effect to conform to the requirements of the Race Directive, does the relevant provision of the Race Directive have direct effect?
e. Was the Tribunal, and now the EAT, bound by the decision of the Court of Appeal in Unite the Union v Nailard [2018] EWCA Civ 1203; [2019] ICR 28 (“Nailard CA”)?
f. If the Claimant succeeds in his appeal, does the Respondent’s conduct have the proscribed effect in s.26 (1)(b) of the 2010 Act?
g. If the Claimant succeeds in his appeal was the Tribunal’s conclusion on indirect discrimination erroneous in law by reason of s.212 of the 2010 Act such that it should be set aside?
29. I shall deal with each issue in turn.
Is the appeal academic?
Submissions
30. The Respondent submits that as the Claimant’s success in his indirect discrimination claim would entitle him, in effect, to the same remedy to which he would have been entitled had he succeeded in his harassment claim, this appeal is rendered academic. The Respondent further submits that the Claimant has a declaration that he has been discriminated against and he can seek recommendations in respect of his indirect discrimination claim in the same way that he could for his claim of harassment had he succeeded in that. The Respondent acknowledges that whilst the absence of an intention to discriminate may lead to a different approach to the award of compensation in the indirect discrimination claim, the Tribunal is not precluded from making a compensation order, albeit that it must first consider whether to make a declaration and/or an appropriate recommendation. In this regard, the Respondent highlights the fact that it is not seeking to adduce any evidence on intention at the remedy hearing and states that it would not object to the Tribunal making a compensation order. In the circumstances, submits the Respondent, the outcome of the appeal as between the Claimant and the Respondent is academic.
31. Ms Monaghan submits that the appeal is not academic given that the level of compensation may differ depending on the heads of claim which succeed. The finding of harassment may be of real importance to the Claimant and others in his position since an individual subject to harassment might regard the declaratory relief that follows as a vindication of the position. The need to consider intention in the claim of indirect discrimination means that compensation might not be awarded at all for that claim. Ms Monaghan submits that even if the appeal were considered academic in respect of the potential remedy, the EAT should exercise its discretion to entertain academic appeals where they raise a point of general public importance and it is in the public interest to do so. She cites in support of that proposition the cases of Waterman v AIT group UKEAT/0358/05/DM at [5] and [11] and Rolls-Royce plc v Unite the Union [2010] ICR 1 at [49] to [58]. In this case, submits Ms Monaghan, the appeal does raise a point of general public importance as the EAT is being asked to construe a statutory provision derived from a Directive of widespread importance and affecting a large number of employees.
Discussion
32. In my judgment, this appeal is not academic. I say that for the following reasons:
a. Although the Claimant has succeeded in his claim of indirect discrimination, the claim of harassment is a very different head of claim which might give rise to a different (and possibly greater) level of compensation, if successful, than under the claim of indirect discrimination. As Ms Monaghan submits, correctly in my view, the more serious nature of the claim of harassment - which involves the creation of a hostile working environment that could well give rise to losses in respect of injured feelings and aggravated damages - would not be the same as or achievable under a claim of indirect discrimination. The situation here is quite different from that in the case of **IMI Yorkshire Imperial Ltd v Olender** [1982] ICR 69, upon which the Respondent relied. In that case, it was established at the outset of the hearing that compensation had been paid to the employees bringing the appeal, that they had been reinstated and that whatever the outcome of the appeal they would not lose their jobs. In that situation the appeal was truly academic as all apparent issues between the parties had been resolved leaving nothing to be determined which could have an effect on the outcome. That is quite different from the situation in this case where the Claimant appeals in respect of a head of claim which could produce quite a different outcome in terms of remedy from the head of claim which did succeed;
b. The key difference relevant to remedy in a claim of indirect discrimination is the need to consider intention. It is only if there is an intention to discriminate, albeit indirectly, that the Tribunal can move straight to a consideration of compensation: see s.124(2) of the **2010 Act**. If, however, the Tribunal is satisfied that the PCP in question was not applied with the intention of discriminating against the Claimant, it must not make an order for compensation unless it first considers whether to make a declaration and/or make an appropriate recommendation within the meaning of s.124(2)(a) or (c) of the **2010 Act**; see s.124(4) and (5) of the **2010 Act**. By contrast, if a claim of harassment is made out the Tribunal is not required to consider whether such harassment was intentional before awarding compensation, and nor is it required to consider other remedies first. The Respondent’s assurance that it does not seek to produce any evidence on intention does not obviate the need for the Tribunal to consider the point and to go through certain steps which are not required in the harassment claim. These seem to me to be material differences in approach and which mean that the claim of harassment possesses a sufficiently different character to render an appeal in respect of that head of claim substantial and not academic;
c. Finally, I agree that the declaratory relief in respect of a claim of harassment may have a certain value for the Claimant in that it may provide a degree of vindication which would not arise in a claim of indirect discrimination. As Ms Monaghan puts it, the application of a “racially neutral PCP” is very different from, and arguably less culpable than, the creation of a hostile working environment.
33. Even if I am wrong about that and the appeal is considered to be academic, the EAT could, in the exercise of its discretion, proceed to hear the appeal. The Court of Appeal in Hamnett v Essex County Council [2017] 1 WLR 1155 (in the context of an appeal relating to traffic regulation orders) considered the scope of that discretion:
“33. In a case involving a public authority and raising a question of public law, the court has a discretion to hear the appeal, even if by the time it is heard, there is no longer an issue to be decided which will directly affect the rights and obligations of the parties as between themselves: see R v Secretary of State for the Home Department, Ex p Salem [1999] 1 AC 450, 456, per Lord Slynn of Hadley. However, as Lord Slynn went on to emphasise, at p 457, that discretion was to be exercised with caution:
“and appeals which are academic … should not be heard unless there is a good reason in the public interest for doing so, as for example (but only by way of example) when a discrete point of statutory construction arises which does not involve detailed consideration of facts and where a large number of similar cases exist or are anticipated so that the issue will most likely need to be resolved in the near future.”
34. Just how narrow this discretion is, was underlined in this court in Hutcheson v Popdog Ltd (News Group Newspapers Ltd, third party) (Practice Note) [2012] 1 WLR 782. Lord Neuberger of Abbotsbury MR said, at para 12, that “the mere fact” that a projected appeal may raise a point or points of significance did not mean that “it should be allowed to proceed where are no longer real issues in the proceedings as between the parties.” Lord Neuberger formulated the following propositions, at para 15:
“Both the cases and general principle seem to suggest that, save in exceptional circumstances, three requirements have to be satisfied before an appeal, which is academic as between the parties, may (and I mean ‘may’) be allowed to proceed: (i) the court is satisfied that the appeal would raise a point of some general importance; (ii) the Respondent to the appeal agrees to it proceeding, or is at least completely indemnified on costs and is not otherwise inappropriately prejudiced; (iii) the court is satisfied that both sides of the argument will be fully and properly ventilated.”
Even taking into account that Hutcheson did not involve a public authority or a question of public law, the caution needed before exercising the discretion to proceed in a case which has become academic is readily apparent. (Emphasis Added) 34. Had I considered that the appeal was academic, the position as regards the three requirements identified above which must be satisfied before an academic appeal may proceed is, in my judgment, as follows:
a. The issue in relation to third party harassment is one of some general importance. It affects the scope of an important protection under the 2010 Act and could potentially affect many employees and employers. The Respondent contends that the matters raised are not ones of general importance because relevant protection is already afforded by the provisions on indirect discrimination. For reasons set out above, I do not consider that, in the circumstances, the protection against indirect discrimination affords a sufficiently equivalent remedy.
b. Although the Respondent does not consent to the appeal proceeding, it is not at any realistic risk on costs (given the limited costs jurisdiction in the Tribunal and the EAT);
c. Whilst it is not ideal that the Respondent was unrepresented at the hearing before me, I did have the benefit of very full written submissions from Ms Connolly on each of the issues I have to consider. In these circumstances, I am satisfied that both sides of the argument were properly put.
35. Taking all of those matters into account, and approaching the matter with due caution, it seems to me that this is an appropriate matter to proceed to hearing. I should mention that in coming to this conclusion I have not relied upon the fact that permission to proceed was granted on the sift. The argument that the appeal was academic was not before the then President and it would not be appropriate simply to have adopted the then President’s view that the matter was one of general public importance without considering the question afresh and in light of the Respondent’s submissions. Does the Race Directive require Member States to outlaw third-party harassment where the harassment was foreseeable and preventable, without a requirement that the employer’s failures were themselves “related to” race?
36. Ms Monaghan submits that the Race Directive and the other EU Equality Directives (2000/78/EC, 2006/54/EC and 2004/113/EC) require Member States to outlaw third-party harassment in certain circumstances; in particular where an employer has failed to protect or prevent his/her employee from foreseeable harassment by a third-party. She submits that the Race Directive does not require that the employer’s inaction in such circumstances be related to any protected characteristic.
37. The first point made by Ms Monaghan in support of that submission is that Article 2(3) of the Race Directive treats harassment as discrimination when “unwanted conduct related to racial or ethnic origin takes place with the purpose or effect of violating the dignity of a person and of creating an intimidating, hostile, degrading, humiliating or offensive environment”. Ms Monaghan submits that the underlined words indicate that there is no requirement that the employer itself engages in conduct “related to” race and that it is sufficient that such conduct, by a third party, merely ‘takes place’ or occurs. That interpretation is said to be supported by the terms of Article 3(1) which does not require that the acts of racial harassment are themselves done by the employer but requires only that the acts are done within the sphere of occupation and working conditions: Article 3(1)(a) and (c).
38. In my judgment there are several difficulties with Ms Monaghan’s submission:
a. It does not accord with the natural and ordinary meaning of the words used in Article 2(3) of the Race Directive. On a natural reading of that Article, the mischief to which it is directed is unwanted conduct relating to racial or ethnic origin. That is the conduct which is deemed by Article 2(3) to be discrimination within the meaning of Article 2(1). Conduct must be both unwanted and related to race before it can be deemed to amount to discrimination. There is nothing in the Article to suggest that some other act (or failure to act) that is either not unwanted or related to race, could also be deemed discriminatory.
b. Whilst it is correct that Article 2(3) does not stipulate that the unwanted conduct related to racial or ethnic origin must be conduct by the employer, that is merely because this broadly applicable directive seeks to adopt a definition for harassment that can be applied in a number of contexts, only one of which is employment. As is made clear by Article 3, the Race Directive is intended to apply to “all persons” in relation to the various sectors and areas identified, the third of which is employment and working conditions. The absence, therefore, of a specific perpetrator in the definition is unsurprising, and does not, in my judgment, mean that the intention was that liability should arise whenever unwanted conduct related to racial or ethnic origin takes place or occurs (it being accepted by Ms Monaghan that “occurs” is a synonym for “takes place”).
c. Indeed, if Ms Monaghan’s submission were correct then there would be no reason to impose liability for third-party harassment only on employers. Similar liability would have to be imposed in respect of persons in the spheres of education, social security and access to the supply of goods and services, irrespective of whether they would be in any position to take preventative steps in respect of potential harassment. Insofar as it is said that liability for third-party harassment should only extend to situations where a person is in a position to prevent or take steps to prevent such conduct, there is nothing in the Race Directive, or indeed any of the other Directives, which provides any basis for drawing such a distinction between the different categories of persons falling within the scope of the measure.
d. The fact that “occurs” is a synonym for “takes place” means that, if Ms Monaghan’s argument is correct, then the same liability for acts of third parties would arise in respect of both direct and indirect discrimination. Article 2(2)(a) provides that direct discrimination “shall be taken to occur” when one person is treated less favourably than another. As with the definition of harassment, the definition of direct discrimination does not identify a specific perpetrator of the less favourable treatment. In particular, it does not say that direct discrimination shall be taken to occur where one person is treated “by the employer” less favourably another. It cannot realistically be suggested that the intended effect of the Race Directive was to impose liability on employers and other persons for acts of direct discrimination by third parties. Ms Monaghan argues that the necessary causal relationship between the less favourable treatment and the protected characteristic dictated by the use of the formulation “on grounds of” in Article 2(2)(a) means that such liability could not arise in those circumstances, and that it is the broader “related to” formulation in Article 2(3) which permits of the liability for which Ms Monaghan contends. In my judgment, it is difficult to see why, on the one hand, the causative relationship means that the innocent employer is excluded from liability for the acts of a third party, whereas the associative relationship under Article 2(3) on the other means that he is not; in both Article 2(2) and Article 2(3), it would be sufficient, if Ms Monaghan is correct, for liability to arise simply because the act of discrimination or harassment has occurred or taken place. In neither case would it matter whether any associative or causative relationship between the conduct and the employer exists. There is nothing in any of the case law to which I was taken to suggest that such a broad interpretation of this Directive is apt.
e. The result of Ms Monaghan’s submission, if correct, would be to create a situation of strict liability for employers whereby they would be liable for acts of third-party harassment irrespective of any motivational element relating to race on its part. Ms Monaghan contends that the foreseeability of unwanted conduct would put the employer on notice of the potential for harassment to take place and that this would place some limit on the scope of the liability. However, even if that were not the case, and the position is one of strict liability, Ms Monaghan submits that the right under Article 31 of the Charter to working conditions that respect health, safety and dignity means that a position of strict liability is justified. I do not accept that submission. As I have already said above, Article 2(3) of the Race Directive seeks to prohibit unwanted conduct that is related to race; it does not have the effect of imposing liability when there is no such relationship between the conduct in question (in this case, by a failure to act or take steps) and race. If the intention had been to impose strict liability then one might have expected to see some explicit reference to such an aim in the preamble to, or elsewhere in, the Race Directive. However, there is no such reference.
39. I agree, therefore, with the Respondent’s submission that the Claimant seeks to place far more weight on the phrase “takes place” than it can bear.
40. Ms Monaghan sought to derive support for her broad interpretation of Article 2(3) of the Race Directive by reference to several other EU provisions and international instruments, chief amongst which was the Charter. Reliance is placed, in particular, upon Article 31 of the Charter which provides that: “Every worker has the right to working conditions which respect his or her health, safety and dignity”
41. In my judgment, the right to fair and just working conditions under Article 31 of the Charter cannot be read as requiring Member States to impose liability on employers for third-party harassment. Article 21 of the Charter deals specifically with “non-discrimination” and prohibits discrimination “based on” any ground such as sex, race etc. It seems clear therefore that insofar as it deals with non-discrimination, the Charter, in using the formulation of “based on”, which is narrower in scope than the “related to” formulation, was not seeking to impose liability for discrimination where there is no link between the act complained of and the relevant protected characteristic. The right in respect of working conditions under Article 31 of the Charter is a distinct right which cannot, in my judgment, be relied upon to expand the scope of another right dealt with under an entirely separate provision of the Charter. It follows that there is nothing in the Charter which justifies the imposition on employers of strict liability for third-party harassment.
42. Directive 2006/54 on the implementation of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation (recast) (“the Recast Directive”) upon which the Claimant also relies does not take the position further. Article 2(1) of the Recast Directive defines harassment as “where unwanted conduct related to the sex of a person occurs with the purpose or effect of violating the dignity of a person, and of creating an intimidating, hostile, degrading, humiliating or offensive environment.” Recitals (6) and (7) of the Recast Directive provide:
“(6) Harassment and sexual harassment are contrary to the principle of equal treatment between men and women and constitute discrimination on grounds of sex for the purposes of this Directive. These forms of discrimination occur not only in the workplace, but also in the context of access to employment, vocational training and promotion. They should therefore be prohibited and should be subject to effective, proportionate and dissuasive penalties. (7) In this context, employers and those responsible for vocational training should be encouraged to take measures to combat all forms of discrimination on grounds of sex and, in particular, to take preventive measures against harassment and sexual harassment in the workplace and in access to employment, vocational training and promotion, in accordance with national law and practice.”
43. The Claimant submits that these recitals reinforce his contention that the Race Directive, which is to be read consistently with the other directives dealing with discriminatory conduct, does not require that the employer itself engages in conduct “related to race” in order to be liable for harassment. It is said that the requirement to take preventative action makes it plain that liability for third-party harassment is intended also to be imposed on employers. I do not agree that the recitals can be construed as having that effect. These recitals appear to me to be directed to the encouragement of the taking of preventative measures by employers, but do not indicate that liability is to be imposed for the failure to take such measures (unless of course such failure is in itself such as to amount to unwanted conduct relating to the protected characteristic in question).
44. I was also referred to the International Labour Organisation’s Convention 190 (“the ILO Convention”) “on violence and harassment”, which was adopted 21 June 2019, but (as at the date of the hearing) was yet to be ratified by the UK or any other country. Article 4 of the ILO Convention provides that States must adopt:
“...an inclusive, integrated and gender-responsive approach for the prevention and elimination of violence and harassment in the world of work. Such an approach should take into account violence and harassment involving third parties, where applicable, and includes... (c) adopting a comprehensive strategy in order to implement measures to prevent and combat violence and harassment”. (Emphasis Added)
45. This express reference to third-party harassment appears to be unique amongst the various international instruments to which I was referred. Although it has not yet been ratified, Ms Monaghan submits that the contents of the ILO Convention form part of the international context to be taken into account by Member States in implementing and applying Directives and indicate that the prevention of third-party harassment is a common aim. I do not agree that this yet-to-be ratified Convention can legitimately inform the meaning to be given to provisions of the Directives. Until it is ratified, there seems to me to be no particular obligation on any country, or upon the UK in particular, to give the ILO Convention any significant weight in construing other instruments. In any event, the terms of Article 4 of the ILO Convention merely “encourage” the taking of an approach to deal with harassment that “takes into account” harassment involving third parties “where applicable” and the adoption of a “comprehensive strategy” to implement measures to prevent harassment. It cannot properly be read as imposing or seeking to impose liability on employers where there is a failure to implement such measures as being an act of harassment in itself.
46. I have not so far dealt with the final sentence of Article 2(3) of the Race Directive. This provides that “the concept of harassment may be defined in accordance with the national laws and practice of the Member States.”. The Respondent contends that the Claimant’s interpretation of Article 2(3) ignores this part which gives Member States a degree of flexibility as to how harassment is defined. That flexibility enabled Parliament to adopt a definition of harassment which could in certain circumstances cover third-party harassment (i.e. where an employer’s conduct in failing to take steps to prevent harassment by a third party was itself related to race) and that it was not bound to impose liability on the employer where such conduct is unrelated to race.
47. On this aspect I am in agreement with Ms Monaghan that if the Race Directive, properly construed, did impose liability on employers for third-party harassment irrespective of any relationship between the employer’s conduct and race, the flexibility afforded by the final sentence of Article 2 (3) would not entitle the UK to dilute that liability so as to amount to something different. I have found, however, that the Article 2 (3) of the Race Directive does not have the effect contended for by the Claimant. Therefore, any flexibility afforded by that Article in defining the concept of harassment does not need to be invoked; there is no requirement to impose liability on an employer for third-party harassment where the employer’s conduct or inaction is unrelated to race.
48. I turn therefore to the next limb of Ms Monaghan’s argument which is that the history of the enactment of provisions addressing third-party harassment demonstrates that Parliament intended to outlaw third-party harassment and did so because it considered that it was required to do so by EU law. Considerable reliance is placed here on the decision of Burton J in the EOC Case. The issue of third-party liability is dealt with at paragraphs 36 to 40 of the EOC Case:
“36. Again the difference between the parties narrowed in the course of the hearing. The Defendant’s position was made clear, in a Fact Sheet on harassment published by the Women and Equality Unit of the new Department of Communities and Local Government, in paragraphs 37 and 38 of the Defendant’s Summary Grounds and in Mr Pannick’s skeleton argument. In the Fact Sheet, published in October 2006, it was stated at page 4:
"Nevertheless, it might be argued, on appropriate facts, that an employer should take steps to protect an employee from third-party actions, which provide an offensive working environment for employees, in respect of which the employer might have some degree of control, and in such a case liability might arise if an employer fails to do so. So, on appropriate facts, the harassment provisions in the [1975 Act] might be interpreted so that where an employer knowingly fails to protect an employee from, for example, repetitive harassment by a customer or a supplier, the employer is "subjecting the employee to harassment"."
37. Similar points are made in paragraph 70 of Mr Pannick’s skeleton:
"Adopting this approach does not necessarily exclude the possibility that an employer could be held liable on appropriate facts for the conduct of, for example, a supplier or customer (or, more accurately, held liable for the violation of dignity or unwelcome working environment brought about by such conduct). It might be the case that an employer could be held liable for failing to take action where there is a continuing course of offensive conduct, which the employer knows of but does nothing to safeguard against. The employer could be responsible for failing to act, albeit not responsible for the third party’s actions in themselves. By contrast, fixing an employer with liability arising from a single act by a third party could go too far."
38. Miss Rose’s primary submission was that the 1975 Act failed to implement the Directive by imposing third party liability. She accepted however the difficulty of such a submission. She referred, in regard to its general reference to the workplace, to Recital 8 of the Directive, which I have already cited in full at paragraph 16 above, and also to Recital (9):
"In this context, employers and those responsible for vocational training should be encouraged to take measures to combat all forms of sexual discrimination and, in particular, to take preventive measures against harassment and sexual harassment in the workplace, in accordance with national legislation and practice."
39. There is an exhortatory Article 1.2.5:
"Member States shall encourage, in accordance with national law, collective agreements or practice, employers and those responsible for access to vocational training to take measures to prevent all forms of discrimination on grounds of sex, in particular harassment and sexual harassment at the workplace."
40. She accepted however that there is nothing explicit, or even arguably implicit, in any of the Articles requiring a Member State to impose vicarious liability on an employer, or indeed liability for negligent failure to take steps, such as were expressly found by the House of Lords in Pearce not to exist in the present discrimination legislation. It became apparent in the course of her submissions that her real best position was that which she soon adopted, namely that, whereas the position taken by the Defendant, by reference to the passages in the Fact Sheet and the skeleton referred to above, would, at any rate from her point of view arguably, constitute adequate compliance with the Directive, yet on the face of paragraph 4A, as it stands, it is impossible to see how such a result could be achieved. This once again returns me to consideration of the respective arguments under the first aspect above. So long as s4A is to be framed in terms of unwanted conduct engaged in on the ground of her sex by the employer, it seems difficult, if not impossible, to see how an employer could be held liable simply for even knowing failure to take steps to prevent harassment by others. If, by reference to the disapproved authority of De Vere Hotels, it could have been shown that the employers knew of continuing and/or regular objectionable conduct by Mr Manning, and failed to take any steps to prevent it, it could be said that they were thereby themselves indulging in unwanted conduct (including omission) in relation to sex, with the consequent upsetting effect on the claimant waitress. However, it would seem very difficult to be able to say that such knowing failure on their part would amount to unwanted conduct by the employers on the ground of her sex. However, the result of adopting the associative rather than causative approach to harassment, either by a purposive and transliterative construction such as is urged by Mr Pannick or by its replacement by wording more compatible with Article 1.2.2, as urged by Miss Rose, would resolve the problem. Hence once again the issue, so far as it survives in the abbreviated form which alone Miss Rose now pursues, is bound up with my conclusion on the first aspect.”
41. Ms Monaghan submitted that it is clear from the Government’s argument in the EOC Case, as set out in paragraph 36 therein, that its position was that some cases of third-party harassment may be made out even where the causative test of “on the grounds of” was applicable. It was further submitted that the EOC’s concession, set out at paragraph 40 of the EOC Case, in which Counsel for the EOC accepted that, “there is nothing explicit, or even arguably implicit, in any of the Articles requiring a Member State to impose vicarious liability on an employer or indeed liability for negligent failure to take steps…”, was made in the context of the Government having effectively already conceded that the “on the grounds of” formulation was wide enough to encompass third-party harassment. In these circumstances, when the old s.40 provisions were enacted following the decision in the EOC Case, that must, submits Ms Monaghan, have been on the basis that that was what EU law already required.
42. I do not accept that submission. As the careful analysis of Underhill LJ in Nailard CA demonstrates, the decision in the EOC Case was not to the effect that there was any obligation under EU law to change the statutory language in order to provide for third-party liability: see paragraphs 18 and 19 above. Instead, the introduction of the old s.40 provisions was a matter of Government policy at that time. My conclusions above as to the meaning and effect of Article 2(3) of the Race Directive, are to the same effect: there is no obligation to impose liability for third-party harassment on an employer. The fact that the Government chose to impose such liability for the years during which the old s.40 provisions were in force does not mean that the Government was obliged to do so. Furthermore, the fact that the old s.40 provisions were enacted under s.2 of the European Communities Act 1972 act does not assist the Claimant. As provided for by Article 6 of the Race Directive:
“Member States may introduce or maintain provisions which are more favourable to the protection of the principle of equal treatment than those laid down in the directive.”
51. For all of those reasons, the answer to this issue must be that the Race Directive does require that an employer’s conduct/inaction be itself related to race in order to give rise to any liability for third-party harassment.
If the Race Directive covers third-party harassment, can s.26 (1) the 2010 Act be interpreted to give effect to this?
52. Given my conclusions above as to the scope of the Race Directive, this question does not arise. However, even if it did, it would have been my view that s.26 of the 2010 Act is not susceptible to an interpretative exercise that would encompass liability for third-party harassment. As set out by Underhill LJ in Naird CA, the “negligent failure to prevent another’s discriminatory acts is a very different kind of animal from liability for one’s own: it requires careful definition, and I would expect it to be covered by explicit provision.” To extend the scope of s.26 through an interpretative exercise conducted by the Court would, in my judgment, lead to uncertainty and/or exceed the constraints on such an exercise: see Vodafone 2 v Revenue and Customs Commissioners [2009] EWCA Civ 446, [2010] Ch 77:
“38(b) The exercise of the interpretative obligation cannot require the courts to make decisions for which they are not equipped or give rise to important practical repercussions which the court is not equipped to evaluate: see the Ghaidan case, per Lord Nicholls, at para 33; per Lord Rodger, at para 115; per Arden LJ in the IDT Card Services case, at para 113”.
53. Where liability for third-party conduct is to be introduced, there would need to be careful consideration of the precise circumstances in which such liability should arise: for example, questions as to the kind of conduct that could give rise to such liability, the number of instances of such conduct, whether or not the employer needs to be aware of such conduct and the kind of steps that the employer would be expected to take to prevent such conduct, may need to be addressed in designing an appropriate scheme of liability. In this regard, it is noteworthy that the old s.40 provisions did address some of these questions. In particular, they provided that liability could not be imposed unless the employer “knows that the woman has been subject to harassment in the course of her employment on at least two other occasions by a third party”: see subsection (2)(c) of the old s.40 provisions. The strict liability scheme contended for by Ms Monaghan would go considerably further even than the careful scheme previously devised by the Government as it would impose liability for the first incident of harassment by a third party. I see no reasonable basis on which any Court could deploy an interpretative exercise to develop such a scheme. Such a scheme would, in any event, also be contrary to the “grain” of the legislative scheme as it would seek to impose liability on persons whose thought processes contained no motivational element relating to race. It is well-established that liability for discrimination will depend on the reason why an employer has acted in the way that it did, and that that will generally involve an analysis of the mental processes of the relevant decision maker: see CLFIS (UK) Ltd v Reynolds [2015] EWCA Civ 439.
54. It was also submitted by the Claimant that the “related to” formulation can be read sufficiently broadly to capture third-party harassment. However, s.26 provides that “A person (A) harasses another (B) if A engages in unwanted conduct related to a relevant protected characteristic...” That means that unwanted conduct unrelated to a protected characteristic will not amount to harassment. It is difficult to see how even a broad construction of this provision could impose liability on an employer whose actions are found not to have been related to a protected characteristic (as was the case here).
*If s.26(1) of the 2010 Act cannot be read and given effect to conform to the requirements of the Race Directive, does the relevant provision of the Race Directive have direct effect?*
55. In light of the conclusion that the Race Directive does not impose the liability contended for by the Claimant, its direct effect does not assist him as there is no such liability for him to directly enforce against any emanation of the state.
*Was the Tribunal, and now the EAT, bound by the decision of the Court of Appeal in Nailard CA?*
56. The answer to this question is clearly, “Yes”. For the reasons set out above, there is nothing in Nailard CA which can be said to be inconsistent with, or that amounts to a failure to apply, EU Law.
**Conclusion**
57. Liability for third-party harassment in certain circumstances has much to commend it. However, desirable as such liability might be, in the absence, as I have found, of any obligation under EU law to impose such liability, it cannot be said that the Tribunal erred in law in concluding as it did.
58. For all of the reasons set out above, the Claimant’s grounds of appeal do not succeed and this appeal is dismissed. In the circumstances, the Respondent’s Conditional Grounds of Cross-Appeal (and therefore issues (f) and (g) in paragraph 28 above) do not need to be considered.
**Leap-frog certificate**
59. The Claimant seeks a leapfrog certificate under s.37ZA, of the *Employment Tribunals Act 1996* so that the matter can proceed directly to the Supreme Court.
60. Section 37ZA of the 1996 Act, so far as relevant, provides:
“(1) If the Appeal Tribunal is satisfied that –
(2) The conditions in subsection (4) or (5) are fulfilled in relation to the Appeal Tribunals decision or order in any proceedings, and
(3) As regards that decision or order, a sufficient case for an appeal to the Supreme Court has been made out to justify an application under section 37ZB, the appeal Tribunal may grant a certificate to that effect.
...”
61. Section 37ZC provides for certain exclusions to s.37ZA. The relevant one for present purposes is that contained in subsection (3):
“(3) Where no appeal would lie to the Court of Appeal from the decision or order of the Appeal Tribunal except with the leave or permission of the Appeal Tribunal or the Court of Appeal, no certificate may be granted under section 37ZA in respect of a decision or order of the Appeal Tribunal unless it appears to the Appeal Tribunal that it would be a proper case for granting leave or permission to appeal to the Court of Appeal.
62. It is not contended that the decision in this case relates to a matter of national importance within the meaning of s.37ZA(5). Therefore, the issue is whether the conditions in s.37ZA(4) are satisfied, whether a sufficient case has been made out for an appeal to the Supreme Court and whether any of the exclusions under s.37ZC apply.
63. As to s.37ZA(4), there are two alternative conditions that may be satisfied. The first is that a point of law of general public importance is involved, that point of law relates wholly or mainly to the construction of an enactment or statutory instrument and the point is one which has been fully argued in proceedings and fully considered in the judgment of the EAT. As to this condition, I have already found, under issue one above, that the appeal does involve a point of law of general public importance. Furthermore, the point of law is one that is mainly related to the construction of an enactment – namely the Race Directive - and it has been fully argued before me (albeit by way of written submissions on the part of the Respondent). However, I am not satisfied that a sufficient case has been made out to justify an appeal to the Supreme Court. The Claimant’s principal argument is based on a construction of the words “take place” in Article 2(3) of the Race Directive. I have rejected the Claimant’s interpretation of that phrase for the reasons set out above. I do not consider that the Claimant’s construction would have any real prospect of success if it were to be considered by a higher court. That alone is sufficient to regard this appeal as not satisfying the requirements of s.37ZA(1)(b). The discretion to grant a certificate does not therefore arise. I also note that the argument based on the words “takes place” was not one considered by the Court of Appeal in Nailard CA (or by the High Court in the EOC case). Accordingly, although I am bound by Nailard CA, it cannot be said that the point as it emerged before me has been fully argued before the Court of Appeal so as to dispense with the need for any further consideration of the point before going to the Supreme Court. It seems to me that, if the point had any real prospect of success, it is one that ought to be considered more fully by the Court of Appeal before going to the Supreme Court.
64. In any event, given my view as to the prospects of success of any appeal, this is a case where the exclusion under s.37ZC(3) applies. It is not a proper case for granting permission to appeal to the Court of Appeal. Any permission would have to be sought directly from the Court of Appeal.
65. The request for a leapfrog certificate is therefore refused.
66. Finally, I would wish to record my gratitude to Ms Monaghan for her expert and even-handed oral submissions and to Ms Connolly for her extremely helpful written submissions.
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3faa40769c03099c0d0e32e5c742ddcc391cc83f | EMPLOYMENT TRIBUNALS
Claimant: Mr M Okpapi Respondent: ISS Facility Services Ltd
Heard at: East London Hearing Centre On: Wednesday to Friday, 11-13 September 2019 Before: Employment Judge Prichard
Representation Claimant: Ms M Hodgson - counsel, instructed by Judith Maurice Solicitors, Edmonton N9 Mr E Ajaku, legal representative Respondent: Mr O Tahzib - counsel, instructed by Ms N Philp, solicitor ISS UK Ltd, Weybridge
RESERVED JUDGMENT
The judgment of the Employment Tribunal is that: -
(1) The claimant’s claim for constructive unfair dismissal fails and is dismissed. The claimant was not constructively dismissed.
(2) The claim for arrears of pay succeeds in the sum of £1,624.32.
(3) The claim for accrued holiday pay fails and is dismissed. The claimant has been paid his full entitlement.
(4) The claim for overtime pay for 3 days fails and is dismissed. Overtime was not a contractual entitlement for 11 to 13 March 2019.
(5) The claim for notice pay fails and is dismissed. It was dependent on the success of the constructive dismissal claim which has failed.
(6) The claim for race discrimination is dismissed on withdrawal by the claimant. REASONS
1 The hearing got off to a shaky start. The tribunal could only find one lay member to hear what we still thought was a race discrimination complaint. The respondent was anticipating a race discrimination complaint at this hearing. When they received the claimant’s witness statement they found no mention whatsoever of race discrimination so they queried this. Finally, it has only been clarified at the start of the first day of the hearing the claimant is not pursuing a race discrimination complaint any more, and has withdrawn that claim. What was left was therefore the constructive unfair dismissal and the freestanding money claims, all of which could, and should, be heard by a Judge sitting alone.
2 The claimant worked for the respondent, ISS Facilities Services Ltd and its predecessor (Mitie) on this contract, from 31 May to 3 September 2018. He resigned by letter dated 9 August 2018 stating that the 3 September 2018 would be his last day of work.
3 He worked at 1 Churchill Place, the global headquarters of Barclays as a security guard on a salary of £27,000 per annum on a 48-hour week. Typically, he carried out day and/or night shifts 12 hours 4 on 4 off, changing at 7am and 7pm.
4 ISS has a very large contract with Barclays International in 1 Churchill Place. They provide not just security but catering, cleaning, logistics and engineering services. ISS is an international Danish based company. They have a global contract with Barclays in 24 other countries; spend is about £350m globally, £150m in the UK.
5 It is above the usual run of security operations. I have been shown the “daily Roll Calls” for the dates 24 March 2017 and 9 March 2018. Just give an example, the 24 March Roll Call in 2017 mentioned the very recent Westminster Bridge terrorist attack and also highlighted that there may be anti-fracking protesters visiting 1 Churchill Place. There is often photographic ID of people who are seen as possible security threats whom security guards need to report to the security control room if they are seen within the building or nearby. The 9 March report mentioned urban explorers, people scaling buildings at the Marriott nearby, and a man, presumably a customer, who had threatened to take his own life on Barclays premises. He said he had not been repaid money he said was owed. There were also possible bomb threats. At that stage the national threat level for terrorism had been reduced from critical to severe.
6 The claimant’s line manager was Mr Dave Gooda who in turn reported to Paul Bowler. Above him was Ray Perotte, UK Corporate Director for ISS Barclays who reported to James Lester who at the time was the Managing Director for ISS Barclays UK. I have heard from all those individuals apart from Mr Bowler. They were all witnesses at this tribunal.
7 On a rough count of heads there were 12 guards approximately on the ground floor at any one time. The layout is that their Security Operations room is at Level minus 2, the Security Control room is at minus 1. Mr Gooda spent most of his working day in the Security Operations room at minus 2. At that level there is the guards’ Mess Room, and all the ISS staff lockers. 8 The claimant and the respondent’s witnesses agree that about 50% of people coming into the building come in through the swing bridge which is on the west side of the building. About 30% come in through the elevators which are on the south west side, which connects to Canary Wharf, Jubilee Line tube, and 20% enter through the rotating doors which is the main front entrance.
9 In the middle of the floor is an oval shaped reception desk which has 5 or 6 receptionists on it. There are 3 banks of lifts (as not all lifts serve all floors). Each bank has a security guard standing on duty outside the electronic access barriers that lead to the banks of lifts from the main reception floor area.
10 There were 5 or 6 receptionists in the main central reception; then 2 on the Wealth desk, 1 on the Events desk just inside the west swing bridge entrance and 1 on the south-east corner at the Tenants desk access.
11 The claimant did not have a good disciplinary record. As stated above, Barclays faces security threats on an almost daily basis; either personal to Barclays, or more generalised terror threats. The vigilance level is set high. I was shown a succession of site memos, and I have seen rotas.
12 Staff are rostered to different positions every 1 hour of their 12-hour shifts. Once security guards are in their positions, they cannot be relieved unless they have consent from a supervisor or manager. If they need the toilet, they need to notify the Security Control room to be relieved. They have to keep their radios on all the time. They must be at their positions at the time they are due to start in those positions.
13 All staff have 2 paid breaks in the course of a 12-hour shift, so they never work more than 4 hours without a break for the purpose of working time legislation. There is an obvious rule about mobile phones, iPlayers, DVD players, and laptops etc. They are not to be used while on duty regardless of position. All personal bags are to be left in the staff lockers. (The claimant’s mobile phone will come relevant in the 9 March 2018 incident described below). If the rules were to be stated in a nutshell, staff have to be smartly presented, punctual and vigilant at all times. The site is open, and covered by security 24/365.
14 Ryan McLaughlin took over the claimant’s line management around June 2014. This was long after ISS took over from Mitie in October 2012.
15 On 6 June 2014, Mr Martin, then the Security Control room manager, stated that he had seen the claimant sleeping in the car loading bay. Mr Martin asked why he was not in position at the reception area. Apparently, the claimant flew into a rage so Mr Martin reported this as totally unacceptable behaviour. It was on a night shift. (This was part of a pattern that will emerge in the narrative that the claimant seems capable of flatly denying incidents that have been caught on CCTV, and by photographs. There was a picture of the claimant asleep in the car loading bay in the security cubicle).
16 For lower level and early issues of breach of standards the respondent issues “advice and counselling forms”. If it goes beyond that matters will be escalated to formal disciplinary investigation under the respondent’s disciplinary policy. This is what happened to the claimant for the sleeping incident.
17 Mr McLaughlin was the Security Control Room Manager for ISS Barclays. He had an investigation meeting on 17 June, this was recorded on a pro forma investigation meeting template in the presence of a formal note-taker. The claimant completely denied that he was asleep despite the fact his eyes appeared in the photograph to be tight shut. (This was a case where Mr Martin had taken a photograph of the claimant, it was not just a matter of using stills from the CCTV).
18 There was a disciplinary hearing held on 7 July at level minus 2. The charges were:-
18.1 being asleep on 5 June at 23:55; 18.2 not being on position on 6 June at the main reception area at 00:35; and 18.3 total lack of respect for the manager on site.
19 As there was no other witness to the claimant allegedly losing his temper with David Martin, the disciplinary officer, who in this case was Dave Gooda, the Security Operations Manager, did not make a finding but he upheld the other 2 allegations - being asleep and not being in position. He imposed a final written warning dated 15 July 2014 which would remain active for 12 months.
20 The claimant appealed against that warning by letter of 19 July. He made points about “..... data protection, the privacy in electronic communications, EC Directive Amendment Regulations 2011, laid before Parliament 5 May 2011, coming into force 26 May 2011”. I only quote that because it has been of a piece with certain submissions made by and on behalf of the claimant later at this hearing. The alleged breach of data protection is the act of taking photographs of him. (There was subsequent photographing of him allegedly using a mobile phone on duty).
21 Later the claimant withdrew his appeal against the final written warning, by notice of 3 August:
“From all the evidence before me and with the utmost love and respect, I have decided that the security and success of all employees at Barclays and other companies operating at 1 Churchill Place are paramount and are therefore glad this issue closed with immediate effect from today.”
22 That final written warning expired despite the fact there was a further misconduct of a very different character when the claimant persistently bothered Chris Stocker, the Scheduler, concerned that he was not getting enough pay and other scheduling issues so much so that Chris Stocker told the claimant to take it up with Ryan McLaughlin, as he could not deal with it.
23 The claimant’s response again was to completely deny this. The charge was that on 27 February 2015:
“Michael, although asked by the Scheduler to see me, continued to badger the Scheduler in reference to his missing pay. Although I sympathise with Michael he must go through the correct channels and not badger other staff who are powerless to help him”. The claimant’s response, written empathically in capital letters, was: “IT IS A LIE I NEVER FOUGHT ANYBODY OVER MY PAY”. A decision was made not to trigger the final written warning on this because it was of a different character and could be seen as relatively low level. It did not relate to a security breach which is the most serious.
Two further minor incidents were noted: (1) for his appearance having his hands in his pockets on duty, and (2) wrongly stopping a car when it was on the list issued of authorised car park users. The claimant this time apologised and stated it was due to an oversight. It was the first time this had happened with him and he apologised to the car-user in question. Again, this was not a security breach – the opposite.
In April 2016, there was a further incident where the claimant had been spotted reading a magazine leaning against a wall, neither of which is permitted. He was taken to a formal investigation meeting with Mr McLaughlin where he showed him CCTV footage showing that he was reading a magazine for 15 minutes and the claimant completely denied it. He denied knowing that he was not allowed to lean on duty, and stated he was only scanning the magazine in order to read it later on his break.
Nonetheless as it involved a security breach, and lack of vigilance, Mr McLaughlin recommended it go forward to a disciplinary hearing. It did, and took place again before Dave Gooda, Security Operations Manager, and the outcome was a first written warning on 5 May 2016. Despite his initial denial of the charge he displayed regret and remorse at that disciplinary hearing otherwise the sanction might have been more severe.
Then there was a further incident, less than a year later, in March 2017. This incident had been reported by Ray Peyrotte who is the UK Corporate Director for ISS Barclays, based at 1 Churchill Place. It was Mr Peyrotte’s practice to walk around 1 Churchill Place checking that standards were being adhered to across all the services that ISS supplied to Barclays.
There had been 2 consecutive days, 23 and 24 March 2017, and it was exactly the same problem both days, the claimant was meant to be on duty at the Events desk, just inside to the left of the west swing bridge entrance. Apparently, the optimum position to stand is where you have visibility of the access barriers to the left, the events reception itself, and then across the main floor, with total all round vision of the swing bridge entrance, the Events desk, and the full floor. On this occasion he found the claimant leaning on the events desk apparently talking to the Events receptionist there called Kasia, laughing and joking. That is what Mr Peyrotte reported. He told the claimant he should be where he could see the west swing bridge, not with his back to it. The claimant had said something about handing back passes that had been handed in, and protested his innocence. Mr Peyrotte told him it was not acceptable.
The following day, the claimant was rostered there again and, at almost exactly the same time of day, 17:45 when Mr Peyrotte came down in the lift, he walked round to events reception and noticed that no-one was on the post where the claimant should have been. He was again at events desk chatting to the receptionist and facing away from the west swing bridge entrance. This prompted Mr Peyrotte to send an email to Messrs McLaughlin and Gooda, on 3 April, recommending the incidents be formally addressed.
31 The claimant was very clearly caught on CCTV, and the stills were included in the tribunal bundle. It was 2 days after the terrorist attack on Westminster Bridge, when there were still known terrorist threats. Guards had to report identified suspects if they entered the buildings. The claimant was shown the CCTV coverage in the course of an investigation meeting with Mr McLaughlin who again recommended it go forward to a disciplinary hearing, which it did, again in front of Dave Gooda.
32 One needs to point out that Mr Peyrotte, from whom the information against the claimant came, is himself black. The claimant is of black Nigerian origin. Mr Peyrotte is black, of Caribbean origin. The claimant later referred to antagonism between Jamaicans and Nigerians as, coincidentally, it was Mr Peyrotte who is a senior manager, who just happened to have seen the claimant in breach of security on 2 consecutive occasions in March 2017, and then again in 2018 (below). This is how the race discrimination complaint originated although, as stated above, it is no longer pursued here. It was mentioned and developed by the claimant in workplace procedures, both disciplinary and grievance.
33 The upshot of the 2016 disciplinary process was that Dave Gooda issued a final written warning which was due to expire on 4 May 2017. These new incidents were within one year of the first written warning for reading a magazine and leaning on the wall. Mr Gooda’s decision to issue the final written warning was that it was conduct of the same character exactly – failure to pay attention whilst on duty – aggravated by the fact that it took place over 2 days when Mr Peyrotte had warned the claimant on the first of those 2 days.
34 The claimant says that following the final written warning in 2016 he never appealed. He stated that Dave Gooda had said to him it would only stay on his file for a year and that he should just forget about it. Dave Gooda at this hearing emphatically denies that accusation and says he would never advise one of his security guards in that way. The guards have a right of appeal and that right is real. They must be allowed to exercise it without being dissuaded or improperly influenced by management. I accept Mr Gooda’s evidence. As an apparently professional and conscientious manager, he takes his role seriously. He is responsible for hundreds of staff.
35 The next incident was on 9 March 2018. It was between 1 and 2pm on turnstile 1 which is by the access barriers to the low-rise lift bank on the left-hand side as you look at it from the main front revolving doors. The purpose of that duty is to mind the barriers to ensure that nobody tailgates someone through the barriers. It was a day when there were specific threats on the roolcall which the guards had to look out for, including an individual threatening to take his own life, and another who wanted to bring the media with him.
36 Mr Peyrotte was sure he could see the claimant looking at his mobile phone apparently oblivious to what was going on around him. Mr Peyrotte noticed he was looking at it in a sustained way from the time he was spotted and moved towards him and took 3 photographs without the claimant knowing. He says he took the photographs because he was unsure of the precise position of the CCTV in that area, and did not know what the coverage would be. The CCTV had turned out to be good for the purpose of the events desk incident the previous year. It turns out it was not so good for this because the only cameras were mounted on the wall of the lift bank, on the far side of the barriers and would only catch the claimant’s back. Mr Peyrotte took 3 photographs as he moved towards the claimant. They are grainy because they are digitally zoomed on his phone. But it looked like a black mobile phone in the claimant’s hand, from the photographs which had been included in the bundle I was given. The claimant appears to be reading it in the photos.
37 Mr Peyrotte has been clear throughout these proceedings, and I accept his evidence, that the reason he took these photographs specifically was that in the incident of the previous year he had effectively been accused of lying about the claimant’s whereabouts despite the clear CCTV evidence of the claimant leaning against the reception desk. He was therefore aware that the claimant was most unlikely to make any admissions.
38 The claimant has made a huge issue in these proceedings of breach of his privacy and data protection by the act of taking a picture of him on a mobile phone. He also, bizarrely, invokes the fact that the public are not allowed to take pictures within 1 Churchill Place. Yet, it was different for Mr Peyrotte. Obviously, he is a senior manager with a works mobile and frequently takes pictures all around the building if he wants to report faults with lifts, leaks, or, on this occasion, staff breaches of security. (Without getting too far ahead of myself I considered that the claimant’s argument over privacy and data protection to be hopelessly flawed as I explain below).
39 Mr Peyrotte asked the claimant’s line management to take it on. It was not for a manager as senior as Mr Peyrotte to take it on himself. Mr Gooda asked if Mr McLaughlin could once more investigate. He had already been called away on some emergency so he asked Michael Alexander, who was an Access Control Manager, at Barclays. He carried out an investigation. Mr Gooda asked Mr Alexander to look at the CCTV and he noted that on the CCTV footage the claimant had taken out something from his pocket and, seen from the back, he put it away. But he took it out again and then appeared to look at it again for between 1 and 2 minutes before putting it away. Apparently, he had just been looking at it, and not doing much else. There was no conspicuous tapping, as there might be for composing a message.
40 At the stage Mr Alexander had been looking at the CCTV, the claimant was on one of his 1-hour breaks between 2 and 3pm. He was at Level minus 2 in the Mess Room. Mr Alexander asked him to come with him. They had an investigation meeting lasting 20 minutes. The claimant said he had looked at his phone to look at the time. This was a significant thing to say, because later he denied that it was a mobile phone at all. He said he needed his phone to see the time because his watch was not working.
41 He said he was not sure if it was him in the CCTV footage despite the fact that the rota put him there on that position at that time. You can see enough in the background to the photograph to recognise where the claimant was standing. You could see the barriers/turnstiles in the picture. The claimant said he was looking at his phone for 1 or 2 seconds. However, the was shown the same CCTV that Mr Alexander had reviewed which suggested he was looking at it for 1 – 2 minutes.
42 The notes of that meeting were taken by Chris Stocker referred to above, he was the site Scheduler (to whom the claimant had allegedly made complaints about his pay and other scheduling issues back in 2015).
43 During the course of this hearing and for the first time the claimant has suggested that the handwritten notes of Chris Stocker that are included in the bundle are “forgeries” (sic). Mr Alexander formed the view that the claimant was not being honest again because the CCTV footage shows, even though from a distance, the claimant was looking at the object for between 1 and 2 minutes.
44 The claimant’s account of the “phone” varied greatly during the course of proceedings and this hearing, which did nothing for the claimant’s credibility. At the end of the meeting on 9 March the claimant was suspended. This was confirmed to him by a later letter on 14 March.
45 Subsequently, Mr Alexander carried out another investigation. The reason for a second investigation was that he contacted Emily Whitehouse-Ford of HR to check that he was doing this the right way. Ms Ford suggested to him that there be an extra investigation in order to check whether the claimant knew about the site rules and just to give the claimant a chance to reflect on his conduct, and another chance to explain himself. So, there was a further investigatory interview on 6 April at 5pm, this time noted by Mark Hall who was another Security Control Room Manager similar to Mr McLaughlin.
46 The claimant was shown the photographs and denied it was him. He denied it was a mobile phone as the picture was not clear. He said he never took his phone out of his pocket. He said he never brought a phone to work, and that it could not have been him holding a mobile phone, because he does not have a phone that works and it had been locked since 2016. Exactly what the claimant meant by “locked” is not clear. He did not seem to me, on questioning him, to know what he meant by it himself. It is certainly not what most people understand by the word “locked” in the context of a mobile phone (linked exclusively to one network). The claimant later suggested the phone was not connected to a network at all.
47 The claimant confirmed in answer to a specific question that he did understand that mobile phone use was not permitted while on duty and that he recalled he had signed the documents stating that he knew it was not permitted – the memorandum referred to above which is clearly signed by him in the bundle. Allegedly, according to Mr Alexander, the claimant started ranting and repeating himself. The meeting became heated, so Mr Alexander brought it to a close. He recommended to Mr Gooda that there was a disciplinary case to answer.
48 It has been a controversy at this hearing as to whether Mr Gooda instructed Mr Alexander to suspend the claimant earlier on 9 March. On balance I find that Mr Gooda, who was very used to this process, asked Mr Alexander to investigate with a view to considering suspension on 9 March. Much was made of the policy that no disciplinary action can take place until full investigation has been done. In this case I consider there was adequate investigation on the 9 March when the suspension took place.
49 The second investigation meeting on 6 July just strengthened the case against the claimant in that he was now seen to be giving inconsistent explanations and coming nowhere to admitting what seem overwhelmingly likely, given that the photographs show him looking at some device with his head angled to read that device, by the turnstile/barriers for the low-rise lifts, turnstile 1. He told Mr Alexander at the second disciplinary hearing that he had never owned a black phone and he pulled out a white iPhone.
50 The claimant was subsequently invited to a disciplinary hearing on 8 May by letter of 1 May. Subsequently he sent a formal written grievance on 4 May in advance of the scheduled disciplinary hearing.
51 The grievance was drafted by Duncan Lewis Solicitors, Harrow. In it there was the remarkable suggestion that the claimant was not holding a phone at all but a calculator. The claimant was insistent that everyone should see this calculator at this tribunal hearing. Oddly, it is a scientific calculator, with cube roots, tangents cosines and other trigonometrical and algebraic functions, and π. He told the Judge in answer to questions that he has that calculator because he has a BSc in financial economics from Birkbeck University of London and he uses it for “financial engineering” calculations. The calculator is black and looks similar, judging only from the appearance of the photographs, to the object in the claimant’s hands there.
52 It was not in the body of that complaint but only later in interview with Ciaran Greaves that the claimant raised the question of race discrimination by Mr Peyrotte. He has developed that allegation against Mr Peyrotte at this hearing saying that Mr Peyrotte was responsible for getting him his final written warning. Mr Peyrotte knew what the 12-month period was, and had been determined to catch the claimant out sometime within the 12-month period to bring about his dismissal. He described in detail the animosity between Jamaicans and Nigerians. He relates it back to the history of slavery.
53 Mr Greaves is a very senior manager. He is the ISS Global Operations Director now providing services to HSBC. Before that, he worked as the Account Director for ISS Barclays contract for Europe and Middle East. As the grievance was against a senior manager, Ray Peyrotte, it had to be conducted by a more senior manager, hence Mr Greaves.
54 For the same reason, (and I asked Ms Ford about this), the disciplinary process was parked pending resolution of the grievance. I said to Ms Ford that was quite kind of the respondent. She said she agreed, and that it would not always be their way, but on this occasion, since the claimant had complained about such a senior manager, it seemed the better course to take.
55 At an investigation hearing before Mr Greaves on 24 May, the claimant added the further allegation that Mr Alexander had grabbed him by the collar when taking him to an investigation hearing. The investigation extended then, to see if there were any witnesses to such an event. It turns out there had been. This occasion was also witnessed by another security guard who had been in the mess room called Kamal who coincidentally was Nigerian too. She gave a statement to Ms Ford saying that she was not at all aware that Mr Alexander had grabbed him by the collar. That is why that other element of grievance was not upheld. Mr Greaves interviewed Ray Peyrotte and the claimant for the purposes of his hearing.
56 Mr Greaves sent an outcome letter on 31 May upholding none of his complaints. I can take this quite swiftly as there is no longer a complaint of race discrimination. It was anyway a very weak complaint because there were other Nigerian security guards who were not targeted. Furthermore, it is interesting that the earlier photograph that had been taken in 2014 of him asleep in the security hut had been taken by a white individual, and he never mentioned a race complaint then despite his outrage at the breach of privacy / “data protection”. He seemed to consider that one person texting that photograph to another person involved “putting the photograph on the internet”, which is a weird perception of the normal workings of mobile telephones and IT generally (barring sophisticated hacking which is not suggested here).
57 Following that outcome letter, the claimant appealed. The appeal was heard by James Lester was a witness at the tribunal. He was the Managing Director for ISS Barclays in the UK, at the time of the grievance appeal. The grievance appeal was submitted again from Duncan Lewis. The appeal meeting took place on 5 July. Again, the claimant was unrepresented (Duncan Lewis were not permitted to represent the claimant). The claimant stated that none of his colleagues were prepared to get involved.
58 The only concession Mr Lester made was in relation to the taking of the photograph. The respondent has, in fairness, been more uneasy about it than I was. Mr Greaves said:
“when the picture was taken and sent it was not deemed to be a breach of data protection because the picture was necessary and in relation to work for internal company processes”.
Mr Lester stated:
“In my view this point is very clear and you were unable to demonstrate that there should be a different view. However, I would not want it to be normal practice for photographs to be taken of any employee and I would raise this with my UK management team.”
It is clear that the claimant put forward no evidence for his grievance appeal. It was dismissed.
59 Thus, by letter of 8 August the disciplinary hearing was formally restarted. At this stage the respondent knew the claimant was claiming that it was in fact a scientific calculator and not a mobile phone in his hand. The restart letter again referred to it as a “mobile phone”, a point of which much was made at this tribunal hearing. Ms Ford explained, to my mind perfectly satisfactorily, that the grievance process and the disciplinary process were separate processes. The respondent did not want to import evidence from one process into the other process. It was up to the claimant to raise it at a disciplinary hearing if he was about to say that it was not a mobile telephone, as he never raised the calculator point until the grievance meeting, (not even in the grievance letter). It was first raised orally at the grievance hearing with Ciaran Greaves. It cannot be any coincidence that the day after the disciplinary process restarted, on 9 August 2018, the claimant resigned by a letter addressed to James Lester. He made the same complaint about data protection. The focus of his resignation letter was on Ray Peyrotte. The claimant has a way of lapsing into grandiloquent legalese when writing such letters. The resignation letter clearly came from him and not from Duncan Lewis. He attached to it a lot of the disciplinary evidence that had been used against him, including rotas, video stills from the March 2017, incident but oddly none of the photographs relating to the latest incident with the phone / calculator.
The resignation letter clearly states that the claimant’s last day of employment would be 3 September. Why he chose that date, goodness knows. It is not as if he had another job to go to. He did not, as we have been told.
Despite the claimant’s resignation, a disciplinary hearing was nonetheless held by Chris Phillips who was not a witness at this tribunal, but he provided a witness statement for the tribunal. The claimant had elected not to attend the disciplinary hearing. Mr Phillips sent a disciplinary outcome letter on 28 August 2018 which contains the important conclusion as follows:
“However, based on previous investigation minutes on 9 March where MO accepted that he used the phone on duty, on balance I believe this is MO and that he is distracted from his duties whilst on position, whether holding a phone or a calculator…
Furthermore, I do believe MO’s honesty and integrity are called into question by the fact that his first 2 investigations had conflicting answers and then today again a further conflicting statement with regards to holding a calculator whilst on duty. This is something I would have wanted to cover further with MO. I have also taken into consideration MO’s previous disciplinary records that shows this is not an isolated incident …
I recognise that MO has resigned with notice with his final day of employment being 3 September 2018 also that at the time of the incident on 9 March 2018 MO also had live final written warning on his record. Therefore, on balance my decision would fall to a contractual dismissal but due to 4 working days being left of his notice I have decided to accept his resignation and run on that basis and not formally dismiss due to this.”
There have been several serious credibility problems for the claimant, other than the ones mentioned above. The claimant stated categorically at this hearing that he had never failed to attend a hearing the respondent. Whatever the reason for it, that is simply not true. There was no need, in the logic of his case, for him to commit to a statement like that.
On the disciplinary hearing for the 23 and 24 March incidents (where the claimant was leaning on the events desk chatting to the receptionist), the claimant did not attend. Originally there was a hearing set for 7 April, the claimant asked for a postponement to seek legal advice, the hearing was re-arranged for 24 April and the claimant was also asked to send in amended investigation notes if he challenged them and told him that if he did not attend the re-scheduled meeting a decision would be made in his absence. He simply did not attend. Mr Gooda contacted the Security Control Room to see if the claimant had called in and, having been told that he had not, he went ahead with the hearing in the claimant’s absence. The claimant’s explanation of this at this hearing was quite extraordinary and impossible to accept. He said that he had been at work on duty in the car park and that if he had left his position in order to attend a scheduled disciplinary hearing he would have been sacked on the spot. That evidence is weird. It is obvious that if the Security Room did not know that he had a scheduled disciplinary hearing to attend that he should have radioed and said that he had a pre-arranged meeting with Dave Gooda to attend. Cover would have been arranged for him to be relieved from car park duty. The claimant left the tribunal with the impression that he simply ducked attending that hearing hoping he might later challenge it by the fact that he had not been relieved from duty (even though he never asked).
Other aspects of the claimant’s evidence at the hearing were bizarre. The claimant was asked why he had not said to Michael Alexander at the first 2 investigation hearings Mr Alexander conducted that it was a calculator he was holding and not a phone at all. He responded “nobody asked me if it was a calculator”. That was a ridiculous statement. That it should have been a calculator was so inherently unlikely, that to suggest somebody should proactively have asked whether it was a calculator is laughable.
Very few people carry calculators of that sort in their pockets, particularly at work. His explanation got more convoluted as this tribunal hearing progressed. There was an account about swapping a coat with an agency guard because some of the duty had been out of doors and there was snow on the ground and it was a heavy uniform coat and he had had to remove items from the pockets. He said his own pockets were full, he has his pocket bible, his personal diary and his pockets were completely full which is why he had to have the calculator in his hand. His jacket hip pockets were sewn up to prevent unsightly bulging in the uniform. Only the breast pockets could be used. I repeat this merely to show I was listening. I found the claimant’s account nonsense. Further, it served no useful purpose, even on the claimant’s own logic.
On that evidence I have to decide if the claimant was unfairly constructively dismissed. First, was he constructively dismissed? Did the respondent commit a repudiatory breach of contract? I cannot see anything remotely approaching a breach of contract.
Even though the respondent has expressed misgivings about the taking of photographs of the claimant. It was not the first time it had happened. It had happened previously in 2014 in exactly the same context and given that the claimant had a history of denying the undeniable. Nothing much less than a photograph would constitute enough evidence for disciplinary purposes.
Conclusions
On the law, the tribunal’s task is to decide whether the claimant was constructively unfairly dismissed under s 95(1)(c) of the Employment Rights Act 1996. He is relying upon a breach of the well-known implied term of trust and confidence, (BCCI v Malik [1997], IRLR, 462, HL), arising from an alleged succession of breaches of contract.
The alleged last straw, if there is one, appears to be re-starting the disciplinary process against the claimant. The case of London Borough of Waltham Forest v Omilaju [2005], ICR, 481, CA is therefore in point here, as is the more recent affirmation of it in Kaur v Leeds Teaching Hospitals NHS Trust [2018] EWCA Civ, 978, CA. The alleged last straw here was amply justified, given the antecedent history. It had been on hold for a long time in order to accommodate the claimant’s grievance.
72 There is a high threshold test for causation under s 95(1)(c) of the Employment Rights Act 1996. The employee must be “entitled to terminate without notice by reason of the employer’s conduct”.
73 Constructive dismissal is judged from the claimant’s point of view with the major proviso that that point of view must be objectively reasonable. I consider that the claimant’s point of view was palpably not, as should be clear from the descriptions above.
74 Under Section 95(1)(c) of the Employment Rights Act 1996, therefore, the claimant has to be entitled to resign “without notice”. (See Western Excavating (ECC) v Sharp [1978], IRLR, 27, CA). Constructive dismissal is the mirror image of gross misconduct by the employer, not the employee. Gross misconduct is also defined as a fundamental breach of the contract of employment. Statistically it is a rare thing to find constructive dismissal at this tribunal. This comes nowhere near to that. The employer’s conduct towards the claimant was patient and restrained, given his persistent and obvious breaches of security.
75 Mr Tahzib, generously, submitted that the claimant appears to rely on 6 breaches in this case. I accept his analysis for the purposes of my own findings: -
75.1 failure to deal with the claimant’s grievance;
75.2 failure to address his complaints regarding loss of pay;
75.3 the respondent suspending the claimant for an unreasonable length of time;
75.4 the respondent inviting the claimant to a disciplinary hearing based on an allegation which they knew was inaccurate (phone not calculator);
75.5 the respondent not informing the claimant if or how using a calculator was a disciplinary offence (calculator not mentioned in the signed memorandum);
75.6 the respondent not subjecting Mr Peyrotte to a disciplinary process for taking a photograph of the claimant.
76 Taking these in turn, the respondent did not fail to deal with the claimant’s grievance; they dealt with it comprehensively, at a high management level, and were fully professional, answering every point the claimant raised. Furthermore, the disciplinary process was completely put on hold pending disposal of the claimant’s grievance and the grievance appeal. The claimant does not say how the respondent could have done better, (other than the outcome). Regarding the pay query, breach no. 2, this was more complex. When on suspension, the claimant was paid full basic pay. It has been established from the contract that overtime, of which the claimant did much in the past, is not a contractual entitlement. Therefore, he was not entitled to earn averaged out overtime on suspension pay as he might have been in a claim for accrued averaged out holiday pay under EU law. Because he worked 4-on 4-off shifts, his fortnightly payslip total was hardly ever the same. He worked for the A team. When he was off on suspension he was tracked to the A team. Because the suspension had lasted for 6 months from 9 March 2018 to 3 September, the last day worked, the claimant had 6 months’ pay due at basic rate.
I advised the parties that the most accurate way to analyse this would be a fortnight by fortnight tracking of the A team, to check if, in every 6-month period, he would have half a year’s basic pay. This exercise resulted in the partial success of the claimant’s arrears of pay claim as above. It depended on the precise incidence of dates when the suspension started (relative to the 4-on / off shift pattern) and when dismissal took effect.
However, the basis of this assessment was first suggested by myself. It was never part of the claimant’s allegation about underpayment which was a far more extravagant one, and without any legal merit, because he had failed to appreciate the necessary discrepancy in fortnightly payslips that resulted from the 4-on / off pattern and how it meshes in with individual calendar fortnights. His was a completely misconceived contention.
The respondent was not in breach of that, but the exercise suggested by me revealed that there was a discrepancy, although way smaller than the claimant was claiming. In that event I do not consider the respondent to be in breach of the term to pay the claimant correctly in any substantial or fundamental way. It was a technicality. The claimant simply failed to understand the basis of his pay periods and put a false case to the respondent, which they rightly resisted, even though there was ultimately an arithmetical discrepancy on a final, and wholly different, analysis.
The point of this, for the purpose of constructive dismissal law, is that the actual discrepancy cannot, subjectively, have been the cause for the claimant resigning, because the claimant was claiming far more, on a false basis. If, hypothetically, he had put my analysis to the respondent, they would doubtless have readily agreed, as they have here. The causation for a resignation is one of the indispensable Western Excavating criteria for constructive unfair dismissal. This alleged breach therefore fails.
Breach number 3 is the respondent suspending the claimant for an unreasonable length of time. I cannot possibly uphold that. The claimant asked for certain delays for his own benefit, but above all, he decided to raise a grievance, they generously decided to take the grievance first, at a high level of management, and to deal with it completely, including an appeal, before re-starting the disciplinary process. This was all to the claimant’s benefit. He would have been quick to complain if they had not done so.
Allegation 4, about the phone / calculator, is a ridiculous allegation. It is technical, over-literal, and nugatory. Just because the policy states because the signed memo states: “Mobile phones, iPlayers, DVD players and laptops etc. are not to be used while on duty regardless of position”. How that would not include scientific calculators by the use of the word “etc”, I do not know.
84 Allegation 5 is just as ridiculous. Holding anything that distracts one and stops one from being vigilant is a disciplinary offence. Mr Gooda apologised to the tribunal for his seeming flippancy when he said: “It could have been a bunch of bananas”. The point is the claimant was distracted and not vigilant while on duty.
85 Breach 6 was not subjecting Mr Peyrotte to disciplinary process. This, again, is an absurdly extravagant alleged breach. Mr Peyrotte was not in breach of data protection so far as I can see, nor as Mr Greaves or Mr Lester could see. All his actions were in the course of work, for legitimate (disciplinary) business purposes. The information was treated in confidence. The claimant’s image was not “put on the internet” as explained above. It was texted via SMS to local management. Any third party seeing those grainy pictures would not have understood their significance without the context of security, and could hardly have cared less. That whole contention is hyperbole.
86 The claimant has not come anywhere near to establishing a breach of any sort let alone a fundamental breach of his contract of employment, either cumulative or on individual breaches. His claim for constructive dismissal therefore fails.
87 It was accepted by the end of this hearing that the claim for accrued holiday pay must fail because it could be seen that the claimant was paid his full entitlement up to and including 3 September, his chosen termination date.
88 I have dealt with the arrears claim, and how that was worked out over a 6-month period of the claimant’s suspension, worked out precisely fortnight by fortnight, and day by day, tracking the A team, the claimant’s team.
89 It is clear from the claimant’s contract, a Mitie contract, that there was no contractual right to overtime. Overtime pay could therefore not be included in the claimant’s suspension pay.
90 For all those reasons the claimant’s claims other than the above claim for arrears of pay all fail and are dismissed.
Employment Judge Prichard
Dated: 02 December 2019
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3e26689f264cb1daf5a7fec6a3dc4d3ce8d64993 | RECONSIDERATION JUDGMENT
The judgment sent to the parties on 12 October 2016 is confirmed.
REASONS
The judgment sought to be reconsidered
1. At a Preliminary Hearing on 7 October 2016, I had to determine whether the claimant was a worker and the respondent his employer within the meaning of Section 43K of the Employment Rights Act 1996. In a judgment announced at the hearing and sent to the parties on 12 October 2016, I found that the claimant did not fall within this definition and accordingly that the Tribunal had no jurisdiction to consider his claim. On 22 November 2016, written reasons ("the Reasons") for the judgment were sent to the parties. Abbreviations in this document are explained in the Reasons.
2. One of the arguments advanced by the claimant at the Preliminary Hearing was that he had signed a written contract of employment with Red Rock. I shall refer to this contract as the "RREC". At paragraphs 5.2 and 11.2 of the Reasons I rejected the claimant's contention. Paragraph 5.2 expressed my view that the claimant's evidence in this regard had been unreliable.
The reconsideration application
3. On 6 December 2016 the claimant submitted an application for reconsideration of the judgment. It consisted of two emailed documents each accompanied by attachments. The larger of the two documents ran to 32 paragraphs. Not all of these were easy to follow. It was, however, a clear theme of his application that he had evidence to support his contention that he had signed the RREC.
4. Attached to the claimant's application were the following: 4.1. a copy of the RREC; 4.2. part of a transcript ("the Alicija transcript") of a secretly recorded conversation on 6th December 2016 between the claimant and "Alicija", a worker at Red Rocks Leicester office; 4.3. further schedules to the SJT1 terms; 4.4. a further SMS exchange between 3 and 7 August 2015, in which Mr Thompson requested proof of the claimant's VAT registration and the claimant and Mr Thompson, made arrangements for the claimant's registration with Red Rock.
5. It is now conceded by the respondent that the claimant did sign the RREC on 7 August 2015. As will be seen, however there were several twists and turns in the evidence before the respondent made that concession.
The RREC
6. Here are some of the features of the RREC that I found to be relevant: 6.1. the document was printed on a standard form supplied by Red Rock. 6.2. The template included a blank space where the name of the employee was to be inserted. In handwriting the claimant wrote "SJT1 Limited". 6.3. Immediately below the name of the employee, somebody had handwritten the claimant's date of birth. 6.4. The final page of the document bore the claimant's signature. Next to the signature, the claimant handwrote "Director of SJT1 Limited". 6.5. Below the claimant's signature was a further signature purporting to be on behalf of Red Rock. The signature has never been identified, but is clearly different from that of Mr Thompson. 6.6. Both signatures bore the date 7 August 2015. 6.7. By clause 6 of the RREC, "refusal of a suitable assignment by the employee without good cause may constitute gross misconduct under the disciplinary policy and procedure set out in the employee handbook and may result in the termination of the employee's employment without notice and without a payment in lieu of notice". 6.8. Clause 7 of the RREC required the employee to contact Red Rock by 9 am every Monday morning which he had not worked for Red Rock to discuss whether or not any suitable work was available for the employee. In the event of the employee failing to make such contact, at the designated time, the employee was to be regarded as unavailable for work and to have resigned their employment with Red Rock.
6.9. By clause 12, the employee was entitled to receive the Daily Pay in respect of each day worked payable weekly in arrears. There was no need for invoicing.
6.10. Clauses 35 and 37 of the RREC entitled the employee to take unpaid leave (by prior written agreement with Red Rock) or paid leave (on giving a minimum of two weeks written notice, and subject to Red Rock's right to refuse permission).
6.11. Clause 27 required an employee holding a grievance to present such grievance in accordance with Red Rock's written grievance policy.
Preliminary Consideration of the claimant's application
7. I gave preliminary consideration of the reconsideration application on 20 January 2017. By a written case management order sent to the parties the same day, I observed:
"(2) In my view the claimant's application does have some reasonable prospect of success. If it is correct that the claimant signed a contract of employment with Red Rock at Red Rock's premises using Red Rock's standard terms, it is at least arguable that the terms on which the claimant worked were determined not by the claimant but by Red Rock. The claimant should not raise his hopes too high: the Tribunal will have to consider the effect of the claimant having signed in his capacity as Director of SJT1 Limited and will also have to consider whether the SJT1 terms superseded the contract of employment.
(3) There is however an additional reason why it may be necessary in the interests of justice to reconsider the judgment. As the claimant makes clear in his application, the written reasons for the judgment at paragraphs 5.2 and 11.2 call the reliability of the claimant's evidence into question. If it is true that the claimant did in fact sign a written contract of employment at Red Rock's premises, that particular criticism of the claimant would be unfounded. Bearing in mind that, at the preliminary hearing, the respondent invited the Tribunal to read in full the reasons for a judgment in a different case involving the claimant as being relevant to the claimant's credibility, and also considering that the claimant has brought other claims at which similar considerations may well arise, it is only right that written reasons should not impugn the claimant's credibility when newly-disclosed documents suggests that he was right all along. It remains to be seen whether the respondent accepts or denies that the document recently produced by the claimant was in fact signed on 7 August 2015 by the people whose signatures the document purports to bear. The original document will be an important piece of evidence in this regard".
The reconsideration hearing and grounds for reconsideration
8. The parties attended a reconsideration hearing on 3 February 2017. At the outset of the hearing I attempted to clarify with the claimant the grounds of his application. From time to time during the hearing he added to his list of grounds until eventually he confirmed that the list was complete.
9. Here, then, is the complete list of all the claimant's grounds for reconsideration:
9.1. He had in fact signed the RREC.
9.2. The Reasons (paragraph 11) wrongly recorded the date of the claimant's visit to Red Rock's premises to complete his registration.
9.3. Mr Thompson only signed the Schedules. He did not sign the SJT1 Terms themselves.
9.4. The Alicija transcript showed that the substitution clause in the SJT1 terms was a sham.
9.5. I had been wrong to conclude that there had been an agreement by exchange of text messages on 21 October 2015 leading to the assignment with the respondent starting on 21 October 2015.
9.6. The SJT1 terms had been determined by SJT1 Limited rather than the claimant.
9.7. I had made an error of law regarding offer, acceptance, and consideration in the law of contract.
9.8. The Alicija transcript showed that the parties had no intention to create legal relations when agreeing the SJT1 terms.
9.9. The claimant's email of 7 August 2015 "referred to at page 86AA of the original preliminary hearing bundle" explained the Schedules by reference to paragraph 29 of the SJT1 terms. A signature to the Schedules would only indicate an agreement if the original SJT1 terms themselves were signed.
9.10. The Schedule was a variation of the SJT1 terms.
9.11. Some of the Schedules had not been signed.
9.12. Mr Thompson was no longer employed by Red Rock.
9.13. The Reasons had been wrong to record that the claimant had attended Red Rock's premises for assessment. In fact he had gone there for registration.
9.14. The Reasons were internally inconsistent. It was not open to me to find that the Schedules incorporated the SJT1 terms if those terms had not been signed.
9.15. Paragraph 45.3 of the Reasons had observed, “Amongst other things, the heading, ‘Schedule’ begs the question, ‘Schedule to what?’ The SJT1 terms provided the obvious answer.” The claimant disagreed. A reasonable person would understand the Schedule as “pulling out a client from a really bad spot, nothing else”.
9.16. The terms on which the claimant worked were determined in part by a three-way agreement between himself, Red Rock, and the respondent. The terms and conditions of that agreement were set out in Red Rock's terms of business for the supply of agency workers which the respondent had signed.
9.17. The substitution clause in the SJT1 terms did not prevent the claimant from being a worker within the statutory definition because both Red Rock and the respondent had the right to veto any substitute supplied by the claimant. In support of this ground the claimant relied on *Croke v Hydro Aluminium Worcester Limited* UKEAT/0238/05.
9.18. Mr Thompson in his text messages always asked if the claimant could do the driving and did not refer to anybody driving on his behalf.
9.19. Red Rock's terms of business with the respondent provided for invoicing and payment. It was these terms, and not the SJT1 terms or the Schedules that determined how invoices should be raised and paid.
9.20. Mr Thompson did not permit the claimant to invoice Red Rock monthly.
9.21. The terms of the Schedules and the SJT1 terms were a sham because they provided for SJT1 Limited to provide "IT equipment, maps, sat nav, PPE, basic tool". In fact, the claimant said, all he brought was his "hi vis", boots and navigation system.
9.22. Red Rock's standard terms of business with the respondent contained provision as to how the agreement should be terminated.
9.23. The Schedules had not been signed at the time of booking the claimant for an assignment, but once the assignment had already been completed.
9.24. In the second week of the claimant's assignment with the respondent, Mr Warren told the claimant that he had received an email from Red Rock attaching various documents relating to the claimant. This, argued the claimant, was evidence that the respondent had intended to be bound by Red Rock's standard terms of business, clause 3 and that the claimant was a party to that agreement.
9.25. Red Rock paid insurance in respect of the claimant's driving. That was inconsistent with the SJT1 terms, which provided that SJT1 Limited should pay the insurance.
10. At the reconsideration hearing the claimant gave evidence on oath. On the subject of the RREC, the claimant told me the following:
10.1. He had an audio recording of a conversation between himself and Red Rock's director, Mr Dan Brown. It was his evidence that he had asked Mr Brown during that conversation for disclosure of the registration pack which included the RREC.
10.2. He was not sure exactly when he had obtained the copy of the RREC which he had submitted alongside his reconsideration application. He was, however, sure that he had obtained it after the preliminary hearing on 7 October 2016.
10.3. On an unknown date after 7 October 2016, the claimant had visited Red Rock's premises in Birkenhead and spoken to an employee whom he knew as "Danielle". She had personally handed him the RREC.
11. Mr Thompson also gave evidence at the reconsideration hearing. He told the Tribunal:
11.1. He had not signed the RREC.
11.2. At all times he knew that he was contracting with a limited company. He therefore had no reason to provide the claimant with a contract of employment. 11.3. The standard recruitment pack used by Red Rock included sample contracts for different categories of work provider. These included construction industry scheme workers, sole traders, limited companies and employees.
11.4. The only employee called Danielle working at Red Rock's Birkenhead office was Danielle Murray. Ms Murray ceased to be an employee on 30th August 2016. In support of this evidence he produced an email from Ms Murray dated 3 February 2017.
12. In the light of this rather surprising clash of evidence, the parties agreed that the records held by Red Rock had become highly relevant and that steps ought to be taken to secure their disclosure. It was therefore agreed that the reconsideration hearing would be adjourned for the purposes of a specific disclosure application against Red Rock.
13. On 10 February 2017, the claimant emailed the respondent's solicitors about the RREC. His email informed them that, contrary to his oral evidence, he had obtained the RREC copy "one or two days before the hearing".
The hearing on 24 March 2017
14. The parties appeared again in front of me on 24 March 2017 for a specific disclosure application. Nobody from Red Rock attended. At the hearing, the claimant returned to the subject of when he had obtained the copy of the RREC. He said, "Last time I unwarily [sic] lied to you that I got the contract after the hearing. I got it before the hearing. I thought there was overwhelming proof that my contract with Red Rock wasn't legally binding. By those rules, I put that aside. I got the contract on 12 September 2016".
15. In the absence of any opposition from Red Rock, I made an order for specific disclosure in the terms requested. The documents covered by the order were:
"(1) the employment records of Danielle Murray so far as they are relevant to the dates on which she was employed by [Red Rock];
(2) any documents that formed part of the claimant's registration pack completed on or about 7 August 2015, or confirmation that no such documents exist; and
(3) any documents evidencing the use of substitute drivers by employees or contractors of Red Rock Partnership Limited and/or Rainbow People Limited, or confirmation that no such documents exist."
Disclosure by Red Rock and parties' written submissions
16. On 2 May 2017 the parties sent their written submissions to the Tribunal. By this time Red Rock had complied with the disclosure order. A number of Red Rock's documents accompanied the written submissions. These included:
16.1. the claimant's application for employment with Red Rock;
16.2. a pre-employment questionnaire completed by the claimant;
16.3. the claimant's agreement to opt out of the statutory 48 hour week; 16.4. a certificate of incorporation of SJT1 Limited, the company’s VAT registration certificate and;
16.5. a brief numeracy and literacy test completed by the claimant.
17. All these documents bore the dates 7 August 2015 or 8 August 2015.
18. The submissions also attached Red Rock’s employment records for Ms Murray. These included a letter from Mr Brown to Ms Murray terminating her employment with effect from 26 August 2016.
19. The claimant’s written submissions were brief. He claimed that “something really fishy is going on regards Ms Daniel employment”. It was hard to understand the basis upon which he made that assertion, but it appeared to rely on transcripts of telephone calls. The claimant continued, “and also regards substitute drivers, you can see, that that was all fabricated … they never had them nor they are going to”. He pointed out that in the registration pack he had been treated like an employee.
20. Attached to the claimant’s written submissions were four ".ODT" files, described as transcripts of various conversations. Later that day, the Tribunal emailed the claimant to inform him that the attachments could not be opened. He was asked to re-send them in either PDF or word document format or by another method. The claimant did not reply.
21. The respondent’s submissions conceded that the claimant had signed the RREC on 7 August 2016. Nevertheless, it was the respondent's case that the original judgment should stand. The RREC did not alter the analysis. According to the respondent, the parties never seriously intended to be bound by its terms. In any event, it was superseded by the SJT1 terms.
Relevant Law
22. The old Employment Tribunal Rules of Procedure 2004 required that judgments could be “reviewed”, but only on one of a prescribed list of grounds. One of those grounds was that “new evidence [had become] available since the conclusion of the hearing to which the decision relates, provided that its existence could not have been reasonably known of or foreseen at that time.” This proviso reflected the well-known principle in civil litigation deriving from Ladd v. Marshall [1954] 3 All ER 745, CA.
23. The current 2013 Employment Tribunal Rules of Procedure replaced the old list of grounds with a single test: a judgment will be reconsidered where it is “necessary in the interests of justice to do so”. There is no specific provision for fresh evidence. Nor is there any express prohibition a party relying on evidence about which he knew or ought to have known before the judgment was given. Nevertheless, the “interests of justice” test must, in my view, incorporate a strong public interest in the finality of litigation, even if it is not as inflexible as the proviso in the 2004 Rules. Where a party could reasonably have been expected to rely on the evidence first time around, it would take a particularly good reason to give that party a fresh opportunity to rely on it.
24. The overriding objective of the 2013 Rules is to enable the tribunal to deal with cases fairly and justly. Dealing with cases fairly and justly, to my mind, includes allowing, where possible, parties to rely on all the evidence upon which they wish to rely that is relevant to the issues to be decided. It also, by rule 2, includes putting the parties on an equal footing, avoiding delay, saving expense, and dealing with cases in ways that are proportionate to the complexity and importance of the issues.
25. Since the Judgment and Reasons were sent to the parties, the case of Day v. Health Education England [2017] EWCA Civ 329 was decided by the Court of Appeal. In addition to the reconsideration grounds, I have taken the initiative to examine whether, in the light of Day (if the pun can be forgiven), the Judgment ought to be varied or revoked.
26. Day is authority for the proposition that a worker can have two employers under section 43K of ERA. These may be both the agency (supplier or introducer) and the end-user (person for whom the work was done). Both may substantially determine the terms under which the individual worked. It therefore does not matter which of the two employers determined the terms to the greater extent. Put another way, the tribunal should not ask itself whether the worker’s terms were substantially determined by the end-user as opposed to the agency or vice versa. What matters is whether either of those two entities substantially determined the terms as opposed to the claimant. As Elias LJ put it at paragraph 11, “...if the terms on which the individual is engaged are substantially determined by the individual himself, he cannot bring himself within this extended definition of "worker". That is so even if the end-user and/or introducer can also be said substantially to determine the terms of engagement.”
Conclusions
27. Having taken account of all the new evidence and arguments, I have reached the view that it would not be necessary in the interests of justice to revoke the original judgment. I address each ground in turn.
Ground 1 - the RREC
28. I should immediately acknowledge that my finding expressed in paragraphs 5.2 and 11.2 of the Reasons cannot stand in its present form. The claimant did sign the RREC on behalf of JST1 Limited on 7 August 2015.
29. In the light of this finding I have reflected anew on the reliability of the witness evidence in this case.
30. I must now take Mr Thompson's evidence with care. His evidence that Red Rock had no reason to use a contract of employment is clearly wrong. Somebody from Red Rock did sign one. That may be because they had a different practice to that of Mr Thompson for dealing with limited companies, because they were unused to dealing with limited companies, or because Mr Thompson did not want to admit to the tribunal that he had treated the claimant as an employee.
31. Even taking this cautious approach, I remain convinced by Mr Thompson's evidence that at all times he believed he was dealing with a limited company. His actions in chasing SJT1 Limited's VAT registration on 3 August 2015 lends support to his oral evidence in this regard.
32. Mr Josic has laid to rest one concern I had about his credibility, but in doing so, has caused others to emerge in its place. His evidence about when he obtained the copy of the RREC was inconsistent. He also appears to have changed his version of why he did not disclose that document at the preliminary hearing on 7 October 2016. Unfortunately, I have no note of any explanation given by the claimant as to why he had not disclosed it. The context suggests that the claimant's explanation at that time was that he did not think that the document was relevant. At the hearing on 3 February 2016, the clear impression being given by the claimant was that he had not got the document at the time of the preliminary hearing and therefore had no opportunity to disclose it. On 24 March 2017, his explanation was that he thought there was overwhelming proof that the RREC was not legally binding.
33. In my view the RREC was a sham. Neither party can have intended that a limited company should be an employee. This was not intended to be an agreement with an umbrella company, which in turn would employ the claimant. The terms and conditions in the RREC were clearly directed at an individual employee and not an umbrella company. The claimant's remarks on 24 March 2017 rather suggest that the claimant himself acknowledges that the RREC was not binding.
34. A closer look at the terms of the RREC confirms the position:
34.1. The SMS exchanges do not show regular contact from the claimant to Red Rock on Mondays whilst he was not working on assignment.
34.2. On 9 October 2015, 12 October 2015 and 16 to 19 October 2015, (Reasons paragraphs 23, 25 and 27) the claimant declined offers of driving assignments giving a variety of reasons. There was no enquiry as to whether the claimant had good cause for declining these offers. Neither party seriously believed that by declining assignments in this way the claimant might be committing gross misconduct.
34.3. Even if on 7 August 2015 the parties can be taken to have intended to be bound by the RREC, those obligations were in my view superseded by the SJT1 terms and/or the Schedules. The mechanism by which this happened is set out at paragraph 45 of the Reasons.
Ground 2
35. Paragraph 11 of the Reasons wrongly records the date. It should be 7 August 2015. In my view, the real date only strengthens the ultimate conclusion. The claimant offered the SJT1 terms on the same day that he signed the RREC on his company's behalf. The close proximity in time demonstrates in my view the lack of serious intention that the claimant should enter into an individual contract of employment.
Ground 3
36. This argument was advanced at the preliminary hearing. I dealt with it at paragraph 18 of the reasons, and at paragraph 45, explained, how, in my view the SJT1 terms became part of the contract despite not having been signed by Mr Thompson.
Ground 4
37. I do not agree that the Alicija transcript demonstrates that the substitution clause in the SJT1 terms was a sham. The claimant's conversation with Alicija occurred over a year after the SJT1 terms were agreed. Alicija was employed at a completely different office. The claimant did not make clear in the conversation that he was contracting on behalf of a limited company. Ground 5
38. Paragraph 45.6 of the Reasons mistakenly refers to an agreement having been reached on 21 October 2015. It is clear, however, from paragraph 28, that I found that the agreement had actually taken place on 20 October 2015. In any event, one day's difference does not alter the analysis.
Ground 6
39. The claimant appears to be arguing that, if the terms on which the claimant worked were substantially determined by SJT1 Limited, they were not determined by him. In my view, this argument misses the point of the test in Section 43K. The claimant's case is that the "third person" who introduced or supplied him to do the work was Red Rock. It was never his case that the introducer or supplier was SJT1 Limited. The question is whether the claimant substantially determined the terms on which he did the work as opposed to either Red Rock or the respondent: see Day. It is not enough for him to show that the terms were substantially determined by SJT1 Limited as opposed to himself.
Ground 7
40. At paragraph 45 of the Reasons I set out my analysis of the offer, acceptance and consideration for the SJT1 terms and Schedules. If the claimant believes I have erred in law in this regard, he can make that point in his appeal to the Employment Appeal Tribunal.
Ground 8
41. The claimant confirmed that this ground was essentially the same as Ground 4. I reject it for the same reasons.
Grounds 9 and 10
42. These two grounds appear to be making the same point. The claimant's argument, as I understand it, seems to me to be entirely circular. He appears to be saying that Schedules that were expressed to be pursuant to Clause 29 of the SJT1 terms could not be binding, despite their signature, because they only derived their force from Clause 29 itself. If the SJT1 terms were not signed, then Clause 29 would have no effect, thus robbing the Schedules of their status as amendments to the SJT1 terms. This argument appears to be based on the premise that the status of the Schedules is governed by Clause 29. If Clause 29 did govern the Schedules, it must mean that the SJT1 terms were binding. If Clause 29 did not govern the Schedules, the Tribunal has to determine what the contractual effect of signing the Schedules was, against the background of all the preceding emails and texts. The reasons at paragraph 45 set out my conclusions in this regard.
Ground 11
43. The Reasons already took account of the fact that not all of the schedules were signed.
Ground 12
44. I cannot see the relevance of Mr Thompson no longer being employed by Red Rock.
Ground 13 45. In my view it does not matter what label one attaches to the claimant's visit to Red Rock's premises on 7 August 2015. Whether it is called "assessment", "induction" or "registration", the effect is the same. The RREC was a sham and the SJT1 terms were binding.
Ground 14
46. This ground appears to advance nothing new and I reject it for the reasons already given.
Ground 15
47. The claimant appears to agree with paragraph 45.3 of the Reasons, in that he appears to accept that a reasonable person would understand the Schedules to have been intended to be read alongside something else. Where the claimant parts company from the Reasons is in trying to ascertain what that "something else" would be. My view was that a reasonable person would think that the Schedules were to be read alongside the SJT1 terms. The claimant's opposing argument is that a reasonable person would think that the Schedules were a reference to "pulling out a client from a really bad spot, nothing else". I cannot see how any reasonable reader of the Schedules would interpret them in that way.
Ground 16
48. This is one of a number of grounds that stands or falls on the question of who were the parties to Red Rock's standard terms of business. The claimant's case is that it was a tripartite contract. I disagree. It is noteworthy that the standard terms expressly excluded any rights of third parties. They were never expressly agreed by the claimant. The parties were stated to be Red Rock and the respondent. I cannot see why it would be necessary to imply that such a contract existed between the claimant and either of those parties. The terms clearly regulate the obligations of Red Rock and the respondent between each other and nobody else. The relationship between Red Rock and the claimant is capable of being explained by the SJT1 terms.
Ground 17
49. The substitution clause in the SJT1 terms is consistent with a genuine right of substitution. The fact that Red Rock and/or the respondent had a limited right to satisfy themselves reasonably of the skills and experience of the substitute did not make the right of substitution meaningless. Nothing in Croke alters the position. Croke concerned the question of whether the worker had been introduced or supplied by a third person. The existence of a limited right of substitution was not incompatible with the notion that the third person had supplied the worker. There was no issue as to whether the third person had substantially determined the terms under which the worker had worked. In this case the question is who determined those terms. The relevance of the substitution clause is not to the question of supply but to who determined whether the right of substitution should exist or not. That term, in my view, was determined by the claimant on behalf of SJT1 Limited and not either the respondent or Red Rock.
50. Part of my order for disclosure was for Red Rock disclose documents in relation to the right of drivers to send substitutes. It is not entirely clear what, if anything, Red Rock disclosed in that regard. The claimant interprets Red Rock’s disclosure (or lack of it) to mean that drivers in practice did not send substitutes. That is one possible interpretation. Another might be that Red Rock did not keep records when limited companies with whom they dealt sent alternative drivers to perform the services on their behalf. I am inclined to agree with the claimant that the former interpretation is more likely. Red Rock probably would have wished to keep sufficient documentation to demonstrate that, where a service provider did send along a substitute driver, they had undertaken some basic checks to satisfy themselves that the driver was suitably qualified. This finding only gets the claimant so far, however. He still has to bridge the gap between the lack of evidence of substitutes being used in practice and an intention on his part and that of Red Rock that the substitution clause in the SJT1 terms should be meaningless. The claimant insisted that the work he did should be governed by the SJT1 terms. For the reasons given in paragraph 47, my view was that the SJT1 terms were not a sham.
Ground 18
51. I do not have a note of it being put to Mr Thompson that he only ever asked for the claimant to do the driving. The SMS exchanges contain a number of enquiries by Mr Thompson into the possibility of other drivers besides the claimant being able to cover the work. An exchange on 24 August 2015 is an example. One possible explanation is that the claimant was being asked for an alternative driver who could contract separately with Red Rock. Another is that SJT1 Limited was entitled to send that driver to do work on its behalf. Cross examination of Mr Thompson on that point would have helped establish the context. I cannot say that it is so incompatible with a right of substitution as to make it necessary in the interests of justice to revoke the judgment.
Ground 19
52. This ground relates to the Red Rock terms of business with the respondent. I have already expressed my views in this regard.
Ground 20
53. I am not sure that I follow this ground. The Schedules to the SJT1 terms provided for weekly invoicing. Refusal of the claimant’s request for monthly invoicing, if it occurred, would be consistent with the Schedules. The alternative would appear to be that the method of payment was to be governed by the RREC. It is unlikely that either party intended this eventuality. If that is what the parties intended, the claimant would not have submitted regular invoices on behalf of SJT1 Limited.
Ground 21
54. I see no contradiction between the equipment provided for in the Schedules and the equipment actually supplied by the claimant.
Ground 22
55. This is another ground that depends for its success on the Red Rock terms of business creating rights and obligations for the claimant. My view is that they do not.
Ground 23 56. This is an argument that the claimant made at the preliminary hearing. The Reasons at paragraphs 45 and 46 explain why I did not agree with that argument.
Ground 24
57. Clause 3 of Red Rock’s standard terms of business provided:
“When making an introduction to the hirer [Red Rock] shall inform the hirer of the following …
that the agency worker has the experience, training, qualifications and any authorisations which the hirers considers are necessary … to perform the services.”
58. On the claimant’s version, which I have no reason to disbelieve, Red Rock’s conduct (in forwarding the claimant’s driving documents to the respondent) was consistent with Red Rock being bound by clause 3.
59. Where this ground falls down is on the same point as before – the claimant was not a party to the standard terms. The fact that the respondent informed the claimant of Red Rock’s actions (which happened to comply with clause 3) is, to my mind, beside the point.
Ground 25
60. Part of the fee paid by the respondent to Red Rock included a payment in respect of liability insurance for the claimant’s driving. The claimant makes a good point that the respondent appears to have given Red Rock something of a windfall, because the SJT1 terms already provided that SJT1 Limited would ensure that its drivers were adequately insured. One possible reason is that Red Rock did not seriously believe that the SJT1 Limited would really put insurance cover in place. Another is that they wished to adopt a “belt and braces” approach. It would be better for a driver to be doubly insured than not insured at all. Taking all of the circumstances into account, including those in Reasons, paragraph 47, my view remains that the SJT1 terms were not a sham and were genuinely intended by the claimant to be binding.
61. For all of these reasons my conclusion is that the original judgment should be confirmed.
Employment Judge Horne
Date: 9 June 2017
JUDGMENT AND REASONS SENT TO THE PARTIES ON
4 July 2017 FOR THE TRIBUNAL OFFICE
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5c12ff756ce9498ae6b5c66136712f856b17772c | ### Records Examination: Companies & Larger Unincorporated Concerns
| Name | File No. | Enquiry No. | |------|----------|-------------| | | | |
| Date Records received | Date Records returned | |-----------------------|-----------------------| | / / | / / |
| Date(s) examined | / / | / / | |------------------|-----|-----|
| Records Seen | Sample size | Tests applied | Comments (including the period covered by records examined) | |--------------|-------------|---------------|----------------------------------------------------------| | Nominal ledger | | | | | Private ledger | | | | | if not part of Nominal | | | | | Cash book | | | | | including petty cash | | | | | Sales ledger | | | | | Sales Day Book | | | | | Purchases Ledger | | | | | Purchases Day Book | | | | | Stock Records | | | | | Wages Records | | | | | Other | | | | | Please specify | | | |
**NB:** If the space for notes is inadequate, please continue on a separate sheet.
______________________________________________________________________
**Accountant’s Working Papers**
List the items seen with comments:
| Other papers | |--------------| | | | | | |
**General Notes**
| General Notes | |---------------| | |
**NB:** If the space for notes is inadequate, please continue on a separate sheet. | Invoices Seen | Sample size | Tests applied | Comments (including the period covered by records examined) | |---------------|-------------|---------------|----------------------------------------------------------| | Sales | | | | | Sales Returns/| | | | | Credit Notes | | | | | Purchases | | | | | Purchase Returns/ | | | | | Debit Notes | | | | | Expenses/Assets| | | |
| Non-financial Records | Sample size | Tests applied | Comments (including the period covered by records examined) | |-----------------------|-------------|---------------|----------------------------------------------------------| | Sales Order Notes | | | | | “Booking-in” Diaries | | | | | Copy Purchases orders | | | | | Job Cards/Time Sheets | | | | | Goods Outwards Book | | | | | Good Inwards Book | | | |
| Records Seen | Sample size | Tests applied | Comments (including the period covered by records examined) | |--------------|-------------|---------------|----------------------------------------------------------| | Company Bank Accounts (specify the name of the account) | | | | | Paid Cheques (specify the name of the account) | | | | | Private Bank Accounts (specify the name of the account) | | | | | Paid Cheques (specify the name of the account) | | | |
NB: If the space for notes is inadequate, please continue on a separate sheet.
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4a7e07d47f07e2e6e56d31f3e62f60e69f6aa462 | Apprenticeships national success rates tables for the 2012/2013 academic year
Guidance notes
Date of issue 16 April 2014
Publication intent NOT PROTECTIVELY MARKED
Contents Section 1 – Introduction ........................................................................................................... 2 Purpose of this document ........................................................................................................ 2 Purpose of the Apprenticeships national success rates tables ........................................... 2 Location of national success rates tables for 2012/2013 .................................................. 2 Changes to the Apprenticeships national success rates tables ........................................... 2 Section 2 – Apprenticeships national success rates tables worksheets .......................... 3 Contents of the tables ............................................................................................................. 3 Format of the Apprenticeships national success rates tables ............................................. 3 Overall report .................................................................................................................... 3 Sector subject area and framework report ....................................................................... 4 Institution report for overall measure and timely measure ............................................. 4 Excluded framework report for overall and timely measure ........................................... 4 Section 3 – Apprenticeships national success rates tables open data files ..................... 5 Format of Apprenticeships national success rates tables open data files ....................... 5 Overall report .................................................................................................................... 5 Sector subject and framework report .............................................................................. 6 Institution report .............................................................................................................. 6 Excluded frameworks report ............................................................................................ 6 Section 4 – Contents of national success rates tables ....................................................... 7 Report columns .................................................................................................................... 7 Institution type .................................................................................................................. 7 Age group .......................................................................................................................... 7 Apprenticeship level and type ............................................................................................ 7 Framework name and framework code ............................................................................ 7 Sector subject area tier 1 and tier 2 .................................................................................. 8 Overall leavers and timely leavers .................................................................................... 8 Report measures .................................................................................................................. 8 Overall success rate .......................................................................................................... 8 Timely success rate ............................................................................................................ 8 Success rates percentiles .................................................................................................. 9 Section 5 – Exclusions from the national success rates tables ........................................ 10 Section 6 – Choosing information on the national success rates tables ........................ 11 Further information and help ............................................................................................... 12 Section 1 – Introduction
Purpose of this document
1. This document provides information about the Apprenticeships national success rates tables for the 2012/2013 academic year.
Purpose of the Apprenticeships national success rates tables
2. The national success rates tables for Apprenticeships set out levels of success in Apprenticeships provision in England for the 2010/2011, 2011/2012 and 2012/2013 academic years. We publish national success rates tables every year.
3. The information in the tables is consistent with the Apprenticeships qualification success rates reports for 2012/2013 published in January 2013. It expands upon the success-rate information made available in the January statistical first release (see www.gov.uk/government/publications/learner-participation-outcomes-and-level-of-highest-qualification-held).
4. Apprenticeships national success rates tables help providers to raise the standard of their work. It allows providers to assess their performance, and helps them plan action programmes to improve their apprentices’ success rates.
5. Throughout this guidance we refer to ‘national success rates tables’ rather than ‘benchmarking data’. National success rates tables allow for comparison, and are not a standard of best practice.
Location of national success rates tables for 2012/2013
6. The national success rates tables for 2012/2013 are on the data.gov.uk website at [enter URL for website].
Changes to the Apprenticeships national success rates tables
7. The changes made to the Apprenticeships national success rates tables for 2011/2012 are as follows.
- The information from the 2012/2013 Apprenticeships qualification success rates reports has been added to the national success rates tables for 2012/2013.
- The information from the 2009/2010 Apprenticeships qualification success rates reports has been removed from the national success rates tables for 2012/2013.
- For the first time we are publishing qualification success rates reports for providers, to help them measure their success.
- Only funded framework aims are included in the success rates tables. Section 2 – Apprenticeships national success rates tables worksheets
Contents of the tables
08. Our aim in publishing the Apprenticeships national success rates tables is to provide a useful but manageable amount of information, drawing on existing statistics.
09. The information for the Apprenticeships national success rates tables has been created from providers’ Individualised Learner Record (ILR) returns, and they provide a range of national-level and provider-level statistics for success. The method of calculating success rates is available on the gov.uk website at www.gov.uk/government/publications/apprenticeships-qualification-success-rates-2012-to-2013.
10. The Apprenticeships national success rates tables contain information on success rates for three academic years (2010/2011, 2011/2012 and 2012/2013). The information for each academic year comes from the success rates dataset produced for that year, calculated using the method that applied to that year.
11. The Apprenticeships national success rates tables are calculated using the ‘overall’ success rate and ‘timely’ success rate. The timely success rate is only shown on the provider-level report.
Format of the Apprenticeships national success rates tables
12. The Apprenticeships national success rates tables are published as four compressed files. Each compressed file holds a Microsoft Excel spreadsheet that contains a number of worksheets. The separate spreadsheets are: • Overall report; • Sector subject area and framework report; • Institution report for overall measure and timely measure; and • Excluded framework report for overall and timely measure.
The contents of the spreadsheets are shown below.
Overall report
13. The overall report contains separate worksheets that show national success rates at headline level, which is an overview of all national success rates. This report also presents the success rates by: • sex; • learning difficulty or disability; • ethnic background; • apprentices’ local authority (based on the apprentices’ home postcodes); and • the local authority for where the learning is delivered (based on the postcode of the providers’ delivery locations).
14. The overall report also shows success rates percentiles on a separate worksheet. For a further explanation of success rates percentiles and how they are calculated, see paragraphs 47 to 52. The report shows percentiles at headline level and by:
- ethnic background;
- sex; and
- learning difficulty or disability.
15. Percentile sheets for apprentices’ and delivery locations’ local authorities have not been included in the overall report as the dataset contains many small groupings (cohorts), which would have a significant effect on the rates presented.
**Sector subject area and framework report**
16. The sector subject area and framework report contains worksheets that show the national success rates by:
- sector subject area tier 1 and 2; and
- framework.
**Institution report for overall measure and timely measure**
17. The institution report contains worksheets that show the success rates of each institution at headline level, which is a high-level overview of the overall success rates for each provider, by:
- sex;
- ethnic background;
- learning difficulty or disability;
- sector subject area; and
- framework.
18. The hybrid end date (which is the actual end date or the planned end date, whichever is later) is shown for the overall success rate and the planned end date is shown for the timely success rate.
19. The sector subject area and framework reports could be split by year over separate worksheets if you go over the row limit of 65,536 in Excel 2003.
20. A timely success rate report is published for the first time in 2012/2013. This shows timely national success rates for providers in the same worksheet format as the institutions’ overall national success rates reports.
**Excluded framework report for overall and timely measure**
21. Due to the rules described in section 5, the full coverage of frameworks delivered nationally, and at institution level, is not available in the national- and institution-level framework spreadsheets for the overall success rates.
22. The excluded frameworks are published in the excluded framework worksheets to allow the full scope of frameworks delivery to be seen. The report indicates the reasons for the particular frameworks being excluded. It is split into four worksheets:
- Excluded Apprenticeship frameworks at national level for 2010/2011, 2011/2012 and 2012/2013;
- 2010/2011 overall excluded frameworks for institutions;
- 2011/2012 overall excluded frameworks for institutions; and
23. As the timely success rate is only being published for the institution report, excluded frameworks at institution level will be shown in the timely excluded frameworks report along with the reasons for the exclusions. The report is split into three worksheets:
- 2010/2011 timely excluded frameworks for institutions;
- 2011/2012 timely excluded frameworks for institutions; and
- 2012/2013 timely excluded frameworks for institutions.
24. The excluded frameworks for institutions are displayed by year on separate worksheets as the volume of data goes over the Excel 2003 row limit of 65,536.
Section 3 – Apprenticeships national success rates tables open data files
Format of Apprenticeships national success rates tables open data files
25. The Apprenticeships national success rates tables are also published in a non-proprietary format to make sure they meet the 'three-star open data standard'. The comma-separated variable (CSV) file is our preferred non-proprietary format. For more information on open data, see the published white paper written by the Cabinet Office. This is on the website at www.gov.uk/government/publications/open-data-white-paper-unleashing-the-potential.
26. The Apprenticeships national success rates tables open data files are published as 27 separate compressed files. The contents of each file, and where the information comes from, are listed below.
Overall report
27. There are 10 files containing data from the overall report worksheets explained in paragraphs 13 and 14.
- NSRT201 – headline success rates
- NSRT202 – headline percentiles
- NSRT203 – success rates by gender
- NSRT204 – percentiles by gender
- NSRT205 – success rates by ethnic background
- NSRT206 – percentiles by ethnic background
- NSRT207 – success rates by learning difficulties or disabilities
- NSRT208 – percentiles by learning difficulties or disabilities
- NSRT209 – success rates by apprentices' local authority
- NSRT210 – success rates by delivery locations' local authority. Sector subject and framework report
28. The sector subject area and framework report worksheets explained in paragraph 16 is published as two files listed below.
- NSRT211 – sector subject area and framework success rate
- NSRT212 – sector subject area success rates. (All the sector subject area worksheets are in this file.)
Institution report 29. There are 12 files containing the institution report worksheets explained in paragraphs 1 to 20.
- NSRT213 – overall headline success rates for the institution
- NSRT214 – overall success rates for the institution by gender
- NSRT215 – overall success rates for the institution by ethnic background
- NSRT216 – overall success rates for the institution by learning difficulties or disabilities
- NSRT217 – overall sector subject area success rates for the institution
- NSRT218 – overall framework success rates for the institution
- NSRT222 – timely headline success rates for the institution
- NSRT223 – timely success rates for the institution by gender
- NSRT224 – timely success rates for the institution by ethnic background
- NSRT225 – timely success rates for the institution by learning difficulties or disabilities
- NSRT226 – timely sector subject area success rates for the institution
- NSRT227 – timely framework success rates for the institution
Excluded frameworks report 30. There are three files containing excluded frameworks report worksheets as explained in paragraphs 21 and 24.
- NSRT219 – overall excluded national frameworks
- NSRT220 – overall excluded institution frameworks
- NSRT221 – timely excluded institution frameworks
31. All the excluded institution framework worksheets are in a single file. Section 4 – Contents of national success rates tables
32. This section explains the columns in the Apprenticeships national success rates tables worksheets.
Report columns
Institution type
33. Providers are classified into one of six institution types. The institution types reported on are as follows.
- General further-education or tertiary college
- Other publicly funded institution
- Private-sector publicly funded institution
- School
- Sixth-form college
- Specialist college
34. The ‘specialist college’ category includes agriculture and horticulture colleges, and art, design and performing arts colleges.
An ‘all institution type’ category is also available on some of the worksheets.
Age group
35. The age group of a cohort is based on an apprentice’s age on the start date of the framework aim. Apprentices of unknown age are included in the 25 and over age group. Apprentices under 16 are included in the 16 to 18 age group. All tables show information divided into the following age groups.
- 16 to 18
- 19 to 24
- 25 and over
- All ages
Apprenticeship level and type
36. Apprenticeships are grouped according to their level and type. The Apprenticeship levels and types reported on are as follows.
- Level 2 – intermediate Apprenticeship
- Level 3 – advanced-level Apprenticeship
- level 4 + – higher-level Apprenticeships (this includes level-4 and level-5 Apprenticeships)
- All levels and types
Framework name and framework code
37. The framework name and framework code of an Apprenticeship is in the learning aim reference application (LARA). Sector subject area tier 1 and tier 2
38. The sector subject area tier 1 and sector subject area tier 2 for an Apprenticeship framework are in the data lookup used in the October 2013 statistical first release and qualification success rate reports.
Overall leavers and timely leavers 39. The ‘overall leavers’ column shows the number of Apprenticeships that are planned to be completed, or have actually completed, within a given academic year.
40. The ‘timely leavers’ column shows the number of Apprenticeships that are expected to be completed by the planned end date, or within 90 days of the planned end date, within a given academic year.
41. A ‘leaver’ is defined as an apprentice who:
- has not transferred to a different programme with the same provider;
- has not transferred to another provider due to intervention by us or the Education Funding Agency;
- is not on a planned break; and
- has not withdrawn within the first six weeks of study.
42. The number of leavers in a sub-cohort (a distinct group of apprentices within a cohort) may not add up to the total number of apprentices in the cohort because:
- the number of leavers is rounded to the nearest 10 at all levels; and
- small cohorts of leavers (fewer than five) are not included in the published tables.
Report measures 43. The overall and timely success rates are calculated in line with our Apprenticeship qualifications success rates business rules and methods. These are on the gov.uk website at www.gov.uk/government/publications/apprenticeships-qualification-success-rates-2012-to-2013.
Overall success rate 44. The overall success rate measures the percentage of Apprenticeship frameworks achieved against the overall number of Apprenticeship frameworks completed. The overall success rate is based on the hybrid end year. The hybrid end year is the actual learning end year or the planned learning end year, whichever is later.
45. The definition of ‘leaver’ in paragraph 41 is also used to exclude Apprenticeship frameworks from the calculation of the overall success rate.
Timely success rate 46. For the first time, the Apprenticeships national success rates tables for 2012/2013 provide a limited set of information for providers using the timely success rate. The timely success rate measures the percentage of Apprenticeship frameworks that were achieved by their planned end date, or within 90 days after their planned end date, against the number of frameworks that were expected to be completed. The exclusions for the overall success rate also apply to the timely success rate. Success rates percentiles
47. Success rates percentiles allow providers to compare their results against the range for their sector or particular types of provider. One way of interpreting percentiles is as follows.
- Providers with a success rate on or above the 90th percentile are in the top 10% of providers.
- Providers with a success rate on or above the 75th percentile are in the top 25% of providers.
- Providers with a success rate on or above the 50th percentile are in the top 50% of providers.
- Providers with a success rate below or on the 25th percentile are in the bottom 25% of providers.
- Providers with a success rate below or on the 10th percentile are in the bottom 10% of providers.
48. This is illustrated by the following table. A provider with a success rate of 45% would be in the bottom 10% of providers, whereas a provider with a success rate of 76% would be in the top 25% of providers.
| Percentile | Example overall success rate | |------------|-----------------------------| | 10 | 46.5% | | 25 | 59.4% | | 50 | 68.6% | | 75 | 74.5% | | 90 | 81.3% |
49. An alternative way of looking at this for provider types is that:
- the top 10% of providers in a particular category have a success, retention or achievement rate on or above the 90th percentile;
- the top 25% of providers in a particular category have a success, retention or achievement rate on or above the 75th percentile;
- the top 50% of providers in a particular category have a success, retention or achievement rate on or above the 50th percentile;
- the bottom 25% of providers in a particular category have a success, retention or achievement rate below or on the 25th percentile; and
- the bottom 10% of providers in a particular category have a success, retention or achievement rate below or on the 10th percentile.
50. Percentiles are calculated at provider level in order to display the differences between providers. This is different from the mean success rates, which are calculated as the mean rate for all the relevant leavers, averaging each leaver equally.
51. When calculating percentiles, the success rate for each provider is used to create an average. This means that apprentices with smaller providers have a greater bearing on results than those from larger providers. The results for small groupings, such as Apprenticeships being studied in sixth-form colleges, will be affected by the average.
52. Both the mean success rate and the percentiles are valid and useful measures, depending on whether you are interested in the overall performance of the sector (consider mean success rates) or the differences between providers (consider percentiles).
Section 5 – Exclusions from the national success rates tables
53. The rules on excluding small cohorts, suppressing figures and rounding figures in the success rates worksheets are listed below.
- Cohorts with fewer than five ‘overall leavers’ are not shown on any worksheets.
- Cohorts with five or more ‘overall leavers’ but fewer than 30 have the number of leavers replaced with a dash (–).
- The number of overall leavers is rounded to the nearest 10. This prevents the possibility of individual apprentices being identified.
54. The rules on exclusions, suppressions and rounded figures on the percentiles worksheet are listed below.
- If there are 20 or more providers, the 10th, 25th, 50th, 75th and 90th percentiles are shown on the worksheet.
- If there are between 11 and 19 providers, only the 50th percentile is shown on the worksheet.
- If there are 10 or fewer providers, no percentiles are shown on the worksheet.
55. Where individual framework success rates are reported, if a framework is only delivered at a single institution, the framework is not included in the report. This affects the overall report (framework success rate worksheet) and the institution report (success rates for institutions by framework) worksheet for both the overall success rates and timely success rates. Any frameworks that are excluded are listed in the excluded frameworks report worksheets, together with the reasons why they are excluded.
56. As rows on the framework spreadsheet are excluded, the total of the leavers for the individual institution types may be less than the number of leavers for the ‘all institution type’ row. The excluded institution types are shown in the excluded frameworks report spreadsheets, together with the reason for them being excluded. Section 6 – Choosing information on the national success rates tables
57. The success rate data is presented as a series of rows in Excel worksheets. Each row shows the success rate of a specific cohort of apprentices. Summary information is shown at many levels (for example, all ages, all Apprenticeship levels, all institution types). All the columns in the worksheets contain drop-down menus that allow you to choose the information you want.
58. The screenshot below shows an example of how the information will appear in the headline success rate worksheet of the overall report.
59. The drop-down menus are used to choose the level of information. The screenshot below shows the effect of using the drop-down menus to choose success rates broken down by age for all Apprenticeship levels for 2012/2013. Further information and help
60. If you would like any more information about the Apprenticeship national success rates tables, phone our service desk on 0870 267 0001 or email [email protected].
61. We produce Apprenticeships national success rates tables in line with our Apprenticeship qualifications success rates business rules. The business rules and technical specifications are on the success rate pages of the gov.uk website at www.gov.uk/government/publications/apprenticeships-qualification-success-rates-2012-to-2013.
62. If you need more help, give our service desk a detailed explanation of your query.
Published by: Skills Funding Agency Version: 1.0 Date: 16 April 2014
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439058c2aa45cae06e5ad06e94a742439d56dcf5 | Appropriate environmental conditions for parchment
The Structure of Parchment Parchment is manufactured from animal hides, most commonly sheep, goat and calf. The process of manufacture removes the epidermis and hyperdermis layers, fats and hair from the skin to leave the dermis layer (Poole and Reed, 1962). The dermis layer is predominantly made of type I and type III collagen (Kennedy and Wess, 2003). Collagen is a hierarchical protein where specific sequences of amino acids form polypeptide chains and three polypeptide chains are twisted to form a collagen helix. The collagen helices are then arranged in a quarter stagger to form strands that bundle together to form a fibril (Hodge and Petruska, 1963). Collagen fibril bundles further form fibres, and fibres form tissues. The molecular and fibrillar arrangement of collagen in parchment is well documented (Maxwell et al., 2006). See Figure 1.
Collagen Hierarchy
During the manufacture of parchment, surface collagen is exposed to harsh chemical treatments. This consequently denatures the collagen and it forms its degraded product, gelatine. Although gelatine has the same polypeptide sequences as collagen, these are no longer arranged in the triple helix motif, and the fibril and fibre structures are lost (Zhou et al., 2006). Kennedy et al. (2004) found using microfocus X-ray diffraction that parchments have a structural stratigraphy, where collagen is found in centre/core of parchments and gelatine is found on the surface. (See Figure 2) How can we measure changes in parchment due to relative humidity? There are several techniques available to investigate changes in parchment caused by relative humidity and the relationship between the nanoscopic and macroscopic properties. We have selected three in this project: X-ray diffraction, Fourier Transform Infrared Spectroscopy and mechanical testing.
**X-ray diffraction** When X-rays are exposed to an object, individual atoms will scatter the X-rays at an angle from the incident/original X-ray beam. When atoms are arranged in a lattice, where many atoms are of an equal distance apart, thousands of X-rays will scatter at the same angle: this is known as diffraction. The scattering angle can be calculated from the diffraction pattern, see Figure 3. When there are changes in the atomic lattice, for example due to the effects of relative humidity, then we can measure that change. We can also measure when there is a loss of diffraction, and therefore determine whether collagen has degraded into gelatine. Adjustments to relative humidity will cause the water content in parchment to change and changes in the collagen packing features which can also be measured (Wess et al., 2001, Wess and Nielsen, 2002). Fourier Transform Infrared Spectroscopy (FTIR) When infrared light is exposed to objects, it causes chemical groups within that object to vibrate by giving them energy. The energy needed to induce the vibration is very specific because of the steric forces that surround each chemical group. When the chemical nature of an object or its structure changes, then the steric forces within the object can also change. This change can be measured using FTIR spectroscopy. For example, in some of our recent work we investigated whether discolouration of parchment was associated with degradation of the collagen structure or a change to its chemical nature. We found that discolouration was not linked to the presence of gelatine, but was most likely due to chemical changes such as the Maillard reaction (Gonzalez et al., 2013).
Mechanical testing When water is added or removed from parchment, alterations in the mechanical properties can be induced due to changes in relative humidity. At The National Archives we use a Dynamic Mechanical Analyser to make mechanical measurements of parchments at different relative humidity.
References GONZALEZ, L.G., WADE, M., BELL, N., THOMAS, K. & WESS, T.J. 2013. Using Attenuated Total Reflection- Fourier Transform Infrared Spectroscopic (ATR-FTIR) to study the molecular conformation of parchment artifacts in different macroscopic states Appl. Spectrosc. 67. HODGE, A.J. & PETRUSKA, J.A. (eds.) 1963. Recent studies with the electron microscope on ordered aggregates of the tropocollagen molecule, London: Academic Press. KENNEDY, C.J., HILLER, J.C., LAMMIE, D., DRAKOPOULOS, M., VEST, M., COOPER, M., ADDERLEY, W.P. & WESS, T.J. 2004. Microfocus X-ray diffraction of historical parchment reveals variations in structural features through parchment cross sections. *Nano Letters* 4: 1373-1380.
KENNEDY, C.J. & WESS, T.J. 2003. The structure of collagen within parchment - A review. *Restaurator- International Journal for the Preservation of Library and Archival Material* 24 61-80.
MAXWELL, C.A., WESS, T.J. & KENNEDY, C.J. 2006. X-ray Diffraction Study into the Effects of Liming on the Structure of Collagen. *Biomacromolecules* 7: 2321-2326.
POOLE, J.B. & REED, R. 1962. The preparation of Leather and Parchment by the Dead Sea Scrolls Community. *Technology and Culture* 3: 1-26.
WESS, T.J., DRAKOPOULOS, M., SNIGIREV, A., WOUTERS, J., PARIS, O., FRATZL, P., COLLINS, M., HILLIER, J. & NIELSEN, K. 2001. The Use of Small-Angle X-Ray Diffraction Studies for the Analysis of Structural Features in Archaeological Samples. *Archaeometry* 43: 117-129.
WESS, T.J. & NIELSEN, K. 2002. *Analysis of Collagen Structure in Parchment by Small Angle X-ray Diffraction*. London: Archetype Publications.
ZHOU, P., MULVANEY, S.J. & REGENSTEIN, J.M. 2006. Properties of Alaska Pollock Skin Gelatin: A Comparison with Tilapia and Pork Skin Gelatins. *Journal of Food Science* 71: C313-C321.
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9107d970e14454b23716d0f6dfeca77273b470bc | ## Approvals for April 2013
### Recruitment and consultancy freeze – exceptions approved – April 2013
During the month of April 2013, the following exceptions to the recruitment and consultancy freeze have been considered by the Chief Executive, in his capacity as Accounting Officer:
| Approval date | Ref: No. & directorate | Summary of application | Consultancy/ recruitment | Decision | |---------------|------------------------|------------------------|--------------------------|----------| | 14/04/2013 | 274 Legal | Exception to Ext Recruitment - 1 x Grade G Legal administrator - 12 month FTC to Mar 14 | Recruitment | Approved | | 19/04/2013 | 280 CO | Approval to Recruit Grade F Business Planning | Recruitment | Approved | | 23/04/2013 | 281 CO | HR Systems Officer (P Tran Maternity Leave) | Recruitment | Approved | | 29/04/2013 | 282 Legal | Exemption to Recruit Grade C Legal Adviser fixed term appointment | Recruitment | Approved |
Requests for consultancy valued at \<£20,000 considered by the Director of Corporate Operations:
| Approval date | Ref: No. & directorate | Summary of application | Consultancy/ recruitment | Decision | |---------------|------------------------|------------------------|--------------------------|----------| | 02/04/2013 | 277 RPP | Exception to the Consultancy Freeze - Performance Investigations support- £18,000 | Consultancy | Approved |
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c76e24de6e2573a5a2c6bd9d936deb9cbe41a72f | During April 2014, the following exceptions to the consultancy freeze above £20,000 have been considered by the Chief Executive in his capacity as Accounting Officer; and the requests for consultancy below £20,000 were considered by the Director of Corporate Operations.
| Approval date | Ref: No. & Directorate | Summary of application | Consultancy/ recruitment | Decision | |---------------|------------------------|------------------------|--------------------------|----------| | 01/04/2014 | 7C Strategy | Research and analysis into stakeholder perceptions of ORR and our effectiveness, £15,000 | Consultancy | Approved | | 02/04/2014 | 8C Legal | Competition Case Advice, £50,000 | Consultancy | Approved | | 02/04/2014 | 9C Chair | Review of RSD internal processes, £3,500 | Consultancy | Approved | | 22/04/2014 | 10C RME | ORR retail review for ticket selling, £25,000 | Consultancy | Approved |
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1f8dfbc230b04f53a5374d4a403b9808a493eb82 | Consultancy spend exceptions – April 2015
During April 2015, the following exceptions to the consultancy freeze above £20,000 have been considered by the Chief Executive in his capacity as Accounting Officer; and the requests for consultancy below £20,000 have been considered by the Director of Corporate Operations.
| Approval date | Ref: No. & Directorate | Summary of application | Decision | |---------------|------------------------|----------------------------------------------------------------------------------------|----------| | 05/04/2015 | 26C(3) RME | Embedded policy support for the Retail Market Review, (extension to ref: 26C(2)), £20,000 | Approved | | 07/04/2015 | 18C(4) RME | Assessment of aspirations for track access on the East Coast Main Line, (extension to ref: 18C(3)), £14,850 | Approved | | 09/04/2015 | 56C RME | Evidence of revenue generation and abstraction from historical open-access entry and expansion, £150,000 | Approved | | 21/04/2015 | 57C Legal | Senior Salary Review, £10,000 | Approved |
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fc486850b37cfac6ae678dd486f2484de8fa4f9d | Recruitment and consultancy freeze – exceptions approved – August 2012
1. During the month of August 2012, the following exceptions to the recruitment and consultancy freeze have been considered by the Chief Executive, in his capacity as Accounting Officer.
2. The details are shown below:
| Approval date | Ref: No. & directorate | Summary of application | Consultancy/ recruitment | Decision | |---------------|------------------------|------------------------|--------------------------|----------| | 1 August 2012 | 212 RPP | Efficient enhancement expenditure review for PR13 £150,000 | Consultancy | Approved | | 6 August 2012 | 214 RME | Recalibration of Schedule 8 performance regime £108,000 | Consultancy | Approved | | 8 August 2012 | 215 RPP | Grade B Rail Delivery Manager | Recruitment | Approved | | 13 August 2012| 213 RPP | Innovation Study £114,000 | Consultancy | Approved | | 16 August 2012| 217 CS | Generic E-C recruitment scheme | Recruitment | Approved |
3. In addition, the Director or Deputy Director of Corporate Operations approved four applications for consultancy \<£20,000 – (total £23,500).
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525dc07fdcf8aeac451890cb0d528d6ca78dad95 | Recruitment and consultancy freeze – exceptions approved – August 2013
During the month of August 2013, the following exceptions to the recruitment and consultancy freeze have been considered by the Chief Executive, in his capacity as Accounting Officer:
| Approval date | Ref: No. & directorate | Summary of application | Consultancy/recruitment | Decision | |---------------|------------------------|------------------------|-------------------------|----------| | 01/08/13 | 298 CO | HR Grade G – permanent | Recruitment | Approved | | 01/08/13 | 301 RSD | RSD Grade G – team administrator | Recruitment | Approved | | 09/08/13 | 302 RME | Temporary financial analyst for run-in of PR13 | Recruitment | Approved | | 21/08/13 | 306 CO | Director of Communications | Recruitment | Approved |
Requests for consultancy valued at \<£20,000 considered by the Director of Corporate Operations:
| Approval date | Ref: No. & directorate | Summary of application | Consultancy/recruitment | Decision | |---------------|------------------------|------------------------|-------------------------|----------| | 19/08/13 | 304 RME | PR13 Financial Model Audit Review, £17,500 | Consultancy | Approved | | 22/08/13 | 305 RME | Extension to consultancy contracts for benchmarking, £20,000 | Consultancy | Approved |
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102889d5739bdcea2f708c35a5e3cfaec8ae3560 | Consultancy spend and external recruitment exceptions – August 2014
During **August 2014**, the following exceptions to the consultancy freeze above £20,000 have been considered by the Chief Executive in his capacity as Accounting Officer; and the requests for consultancy below £20,000 have been considered by the Director of Corporate Operations.
| Approval date | Ref: No. & Directorate | Summary of application | Decision | |---------------|------------------------|------------------------|----------| | 13/08/2014 | 18C(2) RME | Assessment of aspirations for track access on the East Coast Mainline, £50,000 | Approved |
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40d99a1e831a043fb2fdebf1a9b8c48868b18a0c | Recruitment and consultancy freeze – exceptions approved – December 2012
1. During the month of December 2012, the following exceptions to the recruitment and consultancy freeze have been considered by the Chief Executive, in his capacity as Accounting Officer.
2. The details are shown below:
| Approval date | Ref: No. & directorate | Summary of application | Consultancy/recruitment | Decision | |---------------|------------------------|------------------------|-------------------------|----------| | 5 December 2012 | 244 RPP | Scoping of new station stewardship measure £36,000 | Consultancy | Approved | | 11 December 2012 | 246 Legal | Fixed term appointment for maternity leave cover – Legal Advisor | Recruitment | Approved | | 13 December 2012 | 245 CO | Grade E 3-month fixed term contract | Recruitment | Approved | | 13 December 2012 | 233b CO | Further extension to web developer contract to 18 January 2013 | Recruitment | Approved | | 13 December 2012 | 247 Legal | Temporary contract – legal support officer | Recruitment | Approved | | 20 December 2012 | 249 RME | Model audit of the ORR PR13 financial model £60,000 | Consultancy | Approved | | 20 December 2012 | 250 RME | Assessment of the robustness of Network Rail’s property income forecasts £36,000 | Consultancy | Approved |
3. The Director of Corporate Operations did not approve any requests for consultancy valued at \<£20,000 during the month.
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fceca191ed61826712ad4f0abda5eb795a6e55f8 | During the month of December 2013, the following exceptions to the recruitment and consultancy freeze have been considered by the Chief Executive, in his capacity as Accounting Officer:
| Approval date | Ref: No. & directorate | Summary of application | Consultancy / recruitment | Decision | |---------------|------------------------|-------------------------|---------------------------|----------| | 06/12/2013 | 318 RME | Extension to Senior Economist post (original ref: 296 RME) | Recruitment | Approved | | 06/12/2013 | 320 RPP | Approval to Recruit - Operations Advisor | Recruitment | Approved | | 06/12/2013 | 324 RME | Understanding the Rolling Stock Costs of Train Operating Companies in the UK, £70,000 | Consultancy | Approved | | 06/12/13 | 325 RME | Feasibility of compiling a dataset of European Train Operating Companies (TOCs), £30,000 | Consultancy | Approved | | 12/12/13 | 329 EA | Approval to Recruit Temporary Grade F | Recruitment | Approved | | 18/12/13 | 331 RME | The Practicalities of Scarcity Charging, £60,000 | Consultancy | Approved | | 18/12/13 | 332 RME | Evidence Gathering on PR08 incentive regime, £60,000 | Consultancy | Approved | Requests for consultancy valued at \<£20,000 considered by the Director of Corporate Operations:
| Date | Reference | Description | Type | Status | |------------|-----------|-----------------------------------------------------------------------------|------------|---------| | 06/12/2013 | 327 RPP | Methodology review of ORR rail fares index, £10,770 | Consultancy| Approved| | 13/12/2013 | 328 RSD | Survey on ORR’s occupational health programme 2010-14, £19,800 | Consultancy| Approved|
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25297aad37f526153f93568a0c2cfa38fc1c5800 | Consultancy spend and external recruitment exceptions – December 2014
During December 2014, the following exceptions to the consultancy freeze above £20,000 have been considered by the Chief Executive in his capacity as Accounting Officer; and the requests for consultancy below £20,000 have been considered by the Director of Corporate Operations.
| Approval date | Ref: No. & Directorate | Summary of application | Decision | |---------------|------------------------|----------------------------------------------------------------------------------------|----------| | 08/12/2014 | 37C RME | Identifying the benefits of an improved understanding of Network Rail's costs and cost drivers, £80,000 | Approved | | 16/12/2014 | 39C RME | Incentivising better capacity management in GB rail: Case study evidence from other industries and railways, £60,000 | Approved | | 17/12/2014 | 18C(3) RME | Assessment of aspirations for track access on the East Coast Main Line (extension to Ref: 18C(2) RME), £20,000 | Approved | | 17/12/2014 | 38C RSD | Data analysis and comparison of health data for rail workers, versus other industrial sectors, £5,000 | Approved | | 18/12/14 | 40C RSD | Review of Birmingham New Street Escalators, £11,400 | Approved | | 19/12/14 | 41C RSD | Case studies on fatigue management indicators, £19,980 | Approved |
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45a0be42765bbefa2d8d0faf4bb5cf0e0d308bf6 | Recruitment and consultancy freeze – exceptions approved – February 2013
1. During the month of February 2013, the following exceptions to the recruitment and consultancy freeze have been considered by the Chief Executive, in his capacity as Accounting Officer.
2. The details are shown below:
| Approval date | Ref: No. & directorate | Summary of application | Consultancy/ recruitment | Decision | |---------------|------------------------|------------------------|--------------------------|----------| | 05/02/2013 | 261 RME | Review of NR's tax and VAT forecasts £30,000 | Consultancy | Approved | | 08/02/2013 | 264 RPP | Advice/Scrutiny of £200m of NR Costs. Contract extension with Arup/URS Extension value £29,000. Total contract value £621,000 | Consultancy | Approved | | 12/02/2013 | 265 RME | Regulatory Economic Advice - Gaynor Mather and Geoff Horton £136,000 | Consultancy | Approved | | 15/02/2013 | 266 EA | 2 X Grade D - Stakeholder Relations | Recruitment | Approved |
3. Requests for consultancy valued at \<£20,000 considered by the Director of Corporate Operations
| Approval date | Ref: No. & directorate | Summary of application | Consultancy/ recruitment | Decision | |---------------|------------------------|------------------------|--------------------------|----------| | 04/02/2013 | 260 EA | Editorial Support for PR 13 £15,810 | Consultancy | Approved | | 20/02/2013 | 267 EA | Stakeholder Benchmarking Survey £15,000 | Consultancy | Approved |
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25b7dc20c0e57a3b3340af148fa6378634431045 | Approvals for February 2014
**Recruitment and consultancy freeze – exceptions approved – February 2014**
During the month of February 2014, the following exceptions to the recruitment and consultancy freeze have been considered by the Chief Executive, in his capacity as Accounting Officer:
| Approval date | Ref: No. & Directorate | Summary of application | Consultancy / recruitment | Decision | |---------------|------------------------|------------------------|---------------------------|----------| | 27/02/2014 | 1R RPP | Team Administrator (8 weeks) | Recruitment | Approved |
Requests for consultancy valued at \<£20,000 considered by the Director of Corporate Operations:
| 21/02/2014 | 1C Strategy | The best practice lessons from similar public utility sectors, £4,250 | Consultancy | Approved |
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5ed1bd5b14fc2579b6cbb756d27cc0cde759bfe7 | DCMS Ministerial hospitality, overseas travel and meetings with external organisations, newspapers and other media proprietors, editors and senior executives
1 January - 31 March 2013
## GIFTS GIVEN OVER £140
| Secretary of State, Rt Hon Maria Miller MP | Date gift given | To | Gift | Value | |-------------------------------------------|-----------------|----|------|-------| | | Nil | | | | | Minister for Sport and the Olympics, Rt Hon Hugh Robertson MP | Date gift given | To | Gift | Value | | | Nil | | | | | Minister for Culture, Communications & Creative Industries, Ed Vaizey MP | Date gift given | To | Gift | Value | | | Nil | | | |
## GIFTS RECEIVED OVER £140
| Secretary of State, Rt Hon Maria Miller MP | Date received | From | Gift | Value | Outcome | |-------------------------------------------|---------------|------|------|-------|---------| | | Nil | | | | | | Minister for Sport & the Olympics, Hugh Robertson MP | Date received | From | Gift | Value | Outcome | | | Nil | | | | | | Minister for Culture, Communications & Creative Industries, Ed Vaizey MP | Date received | From | Gift | Value | Outcome | | | Nil | | | | |
## HOSPITALITY
### Secretary of State, Rt Hon Maria Miller MP
| Date | Name of Organisation | Type of Hospitality Received | |--------|----------------------------|------------------------------------------------------------------| | 17 Jan | Complicite | Tickets to The Master and Margarita\* | | 18 Jan | Royal Opera House | Lunch | | 22 Jan | Royal Opera House | Ticket | | 01 Feb | Financial Times | Lunch | | 10 Feb | Channel 4 | Ticket to BAFTA Film Awards | | 26 Feb | LSE | Women’s Library Reception | | 28 Feb | BBC | Lunch | | 05 Mar | Three | Reception | | 05 Mar | Broadband Stakeholder Group| Dinner | | 06 Mar | Southbank Centre | Lunch | | 16 Mar | Welsh Rugby Union | Tickets to RBS Six Nations match (England v Wales)\* | | 19 Mar | V&A Museum | Dinner |
### Minister for Sport and the Olympics, Rt Hon Hugh Robertson MP
| Date | Name of Organisation | Type of Hospitality Received | |--------|----------------------------|------------------------------------------------------------------| | 16 Jan | Football Association | Lunch (Minister delivered speech) | | 06 Feb | Football Association | Dinner and ticket for football match (England v Brazil) | | 23 Feb | Rugby Football Union | Ticket to RBS Six Nations match (England v France) | | 27 Feb | Association of British Travel Agents | Reception | | 02 Mar | British Rowing | Lunch | | 18 Mar | Tourism Alliance | Reception |
### Minister for Culture, Communications & Creative Industries, Ed Vaizey MP
| Date | Name of Organisation | Type of Hospitality Received | |--------|----------------------------|------------------------------------------------------------------| | 09 Jan | GQ Magazine | Dinner to celebrate London Collections: Men’s | | 10 Jan | Arts Council England | Lunch | | 11 Jan | Arts Council England | Lunch | | 15 Jan | Weidenfeld and Nicholson | Lunch | | 15 Jan | TUC | Reception | | 15 Jan | Arts Council England | Reception |
1 Does not normally include attendance at functions hosted by HM Government; ‘diplomatic’ functions in the UK or abroad, hosted by overseas governments; minor refreshments at meetings, receptions, conferences, and seminars; and offers of hospitality which were declined. *indicates if accompanied by spouse/partner or other family member or friend. | Date | Location | Event Description | |--------|---------------------------------|-----------------------------------------------------------------------------------| | 16 Jan | V&A | Hollywood Costume Preview | | 16 Jan | British Museum | Lunch | | 17 Jan | National Museums Liverpool | Lunch | | 23 Jan | Philip Mould and Company | Lunch | | 29 Jan | Creative Coalition Campaign | Drinks reception | | 4 Feb | Delfont Mackintosh Theatres | Theatre ticket to Quatermaine’s Terms | | 7 Feb | Nimax Theatres | Theatre Tickets to Twelfth Night* | | 9 Feb | Chanel | Pre-BAFTA party | | 15 Feb | British Fashion Council | Press Launch and show including breakfast and later No Ten reception | | 18 Feb | Historic Royal Palaces | Entry to Tower of London\* | | 18 Feb | Tate | Private view of Lichtenstein and dinner | | 19 Feb | Anya Hindmarch | Fashion Week show | | 19 Feb | Southbank Centre | Theatre tickets\* | | 19 Feb | Barbican | Dinner | | 20 Feb | Universal | Brit Awards (including dinner and transport)\* | | 28 Feb | City of London | Court and Livery City Dinner | | 6 Mar | Richard Desmond, Northern and Shell | Lunch | | 7 Mar | LGA | Lunch | | 19 Mar | BT | Lunch | | 19 Mar | Nimax Theatre | Tickets to The Curious Incident of the Dog in the Night-time\* | | 21 Mar | Sony Pictures | Drink | | 21 Mar | Prince of Wales Theatre | Tickets to The Book of Mormon\* | | 25 Mar | Noel Coward Theatre | Tickets to Peter and Alice\* | | 26 Mar | What’s Next? Group | Breakfast meeting to discuss arts funding | | 26 Mar | British Museum | Reception and dinner for the opening of the exhibition: “Life and Death: Pompeii and Herculaneum” | | 27 Mar | Southbank Centre | National Funding Scheme launch and reception | | 27 Mar | Olivier Theatre | Tickets to This House\* |
## OVERSEAS TRAVEL
| Date(s) of trip | Destination | Purpose of trip | ‘No 32 (The Royal) Squadron’ or ‘other RAF’ or ‘Charter’ or ‘Eurostar’ | Number of officials accompanying Minister, where non-scheduled travel is used | Total cost including travel, and accommodation of Minister only | |-----------------|-------------|----------------|------------------------------------------------------------------------|--------------------------------------------------------------------------------|------------------------------------------------------------------| | Nil | | | | | | | 18 to 20 Feb | Istanbul and Ankara, Turkey | Delivering Global Events “Sports and EXPO’s” Mission to Turkey | | | £770 | | 25 Feb-26 Feb | Barcelona | To attend Mobile World Congress | | | £363.71 | | 10 Mar-15 Mar | South Korea and Taiwan | To lead UKTI Trade Mission | | | £4,017.68 | | 27 Mar | Brussels | To meet VP Almunia to discuss Broadband | | | £145.90 |
### MEETINGS WITH EXTERNAL ORGANISATIONS
**MEETINGS WITH NEWSPAPER AND OTHER MEDIA PROPRIETORS, EDITORS AND SENIOR EXECUTIVES**
| Secretary of State, Rt Hon Maria Miller MP | Date of Meeting | Name of Organisation | Purpose of Meeting | |-------------------------------------------|-----------------|----------------------|--------------------| | | Jan | Hacked Off | To discuss Leveson implementation | | | Jan | Lord Hunt, Transition Chairman | To discuss Leveson implementation | | | Jan | Michael McManus, Transition Director | To discuss Leveson implementation | | | Jan | Lord Black, Telegraph Chris Blackhurst, Independent Tony Danker, Guardian Lord Hunt, Transition Chairman Michael McManus, PCC David Newell, Newspaper Society Paul Vickers, Trinity Mirror John Witherow, News International Peter Wright, Associated Press Gareth Morgan, Northern & Shell | To discuss Leveson implementation | | | Jan | Digital Business First Campaign | To discuss broadband | | | Jan | Lord Black, Telegraph Pia Sarma, News International Peter Wright, Associated Press | To discuss Leveson implementation | | | Jan | Premier League | Introductory meeting | | | Jan | Ian Russell, Johnston Press | To discuss press regulation | | | Jan | Arts and Business | Introductory meeting | | | Jan | Gymbox, Virgin Active, Greenwich Leisure Limited, David Lloyd Leisure Group, Sport England | Roundtable discussion on sport | | | Jan | Chris Blackhurst, Independent Tony Danker, Guardian Lord Hunt, Transition Chairman Michael McManus, PCC Pia Sarma, News International | To discuss Leveson implementation |
______________________________________________________________________
2 Does not normally include meetings with Government bodies such as other Government Departments and Agencies, NDPB’s, Non-Ministerial Departments, Agencies, Government reviews and representatives of Parliament, devolved or foreign governments. | Date | Event | Participants | Purpose | |------|-------|--------------|---------| | Jan | Hacked Off | Paul Vickers, Trinity Mirror Peter Wright, Associated Press | To discuss Leveson implementation | | Jan | INCA, CityFibre Holdings, Rala | | To discuss broadband | | Jan | BBC | | Introductory meeting with new Director-General | | Jan | Church of England | | To discuss the Equal Marriage Bill | | Jan | Lionel Barber, Financial Times | | To discuss Leveson implementation | | Jan | John Witherow, News International | | To discuss Leveson implementation | | Jan | Ofcom | | To discuss UHF spectrum | | Jan | Lord Black and Murdoch MacLennan, Telegraph | | To discuss Leveson implementation | | Jan | Catholic Church | | To discuss the Equal Marriage Bill | | Jan | Lord Black, Telegraph Geraldine Elliott, Reynolds Porter Chamberlain Paul Vickers, Trinity Mirror Peter Wright, Associated Press | | To discuss Leveson implementation | | Jan | The Globe | | Introductory meeting | | Jan | Lord Black, Telegraph Lord Hunt, Transition Body Michael McManus, PCC Pia Sarma, News International Paul Vickers, Trinity Mirror Peter Wright, Associated Press | | To discuss Leveson implementation | | Jan | V&A | | Introductory meeting | | Jan | Wallace Collection | | Introductory meeting | | Jan | Royal Opera House | | Introductory meeting | | Jan | BPI, Independent Film and Television Alliance, Federation Against Copyright Theft, Premier League | | Introductory meeting to discuss the importance of copyright in promoting growth in the creative industries | | Jan | Google | | Introductory meeting | | Jan | Lord Black, Telegraph David Newell, Newspaper Society Reynolds Porter Chamberlain Peter Wright, Associated Press | | To discuss Leveson implementation | | Jan | English Heritage | | Meeting to discuss Heritage issues | | Jan | Zibrant, The Pink Shoe Club, Workingmums.co.uk | | To discuss collating Women in Business information | | Jan | Church of Wales | To discuss the Equal Marriage Bill | |-----|----------------|----------------------------------| | Jan | LOCOG, WSFF, Sport England, Telegraph, The Times, BBC, BskyB, ITV, Channel 4, BT, British Cycling, British Rowing, England Netball, FA, England Hockey, ECB | Roundtable to discuss women’s sport | | Jan | Stonewall | To discuss the Equal Marriage Bill | | Jan | Broadband Stakeholder Group | Introductory meeting | | Jan | Townswomen’s Guild, Federation of Soroptimist International Great Britain and Ireland, National Federation of Women's Institutes, National Council of Women, Business and Professional Women, British Federation of Women Graduates | Roundtable discussion on women’s engagement | | Jan | Leeds and Partners, Visit York, Welcome to Yorkshire, The Create Foundation, The Hilton Leeds City, West Yorkshire Playhouse, Harewood House, The Hepworth Wakefield, Leeds Rugby Foundation, Radisson BLU Hotels Leeds, Leeds Marriott, Captain Cook’s Memorial Museum, Wakefield Metropolitan District Council, Leeds City Council, Northern Ballet | To discuss tourism | | Jan | Welcome to Yorkshire | To discuss tourism and Tour de France | | Jan | Arts Council England, Donmar Theatre, Barbican, Aldeburgh Music, Bush Theatre, Birmingham Royal Ballet | Roundtable discussion on arts | | Jan | Lord Black, Telegraph David Newell, Newspaper Society Paul Vickers, Trinity Mirror Peter Wright, Associated Press | To discuss Leveson implementation | | Jan | BPI, Universal Music UK, Sony Music UK & Ireland, PIAS Entertainment Group | To discuss the creative industries and intellectual property | | Month | Event Details | |-------|---------------| | Jan | Lord Mayor of London Introductory meeting | | Jan | Lord Black, Telegraph David Newell, Newspaper Society Paul Vickers, Trinity Mirror Peter Wright, Associated Press To discuss Leveson implementation | | Jan | Creative Industries Council Meeting co-chaired with Secretary of State for Business, Innovation and Skills | | Feb | BBC Introductory meeting To discuss women’s sport | | Feb | Samsung Mobile Introductory meeting | | Feb | The Science Museum Introductory meeting | | Feb | Women’s Business Council Introductory meeting | | Feb | Arts Council England, Bolton & Quinn, Serpentine Gallery, Sage Gateshead, Baltic Centre for Contemporary Art, Roundhouse, English National Ballet, Manchester Int. Festival, Graeae Theatre, Young Vic, Cultural Olympiad, King’s Cultural Institute, Southbank Centre, Liverpool Everyman and Playhouse Roundtable discussion on arts | | Feb | Law Commission To discuss the Electronic Communications Code | | Feb | British Library Introductory meeting | | Feb | Lionel Barber, Financial Times Lord Black, Telegraph Murdoch MacLennan, Telegraph John Witherow, News International To discuss Leveson implementation | | Feb | Paul Dacre, Daily Mail To discuss Leveson implementation | | Feb | Hacked Off To discuss Leveson implementation | | Feb | Hacked Off To discuss Leveson implementation | | Feb | Bristol City Museums and Galleries and Bristol’s Deputy Mayor for Culture and Sport To discuss the work of Bristol City Museums and Galleries | | Feb | Watershed, Danceroom Spectroscopy, Bristol Media, Pervasive Media Studio, Opposable Games, Bristol City Council, Bristol Music Trust, Roundtable discussion on creative industries, growth and cultural education | | Date | Event | Details | |------|-------|---------| | Feb | Stroud Valley Art Space | To discuss the work of Stroud Valley Art Space | | Feb | Visit Britain, Visit England, Tourism Alliance, Association of British Travel Agents, Association of Leading Visitor Attractions, British Association of Leisure Parks, Piers and Attractions, British Hospitality Association, British Beer & Pub Association, British Holiday and Home Parks Association, UK Inbound, European Tour Operators Authority, People 1st | Roundtable discussion on tourism | | Feb | British Council | Introductory meeting | | Feb | Peter Wright, Associated Press Pia Sarma, News International David Newell, Newspaper Society Mark Burr, Press & Publisher’s Association Press | To discuss Leveson implementation | | Feb | Paul Vickers, Trinity Mirror David Newell, Newspaper Society Bindmans Solicitors | To discuss Leveson implementation | | Feb | Commonwealth War Graves Commission | Introductory meeting | | Feb | Somerset House | Introductory meeting | | Feb | British Museum | Introductory meeting | | Mar | Hacked Off | To discuss Leveson implementation | | Mar | Highflyer Group | To discuss Olympic legacy | | Mar | BT | To discuss broadband delivery | | Mar | Arts Council England, Barbican, British Film Institute, English National Ballet, English National Opera, Liverpool Biennial, Phyllida Lloyd (Director), Nimax Theatres, Random House, Royal Court Theatre, Royal Shakespeare Company, Siobhan Davies Company, Southbank Centre, Tate | To discuss women in arts | | Date | Event | Details | |------|-------|---------| | Mar | Whitechapel Gallery | Hacked Off | To discuss Leveson implementation | | Mar | BT | To discuss broadband delivery | | Mar | Asda Mobile, BT Group, EE, Freeview, Google Europe, Huawei Technologies (UK) Co Ltd, KC, Microsoft, Nokia, O2, RIM – Blackberry, Three, Virgin Media, Vodafone, Zibrant | Roundtable discussion on women’s engagement | | Mar | British Paralympic Association | Introductory meeting | | Mar | Arts Council England, Bristol Museums and Art Galleries, British Museum, Eden Project, Heritage Lottery Fund, Imperial War Museums, Manchester City Gallery and the Whitworth Art Gallery, Natural History Museum, SS Great Britain, Tate | Roundtable discussion on museums | | Mar | Amateur Swimming Association, British Olympic Association, Lord Coe, England and Wales Cricket Board, England Hockey, Football Association, Baroness Grey-Thompson, Lawn Tennis Association, National Association of Head Teachers, OFSTED, Premier League, Rugby Football League, Rugby Football Union, Sport England, UK Athletics, Youth Sport Trust | Roundtable discussion on school sports | | Mar | Public Sector Equality Duty Review | Introductory meeting with the chair of the Review | | Mar | FORWARD, Imkaan, Mothers’ Union, Muslim Women’s Network, National Alliance of Women’s Organisations, Scottish Women’s Convention, UN Women UK National Committee, Wales Assembly of Women, Women’s Aid, Women’s Resource Centre | Roundtable discussion on the Commission on the Status of Women | | Mar | BSkyB | Introductory meeting | | Mar | Fatherhood Institute, Gingerbread, Maternity Action, Mumsnet, National Childbirth | Roundtable discussion on women’s engagement | | Date of Meeting | Name of Organisation | Purpose of Meeting | |-----------------|----------------------|--------------------| | Jan | Premier League | Introductory meeting | | Jan | Merlin Communications| Introductory meeting | | Jan | British Association of Leisure Parks, Piers and Attractions (BALPPA) | Introductory meeting | | Jan | Football Association | Regular catch-up on football governance | | Jan | Bingo Association | Introductory meeting | | Jan | Lawn Tennis Association | Introductory meeting | | Jan | Paramount Studios | To discuss new tourism attractions | | Jan | Tourism Alliance | Roundtable discussion | | Jan | BBC | Olympic coverage review | | Jan | Performance Directors Forum | Quarterly update from Performance Directors on their sport. | | Feb | Rugby Football Union, Rugby Football League, Lawn Tennis Association, England and Wales Cricket Board, Football Association, Lord Coe | To discuss Olympic and Paralympic legacy | | Mar | Lawn Tennis Association | To discuss sports participation | | Mar | Rugby 2015 | Update on Rugby 2015 World Cup preparations | | Mar | Rugby Football Union, Rugby Football League, Lawn Tennis | Regular update from Chief Executives on their sport | | Date of Meeting | Name of organisation | Purpose of meeting | |-----------------|----------------------|--------------------| | Mar | Marylebone Cricket Club | To discuss strategic plan |
**Minister for Culture, Communications & Creative Industries, Ed Vaizey MP**
| Date of Meeting | Name of organisation | Purpose of meeting | |-----------------|----------------------|--------------------| | Jan | Young Vic | To discuss What Next? | | Jan | BT | Regular meeting to discuss progress of Broadband roll-out | | Jan | Ian Livingstone | To discuss Next Gen. report Academy Proposal | | Jan | City of London Corporation | To discuss City of London arts and cultural activities | | Jan | RIBA | Introductory meeting | | Jan | Imaginarium Studios | To discuss creative tax credits | | Jan | Ofcom | Regular meeting to discuss regulatory issues | | Jan | BT | Regular meeting to discuss progress of Broadband roll-out | | Jan | Information Commissioners Office | To discuss nuisance calls | | Jan | Design Council Cabe | To discuss architecture | | Jan | Imagination Technologies | To discuss digital radio | | Jan | Online Centres Foundation | UK online centres and libraries | | Jan | Westminster Council | To discuss planning fee reform | | Jan | TSB, NESTA, Creative England, BFI, British Council, CCSkills, Creative Skillset, ACE, UKTI, LGA, BBC | To discuss creative industries strategy and an update on the technical working group | | Jan | National Skills Academy | To discuss further education and the creative employment programme | | Jan | Young Vic | To discuss ‘What Next?’ | | Jan | Ofcom | To discuss competition issues | | Jan | HSBC and Citi Research | To discuss telecoms market in the UK | | Jan | BT | Regular meeting to discuss progress of Broadband roll-out | | Jan | Guildhall School of Music, Barbican Centre and Cause4 | To discuss Barbican East London and City Culture Hub | | Jan | Steve Penk, 96.2fm The Revolution | To discuss general commercial radio | | Jan | Finch and Partners | To discuss arts and philanthropy | | Jan | Ofcom, BT | Regular meeting to discuss progress of Broadband roll-out | | Jan | Arts Council England, Donmar Theatre, Barbican, Aldeburgh | Roundtable discussion on arts | | Month | Event | Details | |-------|-------|---------| | Jan | BT | To discuss Broadband Delivery | | Jan | Bettany Hughes | To discuss her upcoming projects | | Jan | Ofcom and Information Commissioners Office | To discuss on future landscape | | Jan | Terry Farrell and Partners | Architecture Review | | Jan | Ofcom | To discuss Video on Demand | | Jan | BT, Talk Talk, BskyB, VirginMedia, ISPA | Internet Service Providers roundtable on child safety online | | Jan | Nesta, Harper Collins, Warner Bros., Creative Skill Set, Google, ITV, BSkyB, ACE, BBC, CBI, Microsoft, UK Music, Double Negative, Tiga Rebellion, Live Nation/ CC Skills, The Advertising Association, Eidos, Telegraph Media Group, Design Council, PACT, Karmarama/IPA, Publishers Association, Creative England, Amazon UK, UKIE, British Fashion Council, RIBA, TSB, Ingenious, Sorrell Foundation, British Phonographic Industry, Demos | To discuss data and measurement, the Creative Industries Council website, access to finance, IP and skills | | Feb | BT | Regular meeting to discuss progress of Broadband roll-out | | Feb | BT | Regular meeting to discuss progress of Broadband roll-out | | Feb | Nigel Lythgoe Productions | To discuss creative tax reliefs | | Feb | Arts Council England, Bolton & Quinn, Serpentine Gallery, Sage Gateshead, Baltic Centre for Contemporary Art, Roundhouse, English National Ballet, Manchester Int. Festival, Graeae Theatre, Young Vic, Cultural Olympiad, King's Cultural Institute, Southbank Centre, Liverpool Everyman and Playhouse | Roundtable discussion on arts | | Feb | Sage Gateshead | To discuss Music Hubs | | Feb | Nominet | To discuss internet governance | | Feb | Westminster City Council | To discuss tall buildings | | Feb | Society of Chief Librarians | Quarterly catch-up | | Date | Event | Details | |------|-------|---------| | Feb | Liberty Global | Introductory meeting | | Feb | Ofcom, DRUK, BBC, RadioCentre, Community Media Association, Intellect, Consumer Expert Group (CEG) Age UK Bauer, UTV, Arqiva | Digital Radio Switchover roundtable | | Feb | BT, UK Power Networks, Ofgem | To discuss rural broadband | | Feb | Royal Academy of Dance | To discuss honours | | Feb | Ofcom | Regular meeting to discuss regulatory issues | | Feb | Federation Against Copyright Theft and BPI | To discuss ‘DEA Light’ | | Feb | British Council | To discuss honours | | Feb | Lord (Guy) Black, Telegraph Media Group and Advertising Standards Board of Finance | To discuss Advertising Standards Authority’s digital remit | | Feb | Natural History Museum, Historic Royal Palaces, National Portrait Gallery | To discuss Board Effectiveness | | Feb | Southbank Centre | To discuss Southbank Centre Redevelopment | | Feb | Digital Mobile Spectrum Ltd | To discuss 4G interference with TV signals | | Feb | Ustwo | To discuss Ebacc | | Feb | Childrens’ Charities’ Coalition on Internet Safety, London School of Economics, Parentzone, BT, Tesco, Samsung, Safer Internet Centre, Facebook, IWF, NSPCC, BBC. | Roundtable discussion on child safety measures in the Communications Review | | Feb | Lord Julian Fellowes | To discuss honours | | Feb | Waddesdon Manor | To discuss proposal for event at the Manor | | Mar | National Parks Associations | To discuss Clause 8 G&I Bill (broadband) | | Mar | Rogers Stirk Harbour and Partners | To discuss architecture and competition process | | Mar | BT | Regular meeting to discuss progress of Broadband roll-out | | Mar | Larry Strickling, Assistant Secretary for Communications and Information and Administrator, National Telecommunications and Information Administration | To discuss post WCIT-12 (World Conference on International Telecommunications) issues and a forward look at the next major ITU conference | | Date | Event | Description | |------|-------|-------------| | Mar | Talk Talk | To discuss telecoms regulation | | Mar | Ofcom | Regular meeting to discuss regulatory issues | | Mar | Gerry Pennell (independent contractor) | Interview on the rural programme | | Mar | Digital Mobile Spectrum Ltd | To discuss mitigation of 4G interference in digital television | | Mar | Tony Wang, Twitter | Introductory meeting | | Mar | Ofcom, BT | Regular meeting to discuss progress of Broadband roll-out | | Mar | Catapult | To discuss where Catapult fits in to creative industries | | Mar | Dee Ford and Sarah Vickery, Bauer Radio | Judging Session for The Outstanding Team of the Year | | Mar | Ashley Tabor, This is Global | To discuss digital radio and the Communications White Paper | | Mar | BSkyB | Introductory meeting | | Mar | NESTA, LGA, UKTI, Creative & Cultural Skills Sector Skills Council, EE, Creative England, Creative Skillset, British Council, Arts & Humanities Research Council | To discuss an update on Technical Working Group and DCMS Data and Measurement consultation, access to the Finance Creative industries Council Working Group and the Creative Industries Strategy review | | Mar | Creative England | To discuss the role of the Creative Industries Council in the EOS (Employers Ownership of Skills) initiative | | Mar | John Stalker Productions Limited | To discuss John Stalker’s agenda for theatre investment. | | Mar | Churches Conservation Trust, English Heritage, Esmee Fairbairn Foundation, Heritage Alliance, Heritage Lottery Fund, Historic Houses Association, Historic Royal Palaces, National Trust for Places of Historic Interest or Natural Beauty, Urban Splash, VisitEngland, Westminster Council, Griff Rhys Jones | Roundtable discussion on heritage | | Mar | Rob Kingham, Rob Colley and Adam Pappini, Deloitte Real Estate | To discuss Blythe House | | Date | Organization | Event Description | |------|--------------|-------------------| | Mar | Financial Times | To discuss broadband and the digital scene | | Mar | Terry Farrell and Partners | Informal press briefing with Sir Terry Farrell on the launch of his review of architecture and the built environment | | Mar | Ofcom, BT | Regular meeting to discuss progress of Broadband roll-out | | Mar | National Museum Directors’ Council | Final meeting with current Chair |
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d2b49f9d694d07665e1526f9b0762ee3fe69d00d | DCMS Ministerial hospitality, overseas travel and meetings with external organisations, Newspapers and other media proprietors, editors and senior executives
1 July – 30 September 2013
## GIFTS GIVEN OVER £140
| Secretary of State, Rt Hon Maria Miller MP | Date gift given | To | Gift | Value | |-------------------------------------------|-----------------|----|------|-------| | | Nil | | | | | Minister for Sport and the Olympics, Rt Hon Hugh Robertson MP | Date gift given | To | Gift | Value | | | Nil | | | | | Minister for Culture, Communications & Creative Industries, Ed Vaizey MP | Date gift given | To | Gift | Value | | | Nil | | | |
## GIFTS RECEIVED OVER £140
| Secretary of State, Rt Hon Maria Miller MP | Date gift received | From | Gift | Value | Outcome | |-------------------------------------------|--------------------|------|------|-------|---------| | | Nil | | | | | | Minister for Sport & the Olympics, Hugh Robertson MP | Date gift received | From | Gift | Value | Outcome | | | Nil | | | | | | Minister for Culture, Communications & Creative Industries, Ed Vaizey MP | Date gift received | From | Gift | Value | Outcome | | | Nil | | | | |
## HOSPITALITY
### Secretary of State, Rt Hon Maria Miller MP
| Date | Name of Organisation | Type of Hospitality Received | |-------|---------------------------------------|------------------------------------------------------------------| | 4 Jul | All England Lawn Tennis Club | Tickets to Wimbledon Championships\* | | 7 Jul | All England Lawn Tennis Club | Tickets to Wimbledon Men’s singles final\* | | 10 Jul| The Globe Theatre | Tickets to see A Midsummer Night's Dream\* | | 12 Jul| BBC | Tickets\* to First Night of the Proms | | 24 Jul| The Old Vic | Tickets to see Sweet bird of Youth\* | | 26 Jul| Sainsbury’s | Tickets to Sainsbury's Anniversary Games\* | | 28 Jul| London Legacy | Tickets to Sainsbury's Anniversary Games\* | | 28 Aug| Edinburgh International Festival | Ticket to 'First Love’ | | 7 Sep | BBC Trust | Tickets to Last Night of the Proms\* | | 19 Jul| Marylebone Cricket Club | Ticket to Ashes test Match | | 1 Aug | Lancashire County Cricket Club | Ticket to Ashes test match | | 2 Aug | Countess of March | Tickets to Good wood racing\* | | 25 Aug| Surrey County Cricket Club | Ticket to Test Match | | 26 Aug| UK Athletics | Tickets to London Anniversary Games\* |
### Minister for Sport and the Olympics, Rt Hon Hugh Robertson MP
| Date | Name of Organisation | Type of Hospitality Received | |-------|---------------------------------------|------------------------------------------------------------------| | 3 Jul | British Olympic Association | Overnight Accommodation in Geneva | | 7 Jul | All England Lawn Tennis Club | Tickets to Wimbledon Men’s singles final\* | | 19 Jul| Marylebone Cricket Club | Ticket to Ashes test Match | | 1 Aug | Lancashire County Cricket Club | Ticket to Ashes test match | | 2 Aug | Countess of March | Tickets to Good wood racing\* | | 25 Aug| Surrey County Cricket Club | Ticket to Test Match | | 26 Aug| UK Athletics | Tickets to London Anniversary Games\* |
______________________________________________________________________
1 Does not normally include attendance at functions hosted by HM Government; ‘diplomatic’ functions in the UK or abroad, hosted by overseas governments; minor refreshments at meetings, receptions, conferences, and seminars; and offers of hospitality which were declined. \*indicates if accompanied by spouse/partner or other family member or friend. | Date | Name of Organisation | Type of Hospitality Received | |--------|-----------------------------------------------------------|------------------------------------------------------------------| | 2 Sep | British Horseracing Authority | Dinner | | 12 Sep | World Triathlon Grand Final | Reception |
**Minister for Culture, Communications & Creative Industries, Ed Vaizey MP**
| Date | Name of Organisation | Type of Hospitality Received | |--------|-----------------------------------------------------------|------------------------------------------------------------------| | 2 Jul | The Carphone Warehouse | Dinner Party | | 3 Jul | Ark Music Gala | Tickets to event\* | | 8 Jul | Tricycle Theatre | Ticket to performance of Brackenmore | | 9 Jul | David Lewis, Co-chair of Commission for Looted Art and Europe and of David Lewis and Partners | Lunch | | 9 Jul | Tate Britain | Private viewing of Lowry and the Painting of Modern Life | | 10 Jul | Hobart Capital Markets | Lunch | | 10 Jul | Opera North | Reception | | 12 Jul | Financial Times | Lunch | | 23 Jul | Objective Productions | Lunch | | 29 Jul | Bristol Old Vic Proms | Ticket to opening night | | 30 Jul | Saffery | Lunch | | 31 Jul | Bush Theatre | Tickets to Josephine & I\* | | 01 Aug | National Theatre | Tickets to Othello\* | | 20 Aug | Noel Coward | Tickets to The Cripple of Irishmann * | | 22 Aug | Young Vic Theatre | Tickets to A season on the Congo\* | | 27 Aug | Duchess Theatre | Tickets to Fences\* | | 29 Aug | Richard Desmond, Express Newspapers | Dinner | | 02 Sep | Telefónica | Campus Party Europe | | 03 Sep | GQ Men of the Year awards | Tickets to event\* | | 07 Sep | BBC | Tickets to Last night of the Proms\* | | 13 Sep | British Fashion Council | Ticket to London Fashion Week | | 18 Sep | London Design Festival | Exhibition Opening | | 18 Sep | Qatar Museum Authority | Exhibition Opening |
## OVERSEAS TRAVEL
| Date(s) of trip | Destination | Purpose of trip | ‘No 32 (The Royal) Squadron’ or ‘other RAF’ or ‘Charter’ or ‘Eurostar’ | Number of officials accompanying Minister, where non-scheduled travel is used | Total cost including travel, and accommodation of Minister only | |-----------------|-------------|----------------|---------------------------------------------------------------------|--------------------------------------------------------------------------------|---------------------------------------------------------------------| | Nil | | | | | | | **Secretary of State, Rt Hon Maria Miller MP** | | | | | | | 03-04/07/13 | Lausanne, Switzerland | Presentation to IOC – Youth Olympic Games | British Airways Flight | Nil | £233 | | 21/07/13 | Paris, France | Tour de France final | Eurostar | Nil | £309 | | 17-18/09/13 | Mons, Belgium/Somme region, France | Visit key sites to be used in forthcoming WW1 commemorative events | Eurostar | 1 | £755 | | **Minister for Sport and the Olympics, Rt Hon Hugh Robertson MP** | | | | | | | **Minister for Culture, Communications & Creative Industries, Ed Vaizey MP** | | | | | | | 24/09/20131 | Paris, France | Meeting of EU Ministers | Eurostar | Nil | £288 | MEETINGS WITH EXTERNAL ORGANISATIONS(^2) (INCLUDING MEETINGS WITH NEWSPAPER AND OTHER MEDIA PROPRIETORS, EDITORS AND SENIOR EXECUTIVES)
| Secretary of State, Rt Hon Maria Miller MP | Date of Meeting | Name of Organisation | Purpose of Meeting | |-------------------------------------------|-----------------|----------------------|--------------------| | | 3 Jul | Lord Black Telegraph, Peter Wright, Associated News and David Newell, Newspaper Society | To discuss independent press self-regulation | | | 3 Jul | Hacked Off | To discuss independent press self-regulation | | | 8 Jul | Lee Valley Regional Park Authority | To discuss legacy of Olympic and Paralympic Games in East London | | | 15 Jul | BT B4RN (Lancashire) Trailways (Dorset) Michael Armitage – Thurlestone (Devon) Cotswolds Broadband (Oxfordshire) Noorthmoor Broadband Project (Oxfordshire) Ken Pelton – Noke (Oxfordshire) INCA | To discuss rural broadband | | | 15 Jul | Women’s Business Council | To discuss the WBC launch | | | 23 Jul | Richard III Exhibition, Leicester | Regional visit | | | 25 Jul | Pinewood Studios | To discuss film policy | | | 29 Jul | Paul Goodman | To discuss BBC governance | | | 28 Aug | Edinburgh International Festival | To discuss the Edinburgh International Festival | | | 2 Sep | Public Sector Equality Duty Review Steering Group | To discuss PSED review | | | 3 Sep | Lord Pattern, BBC Trust | To discuss speech at the RTS Cambridge Convention | | | 9 Sep | Lord Black, Telegraph and Peter Wright, Associated Press | To discuss independent press self-regulation |
(^2) Does not normally include meetings with Government bodies such as other Government Departments and Agencies, NDPB’s, Non-Ministerial Departments, Agencies, Government reviews and representatives of Parliament, devolved or foreign governments. | Date | Name of Organisation | Purpose of Meeting | |------------|--------------------------------------------------------------------------------------|------------------------------------------------------------------------------------| | 18 Sep | Universal Music | To discuss women in the workplace | | 18 Sep | David Newell, Newspaper Society | To discuss independent press self-regulation | | 25 Sep | Chartered Institute of Personnel Development | Roundtable to discuss older workers | | | Age UK | | | | Centrica PLC | | | | The Age and Employment Network | | | | Employers’ Network for Equality and Inclusion | | | | Older Women’s Network, Europe | | | | Carers UK | |
**Minister for Sport and the Olympics, Rt Hon Hugh Robertson MP**
| Date | Name of Organisation | Purpose of Meeting | |------------|--------------------------------------------------------------------------------------|------------------------------------------------------------------------------------| | 10 Jul | Meeting ABTA – the Travel Association | To discuss in-bound and domestic tourism | | 15 Jul | Meeting British Horseracing Authority and Jockey Club | To discuss developments in horseracing | | 22 Jul | British Rowing | To discuss prep for Rowing World Cup | | 23 Jul | British Rowing, British Canoeing, British Archery, British Equestrian, British Sailing, British Short Track Speed Skating, | To discuss Winter Olympics in Sochi and Olympics in Rio. | | 23 Jul | British Basketball | To discuss developments in the sport | | 29 Jul | New Schools Network | To discuss sport and free schools | | 30 Jul | Westfield | To discuss legacy of Olympic Site | | 6 Aug | Horserace Betting Levy Board | To discuss current position re: levy | | 7 Aug | Drayton Manor Theme Park, Dudley Zoological Gardens, Culture Coventry, Sea Life Centre Birmingham, West Midlands Safari and Leisure Park | Roundtable meeting with local Staffordshire tourism stakeholders – | | Date | Name of organisation | Purpose of meeting | |------------|----------------------------------------------------------|--------------------------------------------------------| | 7 Aug | National Memorial Arboretum | Meeting with the national arboretum team | | 27 Aug | British Equestrian Foundation | To discuss 2018 World Equestrian Games | | 2 Sep | British Horseracing Authority | Introductory meeting with new chair | | 5 Sep | Lawn Tennis Association | To discuss LTA’s search for a new CEO | | 5 Sep | England Rugby 2015 | To discuss preparations for World Cup in 2015 | | 10 Sep | Camelot | To discuss lottery issues | | 10 Sep | British Volleyball | To discuss the future of the sport | | 11 Sep | Tour de France | To discuss preparations for Grand Depart | | 12 Sep | Football Association, Football | To discuss progress and timetable for reform | | 16 Sep | Tourism Alliance | To discuss tourism issues | | 16 Sep | Jason Roberts Foundation | To discuss a concerted strategy for addressing racism in football | | 16 Sep | Motor Sports Association | Introductory Meeting with CEO | | 24 Sep | Board of Tour de France | To discuss Grand Depart | | 25 Sep | Football Association | To discuss Chair’s vision for FA going forward | | 26 Sep | British Equestrian | To discuss World Equestrian Games 2018 |
**Minister for Culture, Communications & Creative Industries, Ed Vaizey MP**
| Date | Name of organisation | Purpose of meeting | |------------|----------------------------------------------------------|--------------------------------------------------------| | 3 Jul | Torch Partners | To discuss the future of the UK Tech economy | | 3 Jul | BFI | To discuss film policy | | 4 Jul | Surrey County Council | To discuss broadband | | 8 Jul | Olaf Swantee, EE | To discuss electronic communications code and planning | | 11 Jul | Which? | To discuss nuisance calls | | 11 Jul | Which? ICO, TPS, Citizens’ Advice, Communications | Roundtable to discuss nuisance calls | | Date | Event | Details | |--------|--------------------------------------------|----------------------------------------------| | 15 Jul | BAFTA | General Discussion | | 22 July| Foundling Museum | To discuss funding of the Foundling Museum | | 22 July| IP Alliance | To discuss intellectual property | | 23 July| The Heritage Alliance | To discuss the protection of historic houses | | 23 July| Nesta | To discuss Nesta’s future programme of work | | 23 July| Naya Management LLP | Introductory meeting | | 25 July| BT | To discuss Worcestershire | | 26 July| Rutherford Appleton Laboratory | To discuss cameras for International Space Station | | 28 Aug | The Henry Moore Foundation | To discuss Moore Rodin exhibition | | 4 Sep | Spot the Sexism | Meeting to discuss sexism in the media | | 5 Sep | Music Education Council | Introductory meeting with new chair | | 11 Sep | James Purnell, BBC | To discuss digital radio switchover | | 13 Sep | Florence Nightingale Museum | To learn more about the museum | | 16 Sep | National Media Museum Bradford Academy | To discuss the future of the national media museum | | | BTL Group Ltd | | | | Bradford Council | | | | City of Bradford Metropolitan District Council | | | | Bradford College | | | | Science Museum Group | | | 16 Sep | O2 | 4G Summit | | 17 Sep | The Hepworth | Tour of collection |
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01d3f0d8cf5e655cba05e30781358fc68dfb6e45 | DCMS Business Costs
1 July – 30 September 2012
### 1 July – 31 September 2012
#### i) Business Costs
**DCMS – Jonathan Stephens, Permanent Secretary**\
**Business costs: 1 July – 30 September 2012**
| DATES | DESTINATION | PURPOSE | TRAVEL | OTHER (Including Hospitality Given) | Total Cost £ | |---------|-------------|---------|--------|-------------------------------------|--------------| | | | | Air | Rail | | | 04/07/12| | | | | Reception £251.67 | | 27/07/12| | | | | Lunch £55.80 |
**DCMS – Jeremy Beeton, Director General, Government Olympic Executive**\
**Business costs: 1 July – 30 September 2012**
| DATES | DESTINATION | PURPOSE | TRAVEL | OTHER (Including Hospitality Given) | Total Cost £ | |-------|-------------|---------|--------|-------------------------------------|--------------| | | | | Air | Rail | | | | | | | | | | | | | | | | | NIL | | | | | | ii) Hospitality
DCMS – Jonathan Stephens, Permanent Secretary Business costs: 1 July – 30 September 2012
| Date | Organisation Name | Type of Hospitality Received | |------------|------------------------------------|---------------------------------------| | 13/07/12 | BBC | Ticket to First night of Proms | | 23/07/12 | International Olympic Committee | Reception & Performance | | 12/09/12 | Royal Shakespeare Company | Reception & Performance |
DCMS – Jeremy Beeton, Director General, Government Olympic Executive Business costs: 1 July – 30 September 2012
| Date | Organisation Name | Type of Hospitality Received | |------|-------------------|------------------------------| | NIL | | |
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4594648183fe4cb4979bd3293ec0ec16a141b344 | DCMS Ministerial hospitality, gifts, overseas travel and meetings with external organisations including newspapers and other media proprietors, editors and senior executives
1 July - 30 September 2012
## GIFTS GIVEN OVER £140
| Date gift given | To | Gift | Value | |-----------------|----|------|-------| | Nil | | | | | Nil | | | | | Nil | | | | | Nil | | | |
## GIFTS RECEIVED OVER £140
| Date gift received | From | Gift | Value | Outcome | |--------------------|------|------|-------|---------| | Nil | | | | | | Nil | | | | | | Nil | | | | | | Nil | | | | |
### Department for Culture, Media and Sport
#### Transparency
| Date gift received | From | Gift | Value | Outcome | |--------------------|------|------|-------|---------| | Nil | | | | |
**Minister for Tourism and Heritage, John Penrose MP (to 5 September)**
| Date gift received | From | Gift | Value | Outcome | |--------------------|------|------|-------|---------| | Nil | | | | |
### HOSPITALITY
**Secretary of State, Rt Hon Jeremy Hunt MP (to 4 September)**
| Date | Name of Organisation | Type of Hospitality Received (include an asterisk against the entry if accompanied by spouse/partner or other family member or friend) * | |--------|------------------------------|----------------------------------------------------------------------------------------------------------------------------------| | 8 Jul | Motor Sports Association | British Grand Prix Tickets\* | | 14 Jul | Channel 4 and Paralympics GB | Dinner | | 17 Jul | British Museum | Ticket and Reception | | 21 Jul | BT | River of Music Tickets\* | | 23 Jul | International Olympic Committee | Dinner\* | | 14 Aug | Cambridge Theatre | Matilda Tickets\* | | 15 Aug | Noel Coward Theatre | Julias Caesar Tickets\* | | 19 Aug | The Tate Modern | Damien Hirst Tickets\* | | 21 Aug | BBC Proms | Tickets\* | | 22 Aug | BBC | Lunch | | 22 Aug | Glyndebourne | Opera Tickets\* |
**Secretary of State, Rt Hon Maria Miller MP (from 4 September)**
| Date | Name of Organisation | Type of Hospitality Received | |--------|------------------------------|-------------------------------------------------------------------------------------------------------------------------------------| | 11 Sep | National Cider Makers | Reception | | 17 Sep | Burberry Prorsum | Ticket to Womenswear Show | | 19 Sep | Clarence House | Reception for Olympic and Paralympic volunteers | | 25 Sep | The Young Vic Theatre | Ticket | | 26 Sep | Southbank Centre | Ticket |
**Minister for Sport and the Olympics, Rt Hon Hugh Robertson MP**
______________________________________________________________________
1 Does not normally include attendance at functions hosted by HM Government; ‘diplomatic’ functions in the UK or abroad, hosted by overseas governments; minor refreshments at meetings, receptions, conferences, and seminars; and offers of hospitality which were declined. *indicates if accompanied by spouse/partner or other family member or friend. | Date | Name of Organisation | Type of Hospitality Received | |--------|-----------------------------------------------------------|------------------------------------------------------------------| | 02 Jul | Motorsport Industry Association | Summer Reception | | 04 Jul | All England Lawn Tennis Club | Four Wimbledon tickets and lunch * | | 05 Jul | London Bridge Quarter | Dinner * | | 08 Jul | Motor Sports Association | British Grand Prix tickets * | | 12 Jul | Great Britain Hockey | Gala Dinner | | 19 Jul | Leeds Castle | Dinner | | 20 Jul | LOCOG | Reception | | 23 Jul | LOCOG and the IOC | Drinks reception for opening of 124th IOC Session * | | 24 Jul | LOCOG | Drinks reception | | 24 Jul | International Federation | Dinner | | 25 Jul | LOCOG | Reception for ceremony rehearsal* | | 25 Jul | World Olympians Association | Olympians Gala, dinner | | 26 Jul | British Olympic Association | Lunch | | 26 Jul | Rt Hon the Lord Mayor of the City of London and the Mayor of London | Reception | | 26 Jul | Badminton England | Reception | | 28 Jul | International Cycling Union and British Cycling | Reception | | 30 Jul | Union Cycliste Internationale | Reception | | 31 Jul | British Olympic Association | Reception | | 1 Aug | British Equestrian Federation | Reception | | 2 Aug | Archery GB | Dinner reception | | 6 Aug | GB Taekwondo | Reception | | 7 Aug | Pentathlon GB | Drinks reception | | 10 Aug | International Hockey Federation | Lunch | | 10 Aug | SportScotland, EventScotland, Glasgow 2014 Ltd | Reception | | 23 Aug | Euston Estate | Opening Ceremony of Longines FEI World Equine Endurance Championships | | 25 Aug | Rugby Football League | Ticket to Challenge Cup Final | | 28 Aug | Paralympic GB | Drinks reception | | 30 Aug | LOCOG | Dinner * | | 31 Aug | Paralympic GB | President’s Reception | | 2 Sep | England and Wales Cricket | Ticket to England vs. South Africa | | Date | Name of Organisation | Type of Hospitality Received | |--------|---------------------------------------------|------------------------------| | 10 Sep | International Paralympic Committee | Cricket match | | 10 Sep | BOA and BPA | Team GB Parade ticket | | 11 Sep | The FA | England v Ukraine ticket | | 12 Sep | Mayor of London | Drinks reception | | 18 Sep | LOCOG | Drinks reception |
**Minister for Tourism and Heritage, John Penrose MP (to 5 September)**
| Date | Name of Organisation | Type of Hospitality Received | |--------|---------------------------------------------|------------------------------| | 11 Jul | Salisbury Council | Drinks and dinner | | 12 Jul | Salisbury Cathedral | Breakfast |
**Minister for Culture, Communications & Creative Industries, Ed Vaizey MP**
| Date | Name of Organisation | Type of Hospitality Received | |--------|---------------------------------------------|------------------------------| | 2 Jul | Lisson Gallery | Lunch | | 3 Jul | Pink Elephant | Lunch | | 9 Jul | Sadler’s Wells Theatre | Tickets and reception * | | 11 Jul | The Old Vic Theatre | Tickets * | | 12 Jul | Bush Theatre | Gala event | | 15 Jul | The Mayor of London and London 2012 Festival| Launch event; drinks and canapés| | 16 Jul | The Science Museum | Lunch | | 16 Jul | Tate Gallery | Launch reception | | 20 Jul | Microsoft | Lunch | | 22 Jul | BT River of Music event | Tickets * | | 24 Jul | Globe Theatre | Dinner and tickets\* | | 25 Jul | Design Museum | Ticket\* | | 15 Aug | Delfont Mackintosh Theatres | Tickets * | | 29 Aug | Sony Pictures Entertainment | Lunch | | 04 Sep | GQ | Dinner\* | | 10 Sep | Jeremy Mayhew | Lunch | | 11 Sep | Royal Academy | Ticket | | 15 Sep | Bristol Old Vic | Dinner | | 17 Sep | London Design Festival | Dinner | | 18 Sep | London 2012 Festival | Closing reception | | 20 Sep | The Times | Lunch | | 24 Sep | Royal Opera House | Tickets | | 26 Sep | Royal Opera House | Tickets | | 29 Sep | Royal Opera House | Tickets |
## OVERSEAS TRAVEL
| Date(s) of trip | Destination | Purpose of trip | ‘No 32 (The Royal) Squadron’ or ‘other RAF’ or ‘Charter’ or ‘Eurostar’ | Number of officials accompanying Minister, where non-scheduled travel is used | Total cost including travel, and accommodation of Minister only | |-----------------|-------------|----------------|---------------------------------------------------------------------|--------------------------------------------------------------------------------|---------------------------------------------------------------------| | 4 Jul | Brussels | To discuss local TV | | | £309 | | | | | | | | | Secretary of State, Rt Hon Maria Miller MP (from 4 September) | Nil | | | | | | Minister for Sport and the Olympics, Rt Hon Hugh Robertson MP | 22 Jul | Paris | Tour de France | Eurostar | £191 | | Minister for Culture, Communications & Creative Industries, Ed Vaizey MP | Nil | | | | | | Minister for Tourism and Heritage, John Penrose MP (to 5 September) | Nil | | | | | MEETINGS WITH EXTERNAL ORGANISATIONS(^2) (INCLUDING MEETINGS WITH NEWSPAPER AND OTHER MEDIA PROPRIETORS, EDITORS AND SENIOR EXECUTIVES)
| Secretary of State, Rt Hon Jeremy Hunt MP (to 4 September) | Date of Meeting | Name of Organisation | Purpose of Meeting | |-------------------------------------------------------------|-----------------|----------------------|--------------------| | Jul | LOCOG | Discuss London 2012 preparations | | Jul | BT | Discuss broadband | | Jul | Lord Guy Black, Telegraph | General catch-up | | Jul | BT | Discuss broadband | | Jul | Vodafone | Discuss 4G auction | | Jul | Transport for London | Discuss London 2012 preparations | | Jul | Sir Ray Tindle, Tindle Newspaper Group and Lord Guy Black, The Telegraph | General catch-up | | Jul | IMF | General catch-up | | Jul | Weinstein Company | Discuss film production issues | | Jul | Old Vic Theatre | General catch-up | | Jul | ASTRA | Discuss local TV | | Aug | Ann Romney | Introductory meeting | | Aug | Evgeny Lebedev, Evening Standard | General catch-up | | Aug | BT | Discuss broadband | | Aug | LOCOG | Discuss Cultural Olympiad | | Aug | Telefonica/O2 | Discuss 4G auction | | Sep | Telefonica/O2, Vodafone, Everything Everywhere, Three | Discuss 4G auction |
| Secretary of State, Rt Hon Maria Miller MP (from 4 September) | Date of Meeting | Name of Organisation | Purpose of Meeting | |-------------------------------------------------------------|-----------------|----------------------|--------------------| | Sep | British Paralympic Association | Introductory meeting | | Sep | Bishop of Liverpool | Discuss Hillsborough papers | | Sep | BBC and BBC Trust | Introductory meeting | | Sep | Southbank Centre | Introductory meeting |
| Minister for Tourism and Heritage, John Penrose MP (to 5 September) | Date of Meeting | Name of Organisation | Purpose of Meeting | |---------------------------------------------------------------------|-----------------|----------------------|--------------------| | Jul | Sustainable Restaurant Association | Discuss Food is GREAT campaign |
(^2) Does not normally include meetings with Government bodies such as other Government Departments and Agencies, NDPB’s, Non-Ministerial Departments, Agencies, Government reviews and representatives of Parliament, devolved or foreign governments. | Date | Name of Organisation | Purpose of Meeting | |------|----------------------|--------------------| | Jul | Tourism Alliance AGM | Discuss tourism policy | | Jul | Oliver Peyton | Present honorary OBE | | Jul | Outdoor Industries Association | Discuss Britain on Foot campaign | | Jul | West End Company | Discuss visas | | Jul | World Capital of Culture, Lloyd Grossman | Discuss World Capital of Culture | | Aug | National Casino industry Forum (NCiF), London Clubs International | Discuss gambling policy | | Aug | British Horseracing Authority | Discuss the horseracing levy |
**Minister for Sport and the Olympics, Rt Hon Hugh Robertson MP**
| Date of Meeting | Name of Organisation | Purpose of Meeting | |-----------------|----------------------|--------------------| | Jul | Archery GB | Discuss future of archery in the UK | | Jul | British Paralympic Association | Discuss the Paralympics |
**Minister for Culture, Communications & Creative Industries, Ed Vaizey MP**
| Date of Meeting | Name of organisation | Purpose of meeting | |-----------------|----------------------|--------------------| | Jul | The Art Fund | Wedgwood Collection | | Jul | Publishers’ Association | Discuss e-book lending | | Jul | British Board of Film Classification | Discuss the issue of the rating of educational videos | | Jul | Ofcom, Telephone Preference Service, Information Commissioner’s Office | Roundtable discussion | | Jul | Society of Chief Librarians | Catch-up | | Jul | Ofcom | Catch-up | | Jul | Museum sector stakeholders | Discuss Wedgwood Collection | | Jul | Channel 5 | Discuss re-licensing | | Jul | Council for Industry and Higher Education, Digital TV Group | Discuss the current market of TV and internet TV | | Jul | Alcatel-Lucent (UK and Ireland) | Introductory meeting | | Jul | Shubbak Festival | General discussion | | Jul | ITV | Discuss re-licensing | | Jul | Working Title Films | Catch-up | | Jul | The Space | General discussion | | Jul | BT | Update on British Sign Languages trial | | Jul | Youth Music | Catch-up | | Jul | UK City of Culture | General discussion | | Jul | British Film Institute | Catch-up | | Jul | Roundtable of public sector funders of the creative industries | Regular roundtable discussion | | Jul | TalkTalk | Catch-up and demonstration of YouView offer | | Jul | Sarabande Foundation | Follow up meeting | | Month | Organization | Event Description | |-------|--------------|-------------------| | Jul | Golden Square UK Ltd | Discuss the proposed e-lending report | | Jul | Ofcom | Briefing on policy statement | | Jul | Vodafone | Attended PM meeting, General discussion | | Jul | Li Ka-Shing Foundation | Attended PM meeting, General discussion | | Sep | Vodafone, Telefonica, EE, Three | 4G Auction | | Sep | STV | Discuss re-licensing | | Sep | Sandford Lieberson | Present honorary CBE | | Sep | Musicians Union, Autograph Sound, Ranleagh International, British Entertainment Industry Radio Group | PMSE roundtable discussion | | Sep | Musical Festival Group | Live music and festivals | | Sep | MITCO/Phonepay Plus | Introductory meeting | | Sep | Roundtable of public sector funders of the creative industries | Regular roundtable discussion | | Sep | Public Catalogue Foundation | Introductory meeting | | Sep | UK Interactive Entertainment | Crowd funding | | Sep | Ofcom | Catch up | | Sep | British Film Commission | General discussion | | Sep | BT | General discussion | | Sep | Talk Talk | General discussion | | Sep | Derby Street Films | Introductory meeting | | Sep | BBC Trust | Introductory meeting with SoS | | Sep | Heritage Alliance | General discussion | | Sep | Waterloo 200 | General discussion | | Sep | BBC Worldwide | General discussion | | Sep | Nicholas Snowman | Introductory meeting | | Sep | Britdoc | Introductory meeting | | Sep | Everything Everywhere | General discussion |
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4c56fac0b10358081c3b8b93efce9aeb46769f53 | DCMS Ministerial hospitality, overseas travel and meetings with external organisations, newspapers and other media proprietors, editors and senior executives
1 October - 31 December 2012 DEPARTMENT FOR CULTURE, MEDIA AND SPORT
QUARTERLY INFORMATION
GIFTS GIVEN OVER £140
| Secretary of State, Rt Hon Maria Miller MP | Date gift given | To | Gift | Value | |-------------------------------------------|-----------------|----|------|-------| | | Nil | | | | | Minister for Sport and the Olympics, Rt Hon Hugh Robertson MP | Date gift given | To | Gift | Value | | | Nil | | | | | Minister for Culture, Communications & Creative Industries, Ed Vaizey MP | Date gift given | To | Gift | Value | | | Nil | | | |
GIFTS RECEIVED OVER £140
| Secretary of State, Rt Hon Maria Miller MP | Date received | From | Gift | Value | Outcome | |-------------------------------------------|---------------|------|------|-------|---------| | | Nil | | | | | | Minister for Sport & the Olympics, Hugh Robertson MP | Date received | From | Gift | Value | Outcome | | | Nil | | | | | | Minister for Culture, Communications & Creative Industries, Ed Vaizey MP | Date received | From | Gift | Value | Outcome | | | Nil | | | | |
## HOSPITALITY
| Date | Name of Organisation | Type of Hospitality Received | |--------|---------------------------------------|------------------------------------------------------------------| | 2 Oct | BPI | Tickets\* to BRIT Awards including dinner | | 7 Oct | Channel 4 | Dinner | | 8 Oct | Pinewood Studios | Dinner | | 9 Oct | Policy Exchange | Drinks reception | | 16 Oct | Attitude Awards | Ticket to award ceremony including dinner | | 18 Oct | BFI Film Festival | Tickets\* to film screening | | 23 Oct | Pinewood group | Premiere tickets\* to Skyfall | | 29 Oct | Pride of Britain 2012 | Ticket to awards ceremony including dinner | | 1 Nov | Arsenal Ladies Football Club | Ticket to match | | 7 Nov | UK Interactive Entertainment | Dinner | | 8 Nov | Sunday Times | Awards ceremony including drinks reception | | 5 Dec | Working Title Films | Premiere tickets\* to Les Miserables | | 6 Dec | Institute of Practitioners in Advertising | Lunch | | 18 Dec | BBC | Preview screening\* of Doctor Who Christmas special |
### Minister for Sport and the Olympics, Rt Hon Hugh Robertson MP
| Date | Name of Organisation | Type of Hospitality Received | |--------|---------------------------------------|------------------------------------------------------------------| | 9 Oct | Football Association | Lunch | | 23 Oct | Lord's Taverners | Lunch | | 25 Oct | London & Partners | Dinner | | 26 Oct | British Cycling | Dinner | | 30 Oct | Association of Leading Visitor Attractions | Lunch | | 30 Oct | Royal Yachting Association | Reception | | 20 Nov | Sports Coach UK | Dinner | | 27 Nov | Sports Lobby Group | Reception | | 30 Nov | British Olympic Association | BT British Olympic Ball\* |
1 Does not normally include attendance at functions hosted by HM Government; ‘diplomatic’ functions in the UK or abroad, hosted by overseas governments; minor refreshments at meetings, receptions, conferences, and seminars; and offers of hospitality which were declined. *indicates if accompanied by spouse/partner or other family member or friend. | Date | Name of Organisation | Type of Hospitality Received | |--------|---------------------------------------|-----------------------------------------------| | 1 Dec | Rugby Football Union | Ticket to England v New Zealand | | 1 Dec | GB Rowing | Dinner | | 4 Dec | BBC | Lunch | | 16 Dec | BBC | BBC Sports Personality of the Year tickets* | | 17 Dec | BBC | Lunch |
**Minister for Culture, Communications & Creative Industries, Ed Vaizey MP**
| Date | Name of Organisation | Type of Hospitality Received | |--------|---------------------------------------|-----------------------------------------------| | 25 Nov | Universal Music UK Ltd | Ticket to concert | | 1 Oct | Louis Vuitton | Lunch | | 15 Oct | Warner Brothers | Dinner | | 16 Oct | Man Booker Prize | Awards dinner | | 18 Oct | Arts Council England | Lunch | | 23 Oct | Sony Pictures | Premiere tickets\* to Skyfall | | 29 Oct | The Economist | Dinner | | 31 Oct | Universal Music | Lunch | | 8 Nov | Emma Bridgewater | Lunch | | 13 Nov | Historic Houses Association | Lunch | | 14 Nov | Sir Terry Farrell CBE | Lunch | | 15 Nov | The Independent | Lunch | | 20 Nov | Hammer House Films | Lunch | | 22 Nov | The Legacy List | Dinner | | 03 Dec | The 18th Century Cartoon Art Trust | Dinner | | 05 Dec | Working Title Pictures | Premiere ticket to Les Miserables | | 11 Dec | Queen’s Gallery | Ticket to exhibition | | 12 Dec | GQ Magazine | Christmas Lunch | | 12 Dec | BBC | Ticket to recording | | 18 Dec | Arts and Business | Reception |
## OVERSEAS TRAVEL
| Date(s) of trip | Destination | Purpose of trip | ‘No 32 (The Royal) Squadron’ or ‘other RAF’ or ‘Charter’ or ‘Eurostar’ | Number of officials accompanying Minister, where non-scheduled travel is used | Total cost including travel, and accommodation of Minister only | |----------------|-------------|----------------|---------------------------------------------------------------------|--------------------------------------------------------------------------------|---------------------------------------------------------------| | 8 Nov | Brussels | Meeting with Commissioner | | | £224 | | 7-8 Nov | Moscow, Russia | To discuss 2012 Olympics and 2014 Winter Olympics (Sochi) with athletes, businesses and sponsors. Also Bilateral meetings with the Russian Government. | | | £1,083 | | 20 Nov | Nyon, Switzerland | Lunch meeting with FA Chairman & UEFA President | | | £235 | | 21-24 Nov | Rio, Brazil | Official Govt Olympic handover, promote GREAT Campaign and champion UK private sector bids for 2016 | | | £3,879 | | 10-13 Dec | Doha, Qatar | Keynote speaker at Doha GOALS Forum | | | £4,853 | | Date | Location | Activity Description | Cost | |------------|-------------------|----------------------------------------------------------|-------| | 4-6 Nov | Baku, Azerbaijan | Attending Internet Governance Forum | £852 | | 17-19 Nov | Doha, Qatar | Launching the UK/Qatar Year of Culture | £2,452|
### MEETINGS WITH EXTERNAL ORGANISATIONS
**MEETINGS WITH NEWSPAPER AND OTHER MEDIA PROPRIETORS, EDITORS AND SENIOR EXECUTIVES**
| Secretary of State, Rt Hon Maria Miller MP | Purpose of Meeting | |-------------------------------------------|--------------------| | **Date of Meeting** | **Name of Organisation** | **Purpose of Meeting** | | Oct | Mobile Network Operators | Discuss launch of 4G services | | Oct | The Football Association | Introductory meeting | | Oct | BT | Introductory meeting | | Oct | Press Complaints Commission and Lord Black, Telegraph | Introductory meeting | | Oct | Virgin Media | Introductory meeting | | Oct | BBC Trust | Introductory meeting | | Oct | Talk Talk | Introductory meeting | | Oct | Policy Exchange | Introductory meeting | | Oct | WPP | To discuss London 2012 legacy | | Oct | GLA | To discuss the Olympic stadium | | Oct | ITV | Introductory meeting | | Oct | Hacked Off | Introductory meeting to discuss press regulation | | Oct | Herefordshire Council | To discuss broadband | | Oct | Chris Blackhurst, Independent | Introductory meeting | | Oct | James Harding, The Times | Introductory meeting | | Nov | Arqiva | Introductory meeting | | Nov | Lord Guy Black, Telegraph | Introductory meeting to discuss press regulation | | Nov | Alan Rusbridger, The Guardian | Introductory meeting to discuss press regulation | | Nov | Fujitsu | To discuss broadband | | Nov | Local Government Association | Introductory meeting | | Nov | Ofcom | General catch up | | Nov | Publishers Association | Introductory meeting | | Nov | Country, Land and Business Association | Introductory meeting | | Nov | Sarah Sands, Evening Standard | Introductory meeting to discuss the press regulation | | Nov | Richard Desmond, The Star/Express | Introductory meeting to discuss press regulation | | Nov | Lionel Barber, Financial Times | Introductory meeting to discuss |
______________________________________________________________________
2 Does not normally include meetings with Government bodies such as other Government Departments and Agencies, NDPB’s, Non-Ministerial Departments, Agencies, Government reviews and representatives of Parliament, devolved or foreign governments. | Date | Event | Participants | Purpose | |------|-------|--------------|---------| | Nov | Introductory meeting to discuss press regulation | Tony Gallagher, Telegraph | | | Nov | Introductory meeting to discuss press regulation | Paul Dacre, Daily Mail | | | Nov | Introductory meeting | Cultural Olympiad | | | Nov | Introductory meeting to discuss press regulation | Lord Hunt and Lord Black, Telegraph | | | Nov | Introductory meeting | Women’s Sport and Fitness Foundation | | | Nov | Introductory meeting | Conservative Home | | | Nov | To discuss press regulation | Hacked Off and victims of phone hacking | | | Nov | To discuss women’s sport | The Commission on the Future of Women’s Sport | | | Nov | To discuss Britain’s Personal Best | The Big Society | | | Nov | Introductory meeting to discuss press regulation | Lloyd Embley, The Mirror | | | Nov | Introductory meeting | Time Warner | | | Nov | Biannual meeting | GREAT Private Sector Council meeting with a number of private sector representatives | | | Nov | Introductory meeting | National Theatre | | | Nov | To discuss Leveson implementation | Hacked Off | | | Dec | Introductory meeting | The Tate | | | Dec | To discuss Leveson implementation | Paul Ashford, Express Lionel Barber, Financial Times Lord Black, Telegraph Chris Blackhurst, Independent Lloyd Embley, Trinity Mirror Tony Gallagher, Telegraph Geordie Greig, Mail on Sunday James Harding, Times Lord Hunt, PCC Ian McGregor, Sunday Telegraph John Micklethwait, Economist Dominic Mohan, Sun John Mullin, Independent on Sunday Fraser Nelson, Spectator Alan Rusbridger, Guardian Sarah Sands, Evening Standard Bob Satchwell, Society of | | Date | Name of Organisation | Purpose of Meeting | |------|----------------------|--------------------| | Dec | BT | To discuss broadband | | Dec | What Next? Cultural Leaders group | To discuss arts, culture and creative industries and the Autumn Statement | | Dec | National Union of Journalists Newspaper Society Press Association Professional Publishers Association Society of Editors | To discuss Leveson implementation | | Dec | Catholic Church | To discuss equal marriage | | Dec | Church of England | To discuss equal marriage | | Dec | Stonewall | To discuss equal marriage | | Dec | National Museum Directors’ Council | Introductory meeting | | Dec | Coalition for Marriage | To discuss equal marriage | | Dec | World War One Advisory Panel meeting | Inaugural meeting chaired by the Secretary of State | | Dec | Sony | To discuss developments at Sony | | Dec | Creative Industries Council | Introductory meeting | | Dec | Hacked Off | To discuss Leveson implementation | | Dec | Camelot | To discuss the Health Lottery | | Dec | Legacy 10 | Introductory meeting | | Dec | English National Opera | Introductory meeting | | Dec | Lord Hunt, Transition Body Lord Black, Press Standards Board of Finance David Newell, Newspaper Society Paul Vickers, Transition Body Implementation Group Peter Wright, Associated News John Witherow. Sunday Times Michael McManus, Transition Body | To discuss Leveson implementation |
**Minister for Sport and the Olympics, Rt Hon Hugh Robertson MP**
| Date of Meeting | Name of Organisation | Purpose of Meeting | |-----------------|----------------------|--------------------| | Oct | Football Association | To discuss report on discrimination | | Oct | British Olympic Association | Catch-up | | Oct | Performance Director’s Forum | Catch-up | | Oct | European Tour Operators | Introductory meeting | | Date of Meeting | Name of organisation | Purpose of meeting | |-----------------|----------------------|--------------------| | Oct | Ofcom | Regular catch-up | | Oct | BT | To discuss Rural Broadband | | Oct | Youth Music | Introductory meeting | | Oct | EE, Vodafone, O2, Three | To discuss 4G auction | | Oct | New London Architecture | To discuss architecture and the built environment | | Oct | Arts and Business | To discuss research on cultural audiences | | Oct | BT | Introductory meeting with Secretary of State | | Oct | UK Technology Strategy Board | To discuss Digital and Creative Funding | | Oct | Clarence House | General catch up | | Oct | Panlogic | To discuss National Funding Scheme | | Oct | BT | To discuss Rural Broadband | | Oct | FSI Law Consultants | To discuss Acceptance in Lieu | | Oct | Digital Region | To discuss Rural Broadband | | Oct | Birmingham Museums Trust | To discuss establishment of the Birmingham Museum Trust | | Oct | Society of Chief Librarians | General catch-up | | Oct | Sir Hayden Phillips | General catch up | | Oct | Creative England | General catch-up | | Month | Event | Details | |-------|-------|---------| | Oct | Decipher Media Consultants | Launch of the West London Media cluster | | Oct | Nautical Archaeology Society | To discuss HMS Victory | | Oct | BBC, Digital Radio UK, Age Concern, Ofcom, Bauer Radio, Global Radio, UTV, Arqiva, Intellect, Consumer Expert Group, Radio and Television Electrical Retailers Association | Regular roundtable discussion | | Oct | Advertising Association, Direct Marketing Association, Incorporated Society of British Advertisers, Barclays, ITV, Institute of Practitioners in Advertising, Aegon Direct Marketing, British Interactive Media Association, Internet Advertising Bureau, Newspaper Publishers Association, Materials Research Society, Google, Professional Publishers Association, Microsoft, Facebook, Mobile Marketing Association, WPP plc. | Roundtable discussion on Data Protection | | Oct | Suffolk Libraries Board | To discuss Suffolk Libraries service | | Oct | Martin Graham (individual) | To discuss the Arts and Music | | Oct | Clore Duffield Foundation, Darren Henley | To discuss awards programme for cultural organisation | | Oct | BT | To discuss Rural Broadband | | Oct | BT | To discuss Rural Broadband | | Oct | Technology Strategy Board, Arts Council England, UKTI, NESTA, Creative England, BFI, British Council, CC Skills, Creative Skillset, Tech City, Local Government Association | Regular roundtable discussion | | Oct | Phonepayplus, Ofcom | To discuss premium rate phone calls | | Nov | Intellect, Samsung Electronics, Imagination Technology | To discuss UK Technology | | Nov | Creative Industries Council | General catch-up | | Nov | BskyB | To discuss internet safety and parental controls | | Nov | BT | To discuss Rural Broadband | | Nov | BBC, Arqiva, Channel 4, ITV | To discuss future management of | | Date | Event | Details | |------|-------|---------| | Nov | BT | To discuss Rural Broadband | | Nov | BPI, BVA, Publishers Association, Premier League, Google, ABC Auditors, BskyB, TalkTalk, Facebook, IPO, IAB UK, BT, Virgin Media, Motion Picture Association | Regular roundtable on online copyright infringement | | Nov | Rocket Pictures | Introductory meeting | | Nov | UK Music, ROAR Group, Henley Business School, BPI, Sony Music Entertainment, EMI Music UK & Ireland, Absolute Radio, Warner Music UK | Working dinner to discuss the Music Industry | | Nov | BT, Lloyds Banking Group, Post Office, Barclays Bank | Roundtable discussion on video relay services (e-accessibility) | | Nov | Heritage of London Trust | To discuss Heritage policy | | Nov | National Churches Trust | To discuss Heritage policy | | Nov | Microsoft, BskyB, Neul | To discuss spectrum management | | Nov | Susannah Simons, BBC Project Executive | To discuss Youth Dance England | | Nov | Bob Satchwell, Society of Editors Robin Esser, Daily Mail Ian Murray, Southern Daily Echo Anthony Longden, former regional newspaper editor | To discuss press regulation | | Nov | BT | To discuss Rural Broadband | | Nov | The Art Fund, HLF, Stoke Council, V&A | To discuss the Wedgwood Collection | | Nov | First Story charity | Introductory meeting | | Nov | The Royal Society | To discuss international partnerships | | Nov | Motion Picture Association | General catch-up | | Nov | Heritage Alliance | To discuss Heritage issues | | Nov | The Mariinsky Theatre Trust | To discuss the Trust | | Nov | Media Standards Trust | To discuss press regulation | | Nov | Mary Rose Museum | Tour of Museum | | Nov | Continuum Attractions | Tour of Spinnaker Tower | | Nov | Periodical Publishers Association | To discuss press regulation | | Nov | Entertainment Retailers' Association, HMV, Tesco | To discuss high-street retail | | Nov | Qatar Foundation, BBC | To discuss partnerships | | Dec | Arts sector representatives; | To discuss cultural education | | Date | Organisation | Event | Details | |------|--------------|-------|---------| | Dec | Greater London Authority | (SoS for Education present) | Discuss Rural Broadband | | Dec | BT | Introductory meeting | | | Dec | Tech City Investment Organisation | | To discuss Leveson implementation | | Dec | Paul Ashford, Express Lionel Barber, Financial Times Lord Black, Telegraph Chris Blackhurst, Independent Lloyd Embley, Trinity Mirror Tony Gallagher, Telegraph Geordie Greig, Mail on Sunday James Harding, Times Lord Hunt, PCC Ian McGregor, Sunday Telegraph John Micklethwait, Economist Dominic Mohan, Sun John Mullin, Independent on Sunday Fraser Nelson, Spectator Alan Rusbridger, Guardian Sarah Sands, Evening Standard Bob Satchwell, Society of Editors John Witherow, Sunday Times Peter Wright, Daily Mail | | | | Dec | BT | Introductory meeting with the Secretary of State | | | Dec | What Next? Cultural Leaders group | | To discuss arts, culture and creative industries and the Autumn Statement | | Dec | BPI, BVA, Publishers Association, Premier League, Google, ABC Auditors, BskyB, TalkTalk, Facebook, IPO, IAB UK, BT, Virgin Media, Motion Picture Association | | Regular roundtable on online copyright infringement | | Dec | British Fashion Council, Skillset | | To discuss fashion manufacturing | | Dec | The Reading Agency | | General catch-up | | Dec | Open Rights Group, Which?, Consumer Focus, Big Brother Watch | | Roundtable discussion on consumer and open rights | | Dec | Premier League | | To discuss IP | | Dec | Creative Industries Council | | General catch-up | | Dec | BT | | To discuss Rural Broadband | | Dec | Motion Picture Association | To discuss US copyright protection policy | |-----|---------------------------|------------------------------------------| | Dec | “What’s Next?” Cultural Leaders group | To discuss arts policy | | Dec | Local Government Association | General catch-up | | Dec | Google, Science Museum, TeleCity | Tour of Google Web Labs |
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e02c4e57ae9bf79e77500ce3a32ddc8066c58b1d | 1. Purpose
1.1 To report the outcome of the consultation process on the 2018/19 General Fund Revenue and Capital Budget and the Government Funding Settlement for 2018/19.
1.2 To agree Cabinet’s proposals for recommendation to Council on 26 February 2018 for the 2018/19 General Fund budgets and Council Tax level and the indicative levels for 2019/20 to 2022/23.
1.3 To outline the General Fund Capital Programme and Funding proposals for 2018/19 and future years.
2. Recommendations
2.1 That the feedback from consultation with the public, organisations and the Overview and Scrutiny and Audit Committees be considered and welcomed (detailed at Appendices 9, 10 and 11). 2.2 That the changes to the proposed budget (detailed at paragraph 3.2.14), in light of technical adjustments and the Local Government Funding Settlement, be agreed.
2.3 That a General Fund Revenue Budget for 2018/19 of £27.360m (excluding parishes) be recommended to Council for its own purposes (detailed in paragraph 3.2.13 and Appendices 1 and 2).
2.4 That the Council be recommended to increase the Council Tax for its own purposes, i.e. excluding County, Police and Parish Precepts, by £6.37 (2.99%) per year per band D property for 2018/19.
2.5 That the Cabinet recommend to Council that they approve the General Fund Capital Programme and proposed financing for 2018/19, including the inclusion of schemes in the Development Pool, as set out in Appendix 4.
2.6 That Council be recommended to confirm a minimum level of General Fund reserves of £5.5m for 2018/19, having regard to the outcome of the financial risk assessment, and also note the position on earmarked reserves (Appendix 7).
2.7 That authority be delegated to the Chief Finance Officer in consultation with the Cabinet Member for Finance, and where appropriate the relevant Director and Cabinet Member to:
- Transfer monies to/from earmarked reserves should that become necessary during the financial year.
- Update prudential indicators in both the Prudential Indicators Report and Treasury Strategy Report to Council, for any budget changes that impact on these.
2.8 That the draft Fees and Charges set out in Appendix 8 be approved, including immediate implementation where appropriate.
2.9 That Cabinet recommend to Council that they approve the Treasury Management Strategy for 2018/19 at Appendix 5 of this report: incorporating:
(i) The Capital Financing and Borrowing Strategy for 2018/19 including:
- The Council’s policy on the making of Minimum Revenue Provision (MRP) for the repayment of debt, as required by the Local Authorities (Capital Finance & Accounting) (England) (Amendment) Regulations 2008.
- The Affordable Borrowing Limit for 2018/19 as required by the Local Government Act 2003.
(ii) The Investment Strategy for 2018/19 as required by the CLG revised Guidance on Local Government Investments issued in 2010.
2.10 That authority be delegated to the Council’s Chief Finance Officer, in liaison with the Cabinet member for Finance, to make any temporary changes needed to the Council’s borrowing and investment strategy to enable the authority to meet its obligations.
2.11 That authority be delegated to the Chief Finance Officer to make any technical changes necessary to the papers for the Council meeting of 26th February 2018, including changes to the Finance Settlement and change relating to Parish Precepts and Council Tax levels associated with those changes.
3. Issues and Choices
3.1 Report Background
3.1.1 The Council is required to set a balanced budget and it’s Council Tax for 2018/19 in February 2018. The proposals in this report have been developed by officers in consultation with Cabinet members and Corporate Management Board.
3.1.2 Cabinet agreed a draft budget in December and the proposals within this have been subject to a period of public consultation and reviewed by both Audit Committee and Overview and Scrutiny Panel. The outcomes of these consultations are set out in Appendices 9, 10 and 11.
3.1.3 The Cabinet report in December set out the national and local economic context and background to the sources of funding that underpin the budget and medium term plan.
3.2 Issues
Local Government Finance Settlement
3.2.1 The draft settlement was published on 19th December 2017 and the final settlement was issued on 7th February 2018. There were no significant changes from the draft settlement. The table below shows the figures and how they compare to those included in the draft budget for 2018/19.
| | Draft Budget – Dec 2017 £k | Final Settlement – Feb 2018 £k | Change £k | |----------------------|-----------------------------|-------------------------------|-----------| | Revenue Support Grant | 886 | 886 | - | | Business Rates Baseline | 7,826 | 7,826 | - | | New Homes Bonus | 3,311 | 3,082 | (219) | | **Total** | **12,023** | **11,794** | **(219)** | 3.2.2 The methodology for calculating central government funding includes an assumption that Council Tax is increased up to the referendum limit of 2.99% in 2018/19. The budget proposals therefore include a proposed increase in the Band D Council Tax of just under 2.99% from April 2018 and £5 per year from 2019/20 onwards.
3.2.3 New Homes Bonus for 2018/19 is lower than forecast in the draft budget due to lower than expected property growth being reflected in the allocation. This is in part due to delays in the valuation office allocating new properties to bands. This will be corrected in future years as and when this unrecognised growth feeds into the taxbase growth figures.
Medium Term Financial Plan and Efficiency Savings
3.2.4 The Medium Term Financial Plan provides a forecast of the Council’s expenditure and income over the next five years. The forecasts, detailed in Appendix 1, include efficiency and other savings as well as growth requirements.
3.2.5 Cabinet has listened to public feedback in relation to the existing Environmental Services contract and is proposing to invest and prioritise resources to make sure that our town is clean. The new Environmental Services contract, to commence in June 2018, will see a significant improvement in quality standards for street cleaning, grounds maintenance and the collection of refuse and recycling. The quality standards and service specification for the new contract have been informed by the consultation undertaken in 2017. These improvements come at a cost, with a significant increase in budget required. The final budget allows for the increased net cost of Environmental Services and related activities of around £3.2m per annum, plus an additional one-off cost of £2m in 2018/19 for contract mobilisations and to rectify current problems.
3.2.6 In order to mitigate the increased costs of Environmental Services, the Council proposes to purchase the vehicles and other equipment required for delivery of these services, and lease these to the successful contractor. This approach was approved by Cabinet in January, and utilises the lower borrowing costs available to the Council. The cost of repaying this borrowing will be met from an earmarked reserve set aside for the purpose, although the Council may utilise capital receipts for this purpose if they become available in the future. This capital funding by the Council, and utilisation of an earmarked reserve, reduces the net cost of the new contract by an estimated £1.2m per annum.
3.2.7 Other budgetary growth requirements are set out in Appendix 2 and include provision for an enhanced client function to monitor the new contract and funding to extend opening hours at Abington Park museum. Most significantly, funding of £150k is earmarked to fund a reduction in working hours from 40 to 37 per week. This is a reversal of the increase implemented a few years ago, which has had an adverse impact on staff morale and on recruitment and retention, in part leading to the need to cover more vacancies with interim staff.
3.2.8 The MTFP has forecast significant increases in the cost of Environmental Services for several years, and this has meant that compensating savings and efficiencies have been delivered through the workstreams of the Efficiency Plan. Efficiency savings of around £3.5m have been delivered over the last 4 years, and further efficiencies of over £800k are built into the base budgets for 2018/19. Examples include reducing paper usage through the implementation of a digital strategy and investment in technology, and maximising income generated from the Council’s property assets.
3.2.9 Further efficiencies, budget savings and income increases totalling £1.82m are set out in Appendix 2. These include significant savings in management and staffing costs through a process of redesigning the organisational structure to ensure that it meets the needs of the Borough and provides value for money. Additional income of over £1.3m will be generated, most notably through the introduction of a charge of £2 for all-day parking on Saturdays in the Council’s multi-storey car parks and Sundays in all car parks. Visitors to the town will benefit from improved town centre cleanliness delivered through the new Environmental Services contract.
3.2.10 By focussing on these areas of savings, the Council will protect services to the most vulnerable residents of the Borough, both those provided directly and those provided through partner organisations. Core grants to the voluntary sector have been protected.
3.2.11 Implementation of the proposed savings listed in Appendix 2 will enable the Council to set a balanced budget for 2018/19 and 2019/20.
3.2.12 The MTFP shows a forecast further savings requirement of £1m to £1.5m each year from 2020/21 onwards. The exact figure is subject to any changes to government funding and other forecast changes to budgets. These further savings can be achieved through the strands set out in the approved Efficiency and Medium Term Financial Strategy, i.e.
- Growth – realising the benefits of growth through the generation of additional business rate income, Council Tax and New Homes Bonus.
- Partnerships – working with other local authorities, private sector and community partners to deliver high quality and cost effective front-line and support services.
- Use of IT/Digital channels – to reduce transaction costs and increase staff productivity through the use of technology.
- Maximise income generation – ensure that income is maximised by setting charges at an appropriate level, as well as increasing demand through effective marketing.
- Review service and staffing structures – to ensure that these are fit for purpose and are appropriate to the Council’s changing needs and priorities.
- Investment/commercial opportunities – realising opportunities to undertake appropriate investments that will generate a commercial return.
- Realise opportunities from new Environmental Services contract – the new contract will provide significantly improved quality and provide opportunities to reduce the costs involved in rectifying shortfalls in current service provision. General Fund Revenue Budget 2018/19
3.2.13 The proposed net budget for 2018/19 is shown in Appendix 1 and summarised in the table below. A balanced budget has been achieved through the Council’s prudent financial management and continued commitment to delivering efficiency savings.
| Description | 2018/19 £000s | |------------------------------|---------------| | Service Base Budget | 27,475 | | Proposed Growth | 4,250 | | Proposed Savings | (1,822) | | Corporate Budgets | 67 | | Contribution from Reserves | (1,480) | | **Net Budget** | **28,490** | | Revenue Support Grant | (886) | | Business Rates | (8,346)\* | | New Homes Bonus | (3,082) | | Council Tax | (15,793) | | Collection Fund Surplus | (383) | | **Total Funding** | **(28,490)** | | **Savings to be identified** | **0** |
\*includes baseline shown at para 3.2.1 plus growth of £520k
As part of setting its General Fund Revenue Budget the Council has undertaken a rigorous review of its Service Base Budget. This process has identified £0.8m of efficiency savings and realistic income targets which are included as part of the Service Base Budget.
3.2.14 Further work has been undertaken since December to refine the budget. This includes the impact of the Local Government Finance Settlement and technical adjustments to the continuation budget and corporate budgets. The changes are summarised in the table below: Summary of Changes since Cabinet December 2017
| Budget 2018/19 (£) | |---------------------| | Environmental Services – net impact | 90,000 | | Increased Savings Forecasts | (260,000) | | Technical Changes to Corporate Budgets | (50) | | Contribution to/(from) Earmarked Reserves | 74,595 | | **Total Changes to Net Budget** | **95,455** |
Changes to Funding
| Budget 2018/19 (£) | |---------------------| | New Homes Bonus – lower allocation | 219,471 | | Collection Fund Surplus | (32,400) | | Council Tax – additional increase | (91,618) | | **Total Changes to Funding** | **95,455** |
Council Tax
3.2.15 As part of the Local Government Finance Settlement, the Secretary of State has set a referendum trigger for 2018/19 of 3% increase in the Band D Council Tax, which will apply for all lower-tier (district and borough) councils.
3.2.16 The Borough Council’s draft budget for 2018/19 proposed an increase in Council Tax of £5 per Band D property, this having been the referendum limit in 2017/18. With the lower than expected level of funding from New Homes Bonus, and with inflation running at 3%, the final proposed increase has been set at 2.99% in order to maximise the total funding available to support the delivery of essential services. This will be an increase of £6.37 per year, or 12p per week, for an average Band D property.
3.2.17 The Band D Council Tax (excluding parishes) for the last 5 years is shown in the table below:
| | 2014/15 £ | 2015/16 £ | 2016/17 £ | 2017/18 £ | 2018/19 £ | |------------------|-----------|-----------|-----------|-----------|-----------| | Northampton Borough Council | 207.91 | 207.91 | 207.91 | 212.91 | 219.28 | | Northamptonshire County Council | 1,048.57 | 1,069.02 | 1,111.25 | 1,166.59 | TBC | | Northamptonshire Police & Crime Commissioner | 197.04 | 200.96 | 204.96 | 209.04 | TBC | | **Total** | **1,453.52** | **1,477.89** | **1,524.12** | **1,588.54** | TBC | Special Expenses
3.2.18 The Council charges special expenses to its residents as part of its Council Tax charge. Special expenses relate to expenditure deemed solely to apply to a part of the Borough where precepting authorities in other parts of the Borough have chosen to precept and supply the same service separately. These are known as concurrent services.
3.2.19 Northampton Borough Council charges special expenses for the maintenance of its smaller parks and open spaces as this service is also carried out by Parish Councils in some areas. Because these smaller parks and opens spaces are not evenly distributed across the borough, the special expense charge (unlike the main council tax element) differs across the parishes of the Borough.
3.2.20 The basic mechanism is to deduct the relevant expenditure from the total Council Tax applying to the total tax base, and then re-apply that expenditure over the parishes affected. This means that residents in different parts of the Borough will pay different amounts according to the distribution of parks and open spaces across the Borough.
3.2.21 As a general rule, special expenses seek to reflect the cost of the services that relate to specific areas.
3.2.22 See Appendix 6 for further details and explanation.
Capital Strategy
3.2.23 The draft Capital Strategy is attached as Appendix 3. It has been updated to take account of the proposed changes to CIPFA’s Prudential Code and in the context of the approved Efficiency and Medium Term Financial Strategy. The proposed changes to the Prudential Code include a requirement for the CFO to report explicitly on the deliverability, affordability and risks associated with the Capital Strategy.
3.2.24 The aim of the Capital Strategy is to provide a clear framework for capital funding and expenditure decisions in the context of the Council’s vision, values, objectives and priorities, financial resources and spending plans. The Council’s capital strategy is to deliver a capital programme that:
- Contributes to the Corporate Plan, and the Council’s vision, values, strategic objectives and priorities
- Is closely aligned with the Council’s Asset Management Plan
- Supports service-specific and other NBC plans and strategies
- Is affordable, financially prudent and sustainable, and contributes to achieving value for money
3.2.25 The strategy also details the governance arrangements that have been put in place to ensure that capital expenditure is closely monitored and controlled.
General Fund Capital Programme 2018/19 to 2022/23 3.2.26 The proposed General Fund Capital Programme and Funding for the next 5 years is detailed in Appendix 4 and summarised in the table below. The proposed programme has been reviewed, challenged and prioritised by the Capital Programme Board. Years 2 to 5 of the programme are indicative only at this stage.
3.2.27 The total value of the proposed programme for 2018/19 is £24.648m. This total includes £21.751m of New Proposals and/or schemes within the Development Pool. These are schemes for which either costs need to be firmed up and/or confirmation of external funding is required. These schemes will be moved from the Development Pool into the approved programme during the year as and when these details are approved by the Capital Programme Board in line with the enhanced governance processes implemented during 2017/18.
3.2.28 Apart from some reprofiling of expenditure in light of the latest forecasts for 2017/18, the changes to the programme since the draft budget report in December 2017 are as follows:
- Leisure Centre Improvement Programme – the latest discussions with the Leisure Trust suggest that funding will be sought from a third party and they will take responsibility for delivering the programme. This item has therefore been removed from the Council’s capital programme.
- Environmental Services Vehicles and Westbridge Depot improvements – this figure has been updated to reflect the cost estimates provided by the successful bidder.
- Fernie Fields – The sum of up to £180,000 is included in the proposed programme as a contribution towards improved stadium facilities.
3.2.29 The proposed capital programme can be contained within existing resources over the 5 year planning period. However, subject to the profile of capital receipts, some short term borrowing may be required. The proposed funding includes that in relation to Development Pool schemes.
3.2.30 Further significant schemes supporting the achievement of the Efficiency Plan may be brought into the capital programme over the next 12 months, supported by robust capital appraisals and business cases.
### Description
| Description | 2018/19 £000s | |------------------------------------|---------------| | Disabled Facilities Grants | 1,475 | | IT Improvements | 175 | | Block Programmes | 1,427 | | Development Pool | 8,098 | | New Proposals | 13,653 | | **Total GF Capital Programme** | **24,828** |
### Funding Source:
- **Borrowing (incl. self-funded)**: 16,206
- **Growing Places Fund/ Local Infrastructure Fund**: 400
- **Capital Receipts**: 5,541
- **Grants & Developer Contributions**: 2,681
**Total Funding**: 24,828
### Earmarked Reserves and General Fund Balances
3.2.31 Earmarked Reserves are held to mitigate against specific risks and future spending pressures. They are reviewed on an ongoing basis, but specifically as part of the budget process and again at the closure of accounts. Contributions to and from reserves will be adjusted for future years as the forecasts of government funding are updated.
3.2.32 General Fund Reserves as at 1st April 2017 stood at a total of £28.5m. A breakdown is shown in the table below.
| Purpose | Balance 1st April 2017 | |------------------------------------------------------------------------|------------------------| | Service Specific Earmarked Reserves | £2.7m | | Corporate Earmarked Reserves | £17.1m | | Technical Reserves | £3.2m | | Minimum Level of General Reserves | £5.5m | | **Total General Fund Reserves** | **£28.5m** | 3.2.33 The unallocated balance as at 31st March 2018 on the Delivering the Efficiency Plan/MTFP Cashflow/Strategic Investment Reserves is forecast to be over £15m. It is proposed as part of the strategy to balance the MTFP that £10m of this is set aside to fund the annual cost of Environmental Services vehicle provision over the next 10 years. The remaining balances of £3m for Delivering the Efficiency Plan and £2m for MTFP Cashflow are sufficient to cover future needs and known/anticipated risks. The forecast balances on earmarked reserves are set out in Appendix 7.
3.2.34 As part of the budget process the Council determines a prudent minimum level of General Fund balances to hold against general risks. This minimum level is designed to cope with unpredictable circumstances, which cannot be addressed by management or policy action within the year. It is informed by a risk assessment, which currently suggests that £5.5m would be a prudent level of general reserves. This is in line with the actual level of general reserves held as at March 2017.
Robustness of Estimates and Adequacy of Reserves
3.2.35 The Local Government Act 2003 places a duty on the Chief Finance Officer to comment on ‘the robustness of the estimates’ included in the budget and the adequacy of the reserves for which the budget provides. This is subject to a separate report to this Cabinet meeting.
Fees and Charges
3.2.36 The draft schedule of Fees and Charges for 2018/19 is attached at Appendix 8. The Cabinet is recommended to agree the fees and charges that have been reflected in the budgeted income figures. These figures have been reviewed through the Medium Term Planning process and updated where feasible.
Treasury Management Strategy
3.2.37 The Treasury Management Strategy 2018/19 at Appendix 5 sets out the Council’s policy for its debt and investment portfolios over the next financial year. It is reviewed annually and reported to Cabinet and Council as part of the budget setting process. The purpose of the strategy is to establish the framework for the effective and efficient management of the Council’s treasury management activity, including the Council’s investment portfolio, within legislative, regulatory, and best practice regimes, and balancing risk against reward in the best interests of stewardship of the public purse. The resources required to deliver the Council’s Treasury Management Strategy and policies over the next five years are incorporated into the Council’s HRA and General Fund revenue budgets.
3.2.38 The Treasury Management Strategy incorporates:
- The Council’s capital financing and borrowing strategy for the coming year
- The Council’s policy on the making of Minimum Revenue Provision (MRP) for the repayment of debt, as required by the Local Authorities (Capital Finance & Accounting) (Amendments) (England) Regulations 2008. • The Affordable Borrowing Limit as required by the Local Government Act 2003. • The Annual Investment Strategy for the coming year as required by the CLG revised Guidance on Local Government Investments issued in 2010.
3.2.39 The Treasury Management Strategy also includes the Council’s policy on borrowing in advance of need and its counterparty creditworthiness policies.
Next Steps
3.2.40 The Council meeting on 26th February will consider the recommendations of this Cabinet in relation to the expenditure and tax proposals that relate to the Council’s own spending.
3.2.41 In addition to the Council’s own Council Tax, there are separate Council Taxes for the county, police, and the parishes. Not all of these precepting bodies have set their Council Taxes at the date of the Cabinet report being written, with the result that these will be reported to the Cabinet if known by that date and at Council on 26 February 2018 in any event.
3.3 Choices (Options)
3.3.1 It is recommended that Cabinet make the recommendations to Council as detailed in section 2 of this report, taking into account the items detailed for noting.
3.3.2 The Cabinet may choose to make amendments to the proposed budgets or to the proposed council tax increase and adjust the budget proposals accordingly, in consultation with the Chief Executive and the Chief Finance Officer. It would then recommend the amended budget and council tax (if applicable) to Council.
4. Implications (including financial implications)
4.1 Policy
4.1.1 The revenue and capital budgets are set in support of the Council’s priorities and within the context of the Efficiency and Medium Term Financial Strategy and Capital Strategy.
4.2 Resources and Risk
4.2.1 The resource implications are detailed throughout the report and appendices.
4.2.2 The robustness of the estimates and adequacy of the Council’s reserves are subject to a separate report.
4.2.3 A report on risks and the 2018/19 budget was also considered by the Audit Committee at its meeting on 15th January 2018.
4.3 Legal 4.3.1 The Council must set a balanced budget for the next financial year by midnight on 11 March 2018 (Local Government Finance Act 1992 section 32 (10). Failure to do this would leave the Council potentially vulnerable to court action by way of judicial review. Delay in sending out Council Tax demands would result in losses being incurred by the Council.
4.3.2 The authority has specific legal duties in relation to equalities and financial decision making – see 4.4 below.
4.4 Equality and Health
4.4.1 The Public Sector Equality Duty (PSED) requires the Council to have due regard to the need to eliminate discrimination, advance equality of opportunity and foster good relations between different people when carrying out its activities. Failure to comply with this duty would be challengeable in the courts.
4.4.2 Equality and diversity were considered as part of each of the medium term planning options submitted. Equality impact assessments are 'living' documents and will be updated to take into account relevant feedback from the consultation process. Where these documents identify mitigating action, this will be undertaken in implementing the relevant option should it be taken forward and approved in February 2018.
4.5 Consultation
4.5.1 Public consultation commenced with residents, businesses and interested stakeholders from the 21 December 2017 and ended 11 February 2018. The consultation period will formally close on the date the budget is approved in February 2018.
4.5.2 People were asked if they agreed with a small increase in council tax. Views were also sought in relation to the budget options proposed and respondents were also invited to suggest any other ideas that would achieve savings or generate income.
4.5.3 37 people completed online questionnaires. More than 54% of respondents agreed that the proposed Council Tax increase is about right, albeit at draft budget this was 2.34%. The proposal now is to increase up to the referendum limit of 2.99% and ii is worth noting that another 19% of respondents believed the 2.34% increase was not high enough. There were a range of suggestions as to where the Council could spend more to improve services, most notably in relation to improvement cleanliness in the town centre. Full details, including comments on proposals and alternative suggestions are available in Appendix 9.
4.5.4 Overview and Scrutiny Committee reviewed the budget proposals at its meeting on 29 January 2018. The views of the Overview and Scrutiny Committees are reported in Appendix 10.
4.5.5 Audit Committee reviewed the budget proposals from a risk perspective on 16 January 2018. The key risks identified are reported at Appendix 11. 4.6 How the Proposals deliver Priority Outcomes
4.6.1 All of the discretionary investment proposals in the proposed budget reflect and/or are aligned to the corporate priorities as set out in the Corporate Plan.
4.7 Other Implications
4.7.1 None not already covered above.
5. Background Papers
5.1 None
5.2 Appendices
01. Proposed General Fund Revenue Summary 2018/19 to 2022/23
02. General Fund MTP Savings & Growth Options
03. Capital Strategy 2018/19
04. Proposed General Fund Capital Programme and Financing 2018/19 to 2022/23
05. Treasury Management Strategy 2018/19
06. Special Expenses
07. Schedule of Earmarked Reserves
08. Draft Fees and Charges 2018/19
09. Consultation Responses – Public Consultation
10. Consultation Responses – Overview and Scrutiny Committee
11. Consultation Responses – Audit Committee
Simon Bovey, Interim Chief Executive Stuart McGregor, Interim Chief Finance Officer
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b29b2ac048e07d38513556a8a9d75f63e876e0e6 | Localism 2016-21 A plan for public services in Wales
November 2015 Welsh Local Government Association
The WLGA’s primary purposes are to promote a better local government, its reputation and to support authorities in the development of policies and priorities which will improve public service and democracy.
It represents the 22 local authorities in Wales with the 3 fire and rescue authorities and 3 national park authorities as associate members.
www.wlga.gov.uk | 029 2046 8600
1. The most important Welsh election since devolution
1.1 The National Assembly for Wales elections in May 2016 come at a crucial juncture for public services across Wales. The election of a Conservative Government at Westminster in May 2015 sees a renewed focus on deficit reduction and a plan to take the nation’s finances into surplus by 2020. The Chancellor of the Exchequer Rt. Hon George Osborne MP has asked that government departments model further cuts on a range between 25% and 40% for the forthcoming November 2015 Spending Review. The consequence of this is further austerity and deep reductions to balance the public finances, with local government services at the forefront of these changes.
1.2 As a consequence, Welsh Government finances have effectively flat-lined over the last 5 years which has resulted in real terms cuts to its budget. The Institute for Fiscal Studies (IFS) estimates that the total block grant allocated by the UK Government to Wales in 2015–16 is set to be 12.2% lower in real terms than that in 2010–11 (after adjusting for the transfer of funding for council tax benefit to the Welsh Government).
1.3 Following a short period of relative protection for local government in Wales, the past two years have seen ‘English style cuts’. The WLGA estimates that £720m has been cut from local services since 2010. The Welsh Government’s decision to protect NHS funding in 2013 and the on-going protection of schools by 1% above the Welsh Block since 2010 sees the majority of unprotected preventative services in councils locked into a process of serious decline. Core funding for non-schools will have fallen by a quarter in real terms by the end of 2015-16. With further huge cuts to follow the future of these services is in question. Some could fail and some could disappear altogether.
1.4 This will mean that the five-year term of the next Welsh Government could see the most profound changes to our councils. The sustainability of key services is at stake.
2. “The first cut is the deepest?” - continuing austerity
2.1 Demand management is increasingly replacing the traditional operating model of providing “blanket” services to our communities. There is a greater variety of service providers and alternative delivery models including the emergence of community trusts, local authority trading companies and mutuals. There is greater innovation and wider use of digital technology together with new approaches involving our employees in flexible working, hot-desking and divesting underused assets. Councils are delivering services at the regional level, setting up new merged services, sharing posts and jointly procuring services.
2.2 For public services, such a focus requires new ways of doing business. In addition to alternative and community delivery models, there is a need to share both inputs and outcomes with partners like Health, “blue light” services and the third sector. Delivery would involve a re-imagining of Local Service Boards to purposeful Public Service Boards, with partners agreeing outcomes, pooling resources, sharing systems, data, evidence and needs assessments and jointly commissioning services, and a shift to preventative services characterised by a focus on outcomes not delivery mechanisms.
2.3 In particular, we should be clear that if we are to reform public services and grow our economy in the face of cuts, we need to develop responses which are sensitive to the complexities of place. The reality is that this simply isn’t possible at an all-Wales level. Caerphilly, Cardiff, Carmarthenshire, Ceredigion and Conwy are very different places and need the freedom to develop different responses within an overarching outcomes and funding framework set by the Welsh Government. This is what the WLGA sees as the core principle of localism.
2.4 This will only go part of the way to meet the challenges ahead. The uncomfortable reality is that services are being cut and many jobs are being lost. Unprotected non-statutory local services are struggling and authorities are being forced to close libraries, day centres, leisure centres and other facilities. At the same time, charges are increasing across a range of services from social care to environmental services. There are unavoidable financial pressures building up in the wage bill, national insurance and the growing costs of redundancies.
2.5 In 2012 the Institute for Fiscal Studies (IFS) report on local government expenditure in Wales showed that, until 2009-10, spend had been increasing in real terms by around 5% each year. This kept pace with inflation and service pressures. From 2009-10, spend has been reducing in real terms; had expenditure kept pace with general inflation it would now be over £7bn. The resulting gap of £720m represents a conservative estimate of the cuts and efficiency savings achieved so far.
2.6 Services vital to economic growth and the general well-being of communities, such as transport, housing, libraries, cultural services, planning and regulatory services have already faced budget reductions of between 20% and 50%. Some authorities are now looking for further reductions of between 40% and 50% in these areas of spend. It is anticipated that there will be a cumulative budget shortfall of £941m by 2019-20. In this context it is vital that the increasingly outdated finance formula which underpins funding distribution is reformed to properly reflect deprivation and sparsity and the challenges of the future. Equally, more planning certainty would be provided to local councils by the reintroduction of multiyear finance settlements.
3. Prevention is better than cure
3.1 In Wales, significant progress has been made through partnership working in terms of enacting the Social Services and Wellbeing Act 2014, and in the introduction of factors such as an intermediate care fund (ICF). This progress has been significant. However, the policy developments and investments that have taken place in England point to an ambitious agenda. For example, Greater Manchester’s proposals for a combined health and social care budget will see a £6bn pooled budget between the NHS and local government. As the Kings Fund have stated, “the Greater Manchester proposals offer one route for strategic joint commissioning across a number of local systems, with the single commissioner role taking place at local authority/CCG [Clinical Commissioning Group] level.”
3.2 In a wider context, the UK Government announced the ‘Better Care Fund’ (BCF) in the June 2013 spending round (now totalling £5.3bn), to ensure a transformation in integrated health and social care. The BCF is a single pooled budget to support health and social care services to work more closely together in local areas. The original intention was for the fund to support adult social care services that have health benefits, helping people to remain healthy and independent within the community. In summer 2014, the emphasis changed to reducing emergency hospital admissions and achieving financial savings, with a proportion of the fund now linked directly to performance against these goals.
3.3 Despite significant structural reform in recent years, coupled with record investment, the NHS appears unable to meet existing and predicted demands. The recent problems of the Betsi Cadwaladr Local Health Board, the largest public sector organization in Wales, clearly demonstrate that economies of scale do not always provide the answer. The key issue for the new Welsh Government will be to shift the priorities from hospitals to prevention and public health. It has been the WLGA’s consistent policy that the latter function should be located in local government as is the case in England.
3.4 Wales needs to rapidly accelerate and embrace a new and radical approach to health and social care integration with local government at the heart of this. In the recent period, the Welsh Government has increased investment in the Welsh NHS by more than £400m. This means the total budget for Health and Social Services in Wales in 2015-16 will be £6.7bn, a record high. This includes a recent £70m consequential in addition to the extra £295m being invested by the Welsh Government in health and social care in 2015-16. This means the budget for Health and Social Services in Wales in 2015-16 will account for just under 50% of the total Welsh Government budget. In addition, the UK Government has pledged to protect the NHS with a guaranteed £8bn increase in spending per year above inflation by 2020. If this works on a basis of a Barnett Consequential this would see additional monies come into Wales over the next 4 years. If meaningful integration across health and social care is to occur, it needs a step change and these resources could be the driver of this.
3.5 Now is the time to invest new monies in local government preventative services. In Children’s Services, we know that investment in early years and safeguarding helps ensure that children are afforded equal opportunity to reach their full potential. Local government has a key role to play in promoting physical activity and offering community support. This approach would fully chime with the principles of the Wellbeing of Future Generations Act in Wales.
3.6 This is not just a view from within local government, it is shared by the Chief Executive of NHS England Simon Stevens who, in the seminal report, “Five Year Forward View” published in October 2014, argued “we need to get serious about prevention.” As he stated, “the future health of millions of children, the sustainability of the NHS, and the economic prosperity of Britain all now depend on a radical upgrade in prevention and public health. Twelve years ago, Derek Wanless’ health review warned that unless the country took prevention seriously we would be faced with a sharply rising burden of avoidable illness. That warning has not been heeded - and the NHS is on the hook for the consequences.”
4. Welfare, skills and employment
4.1 Local government continues to have a crucial role in welfare reform. It will retain housing benefit working age claimants until the transfer of housing benefit to Universal Credit is completed in 2018. It appears that pension age housing benefit will remain with councils for the foreseeable future. It is important that the housing benefit administration subsidy continues, to ensure councils are properly resourced until the transfer is completed. Local government needs assurance from the Welsh Government that it will fulfil its promise to review the funding of the Council Tax Reduction Scheme (CTRS).
4.2 The UK’s £13bn employment and skills budget is spent through 28 national funds and is supplemented by the Welsh Government’s own programmes. This cannot be efficient, and outcomes vary considerably. Local areas need powers, funding and responsibilities to plan employment and skills investment in their local area. In return, councils can reduce long-term unemployment and better serve local employers’ current and future skills demands.
4.3 The UK Government can achieve this through the introduction of more localist solutions to labour market problems. Across the UK, the Government should devolve or co-commission almost £3bn in employment and skills funding, including the Flexible Support Fund and the Work Programme. It is the view of the WLGA and LGA that Jobcentre Plus and the maze of national reengagement schemes should be scrapped - to be replaced with a locally-led Youth Transitions Service giving every 14 to 24-year-old the advice, experience and support to participate in education, training or work.
4.4 Many of the recurrent themes within this Manifesto document also apply to the issues affecting the local government workforce and the management of the workforce in these extremely challenging times. Themes such as honesty, transparency and respect are paramount. These principles should govern all workforce issues from an internal perspective, and will also ensure value for money for the tax payer from the pay bill.
4.5 We accept that there have been a very few high profile occasions across the UK where it has appeared that these principles may not have been fully implemented. However, these cases are far from the norm, and clearly sufficient checks and balances already exist to ensure they were identified and dealt with. No doubt, there were lessons learned. However, we do not believe that there should be further regulation based more on media attention than real evidence of systematic problems of mismanagement of workforce issues within local government.
4.6 Other themes go straight to the heart of the democratic principle and the need for councils to be able to exercise autonomy and control over the workforce in their own locality, as individual sovereign employers should be entitled and expected to do. Democratically elected councillors are best placed to determine how to shape the workforce to deliver services most cost-effectively in the face of unprecedented cuts. Different councils face different challenges and have varied starting points and goals. One size does not fit all and councils need the flexibility to make and implement decisions on recruiting and restructuring (including decisions relating to pay) that are designed locally to best meet the needs of the communities they serve. Working closely with Trade Unions in this setting is paramount.
4.7 Sustainability for the future is a key principle which must underpin the work of councils in Wales. The degree of sustainability of the workforce will, to a large degree, determine the success or failure of councils in weathering the current and coming storms. Nowhere is this more important than at senior levels where Welsh councils must attract, recruit and retain high quality leaders from as wide a spectrum as possible. The responsibilities of senior posts in local government are considerable and the rewards often far less than in other sectors, particularly the private sector. It is essential that we seek to make a senior career in local government in Wales an attractive opportunity. This will not be achieved by removing employment safeguards or depressing rewards under the guise of ‘value for money’.
5. Localism and local government reorganisation
5.1 The WLGA is fully committed to radical public services reform and fully accepts the need for change.
5.2 As we approach the Assembly elections however, the position on local government reorganisation in Wales remains uncertain. There is no consensus on the way forward across, and often within, the Assembly’s political parties. The process is equally contested in local government. The impact of this ongoing uncertainty on the morale of the people who work in local government cannot be overstated.
5.3 In June 2015, the Welsh Government added to the four options already set out in the Williams report by producing two further maps of 8 or 9 councils in Wales. It stated that any future reorganisation would be based on further consultation and a manifesto commitment aimed at achieving a renewed mandate following the 2016 elections. Nonetheless, the reality is that reorganisation will not happen until 2020 at the earliest. There is no clarity over costs, or how it would be funded.
5.4 While Welsh Government has outlined timescales and a range of options, the detail and fully costed financial case have yet to be worked up. The outcome of the Assembly elections inevitably creates further uncertainty for the process of reorganisation. Given the collective challenges faced, it is critical that the new Welsh Government and local government commence an urgent and constructive debate on the future of local government post May 2016.
5.5 Fundamentally, local government is the key partner for the Welsh Government in delivering its broad social and economic outcomes. This is recognised fully in the Wellbeing and Future Generations Act 2015. Local services provide the bedrock of safer, more cohesive and fairer communities. In this setting, councils are the key democratic bodies charged with the role of governing their locality and representing it. To do that they must have autonomy, financial security and control of their own localities. This is the essence of localism.
5.6 In supporting the concept of a Constitutional Convention across the UK, the UK Forum (the four local government associations including the WLGA, LGA (England), COSLA (Scotland) and NILGA (Northern Ireland) and, in turn, the WLGA Council, has endorsed the following core principles which should underpin devolution and localism:
- **We must establish a principle of subsidiarity; the presumption that power is transferred to the level of government closest to the people.** We recognise that there is a case for some powers to rest nationally. However, this should only happen when there is an explicit demonstration that the activity being delivered nationally will result in better outcomes. We want to see real momentum behind the devolution of powers beyond Westminster, Holyrood, Cardiff Bay and Stormont to local government and to local communities.
- **We want the legal position of local government to be secured and enhanced.** At the moment, local government is entirely a creature of devolved authority from “higher” bodies. Our communities want to be able to make local decisions for themselves. We need to consider a defined set of powers and responsibilities which sets out what local government can support at the local level so that we can design public services which are most appropriate to local need.
- **We want greater fiscal autonomy for local government.** Our centralised system of public finance is inefficient and stymies economic growth. We are ready for greater responsibility for funding at a local level to improve public services and ensure that local residents and business see how their money is used.
- **We want the full adoption of the principles set out in the European Charter of Local Self Government.** This document was signed up to by the UK Government in 1996 who agreed to apply all of the Charter’s provisions for England, Wales and Scotland. The Charter sets out core principles on the role and purpose of local government and embodies a range of fundamental baselines. It is the view of the UK Forum that the European Charter of Local Self Government should form part of the new constitutional settlement for the UK voluntarily signed up to by Westminster and the devolved administrations.
5.7 The WLGA Manifesto seeks to enshrine this ethos and urges all political parties in Wales to embrace a localist approach, to invest in local preventative services, to support Welsh communities in a bi-lingual nation, and in doing so revitalise local democracy and help create “the Wales We Want”.
6 ‘It’s good to talk’ - a new understanding between elected government in Wales
6.1 The WLGA has established an Independent Commission on Local Government Finance chaired by Professor Tony Travers of the London School of Economics to consider future perspectives on funding and examine new ways of funding local councils. The Commission will be taking evidence across government and we look forward to the publication of its findings in due course.
6.2 Underpinning our decision to establish the Travers Commission was the view from elected members that the seriousness of the current economic situation needs a new understanding between Welsh Government and local government. We need shared appreciation of the impact of austerity, and joint ownership of solutions that will sustain services. WLGA members contend that these solutions should focus on significantly increasing flexibility, managing risk differently, and ensuring that Welsh Ministers have accurate, impartial and transparent information regarding the likely consequences of cutting local government funding arising from policy choices. The recent announcement of the localisation of business rates in England show that other areas of the UK are seriously addressing the issue of the balance of funding between central and local government.
6.3 We also now need a Welsh equivalent to the Office of Budget Responsibility to provide a rolling, independent and authoritative analysis of Wales’s public finances. Such a body would sit outside of Welsh Government to assess the long-term sustainability of public finances and subject spending measures to detailed scrutiny and challenge.
6.4 The WLGA believes that there should be more equal treatment across services. Schools have been protected for over 5 years since 2010 at 1% over the ‘Welsh Block’. Now is the time to remove this national target and let councils and schools set budgets locally in the context of seeking cashable efficiencies. Taking forward public services reform needs more open and honest dialogue between the Welsh Government and local government.
6.5 There is ample evidence in key services to demonstrate that when the Welsh Government and local government work together closely remarkable results follow. Take for example the excellent performance of Welsh councils in waste management. Wales’ councils have the highest average recycling rate in the UK, according to the latest figures; recycling 56% of household waste in 2014/15, with seven councils hitting the 58% target a year early.
6.6 Improving recycling rates will become more challenging in the future, thus it is vital to build a consensual way forward. This includes the need for increased efforts to reduce wasteful packaging. It will also require a review of the 70% statutory recycling targets to identify what needs to happen to move from the current year’s 58% target to 70% by 2024/25, including a cost-benefit analysis of the steps required. Increased recycling includes food waste treatment, which helps to reduce biodegradable materials being sent to landfill. This also impacts on emissions of greenhouse gases and represents an important part of local authorities’ contribution to tackling climate change. WLGA welcomes the Welsh Government’s Green Growth Wales initiative that embraces all forms of resource efficiency including the encouragement of renewable energy generation.
6.7 Positive central-local relations produce improvement and results. The development of the National Model for Regional Working, the school improvement consortia and the national categorisation model are all examples of a joined-up approach between local and central government. This partnership has resulted in increased levels of funding delegated to schools and a process of rationalisation of education grants.
6.8 These developments are not ends in themselves but part of a collaborative approach aimed at raising standards, improving outcomes and breaking the link between poverty and attainment. There is significant evidence that this strategy is having an impact. Performance at GCSE and A level are at a record high. Other indicators such as attendance figures and secondary school absences all confirm that improvement is starting to gain momentum.
6.9 Local authority performance indicators have broadly improved year on year during the past Assembly term and, despite some significant challenges in some service areas, the WLGA expects that by 2016, none of Wales’ local authorities will be in special measures for education services.
6.10 This partnership approach to services extends beyond education to meet the needs of the wider economy and society as a whole. A good education enables individuals to fulfil their potential but also contributes to the wider benefit of communities. Education must be part of an integrated approach to skills, employment and growing the economy. This can translate into better childcare provision for parents and a more integrated approach to capital investment in school buildings so that communities’ needs for libraries, leisure centres and arts facilities are considered when planning and building new schools. 6.11 The 21st Century Schools programme is an excellent example of an initiative developed jointly by central and local government but together we must ensure that the initial vision of community-focused schools becomes a reality that benefits the people and communities of Wales.
6.12 The same principles would apply for the growth-agenda, though in this case the spatial scale is necessarily different. In local government we are developing responses at the sub-national level which reflect economic geographies, not a one-size-fits all approach for Wales. In South East Wales and the Swansea Bay area this means a city-region approach. The Cardiff City Deal has been driven by local government and is backed by the 10 authorities. It has the potential to provide a direct investment of up to £1bn over the next 10 to 15 years - and of course its multiplier effect would have a much bigger impact. Leaders in the Cardiff Capital Region are taking this agenda forward, by committing to regionalise economic development and business support functions, and consolidating currently fragmented regional resources as part of a City Deal proposal.
6.13 In North Wales the Economic Ambition Board has worked with Welsh Government and been at the heart of developing the new prison in Wrexham and lobbying for new infrastructure, particularly in terms of road, rail and digital. The board sees the six councils enhancing collaborative working by Local Authorities to embrace economic growth and to work with higher and further education to generate a regional skills plan and web portal.
6.14 The ‘Growing Mid Wales’ initiative brings together the councils of Ceredigion and Powys. The private sector is represented on the partnership through the Mid Wales Economic Forum, the Local Growth Zones (LGZ) and representatives from higher and further education, tourism and other business sectors. The themes identified by ‘Growing Mid Wales’ as being of importance to the local economy include regeneration, housing, town centre vibrancy and viability, skills and workforce training, and the heritage and culture of rural Wales.
6.15 Swansea Bay City region encompasses the four local authority areas of Neath Port Talbot, Swansea, Carmarthenshire and Pembrokeshire. An Economic Regeneration Strategy has been developed and a City Region Board has been established to oversee development in the region. The strategy is designed to accelerate the region’s economic growth so that the gap with the performance of the rest of the UK in terms of wealth creation can be reduced. A plan of action has been agreed as part of an ambitious economic growth plan for the region. Members of the Board have also held early stage discussions over the possibility of seeking a city deal for the area to boost the economy, with a particular focus on renewable energy, building on the development of the tidal lagoon in Swansea.
6.16 As the examples above demonstrate, a partnership approach across the range of service delivery has been vigorously pursued. This takes place within an overarching framework of central-local relations. Ultimately, this is the key factor that sets the tone for the interface across the tiers of elected government in Wales. It also provides the necessary checks and balances characteristic of every successful modern political system. The arrangements that govern and manage this relationship must therefore be robust, must stand the test of time and must be above the ebb and flow of day-to-day politics. We need to review and refresh the frameworks of central-local relations with an aim to codify the relationship and ensure that devolved and local government work together even more effectively post May 2016. 7. Conclusion
7.1 The issues highlighted in this paper consider a number of the challenges that will face the Welsh Government and councils over the next Assembly term. The period 2016 to 2020 will essentially define the shape and role of local government into the future. Weathering the storm of cuts and austerity is the political imperative of all councils in this period.
7.2 Whatever happens in the 2016 National Assembly elections, local government reorganisation is at least 4 years away and any subsequent efficiency savings that may accrue are unlikely to be achieved for a further 3 years at the earliest estimates.
7.3 The new Welsh Government must urgently prioritise what it can do now to secure and sustain services and most importantly support the communities who rely upon them. The following priorities, based on the above principles of localism, will help local authorities respond to local challenges and needs and contribute to the delivery of national ambitions and outcomes.
Local Government Top Priorities:
What can the Welsh Government do to help councils deliver on national outcomes and prioritise the services that matter most to communities in Wales?
FINANCE
1. Commit to fully cost and fund any new Welsh Government initiatives or legislation.
2. Properly commit to multiyear financial settlements so councils can plan more effectively and support the Welsh Government’s longer-term ‘Future Generations’ ambitions.
3. Establish an independent Welsh based “Office of Budget Responsibility” model to provide a rolling independent and authoritative analysis of Wales’s public finances.
4. Give local authorities the necessary freedom to make spending and cost recovery choices locally. One measure to achieve this is to dramatically reduce the number of specific grants and transferring the £916m attached to them into the RSG; this has happened in Scotland and to a large extent in England, it is vital it occurs in Wales.
5. Urgently reform the increasingly outdated finance formula which underpins funding to properly reflect deprivation and sparsity and the challenges of the future.
6. Create a new £20m capacity fund for local government to merge services and to digitalise delivery where applicable and explore alternative delivery models such as mutuals, cooperatives and social enterprises.
7. Change Big Lottery Fund criteria to allow grant funding to support council-run community services, particularly those most at threat such as libraries and leisure centres.
8. Explore new income sources, such as a localised Tourist Tax on foreign visitors.
9. Invest monies raised from the plastic bags levy in local authority front line services. This would see an additional £17m to £22m invested in vital front-line services.
LOCAL FREEDOM AND FLEXIBILITY
10. The new Welsh Government to work closely with the WLGA and hold an urgent summit of the 22 council leaders and senior ministers, to discuss the future of local government in Wales and fully embrace localism.
11. The new Welsh Government to provide immediate clarity on the future shape and costs of structural change to Welsh local government.
12. Recommit to a partnership approach to governance and central-local relations aimed at creating a stronger “Team Wales” approach.
13. Free up local government from central bureaucracy releasing further efficiency savings in central administration costs and encourage in turn the development of place-based, integrated public services.
14. Reduce the burden of audit and inspection. This has occurred already in England and Scotland.
15. Support an approach to locally directed self-improvement and peer review.
SCHOOLS
16. Keep pre-16 education within local government and continue to fund schools through the Revenue Support Grant. Retain the current statutory position and ensure that schools function within a framework of local democratic control.
17. Reject the introduction of academies and free schools in Wales.
18. Continue the national focus on raising standards, improving outcomes for learners and breaking the link between poverty and attainment.
19. Provide full flexibility for councils and schools to set their budgets locally within the context of cashable savings, removing the national budget protection of schools, allowing councils to set budgets according to local circumstances.
20. Continue investment in 21st Century Schools and greater integration with other capital investment programmes.
21. Review the current system of school governance with the aim of actively promoting and increasing the number of school federations, and change current regulations to allow federations to pool school budgets. This would replace the current number of governing bodies, improve the quality of school leadership, drive up standards and improve learner outcomes.
22. Introduce school exclusion zones for mobile hot food vans and enforce operating restrictions on all new vendors of food within 400m of schools as part of the on-going drive to promote healthy lifestyle choices for children and young people.
HEALTH AND SOCIAL CARE
23. Keep social care within local government as set out in the Social Services and Well-being (Wales) Act 2014.
24. Establish a new Preventative Integrated Care Fund for Wales funded through the potential Barnett consequential from the £8bn annual health investment in England.
25. Lift the £60 charging cap that limits the amount councils can charge for all non-residential social services. Link it more clearly to ability to pay.
26. Transfer Public Health Wales function and its funding into local government.
27. Ensure greater democratic oversight of the NHS through locating the powers of Community Health Councils (CHCs) within local government.
28. Switch investment into preventative services such as social care, economic development, transport, housing, libraries, leisure and environmental health. These services increase people’s wellbeing and reduce demand for expensive care in hospitals.
HOUSING AND THE ENVIRONMENT
29. Remove the Treasury-imposed cap on housing borrowing allowing Welsh councils to borrow more for house building since the public sector clearly gains a bankable asset and there is no need for this to appear on the books as public borrowing.
30. Undertake an urgent review of the 70% statutory recycling targets to identify what needs to happen to move from the current year’s 58% target to 70% by 2024/25, including a cost-benefit analysis of the steps required.
31. Lobby the UK Government to seek stronger enforcement powers for councils to tackle excess packaging in supermarkets and the retail sector.
JOBS AND REGENERATION
32. Allow councils to reinvest in local economies through the retention of 100% business rates growth.
33. Scrap Jobcentre Plus and the maze of national reengagement schemes - replacing it with a locally-led Youth Transitions Service giving every 14 to 24-year-old the advice, experience and support to participate in education, training or work.
34. Empower local authorities with a statutory economic development duty. This duty must be properly resourced and capable of being exercised at a regional level in an integrated and strategic way alongside transport and land use planning, supporting the regional development work of city region boards and other regional partnerships.
35. Support the work of the two city regions in South East and South West Wales, the North Wales Economic Ambition Board and the Growing Mid Wales partnership covering the rural communities of Powys and Ceredigion - a separate WLGA Rural Manifesto will expand on this.
36. Support the Cardiff City Deal concept across South East Wales and development of the Metro.
37. Maintain the Bus Services Support Grant at its current level to protect services, especially for rural areas where the bus service provides a local lifeline for some communities.
38. Support the local government workforce, and in turn local economies, by fully funding councils to introduce the Living Wage and cover other workforce pressures as the Welsh Government has done in the NHS.
39. Reject the Trade Union Bill, which will set back the social partnership approach in Wales and impact on industrial relations within local government.
40. Fully campaign to support the UK’s membership of the EU during the referendum process especially in terms of Wales benefiting through economic wellbeing, investment and cultural links.
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819efd4b398105384f664db8b63ffcf07631df2d | Carr Junior School City of York Council Internal Audit Report 2015/16
Business Unit: Primary Schools: Head Teacher: Mrs C Ryder Date Issued: 6th May 2016 Status: Final Reference: 15606/003
| Actions | P1 | P2 | P3 | |---------|----|----|----| | Overall Audit Opinion | High Assurance | Introduction The audit was carried out on Wednesday 10th and Thursday 11th February 2016 as part of the Internal Audit plan for Children's Services, Education and Skills for 2015/16. Schools are audited in accordance with a detailed risk assessment.
Objectives and Scope of the Audit The purpose of this audit was to provide advice to the Governors, Head Teacher and the Authority's Section 151 Officer about the financial management procedures and assurance that internal controls of the school are operating effectively to manage key risks, both financial and otherwise.
The audit covered the following areas in accordance with the specification issued on 11th January 2016:
- Governance and Financial Management
- System Reconciliation
- Banking Arrangements
- Contracts, Purchasing and Authorisation
- Income
- Capital and Property
- Extended Schools Provision
- Human Resources
- Payroll and Staff Costs
- School Meals
- Pupil Numbers
- School Fund
- Data Protection and Information technology
- Insurance and Risk Management
- Inventories
- Safeguarding Key Findings Systems within the school are operating well. The school has faced challenges this year with the implementation of the new CYC finance system and significant effort has been put into working around these to ensure that the finances are well managed even when it was not possible to undertake all the standard financial procedures.
The finding in the report relates to the timing of requesting sickness information in the school's referencing procedures. Advice received from the VAT section of the council was also provided to the school in relation to one of their lettings.
Overall Conclusions It was found that the arrangements for managing risk were very good. An effective control environment appears to be in operation. Our overall opinion of the controls within the system at the time of the audit was that they provided High Assurance.
## 1 Human Resources
| Issue/Control Weakness | Risk | |---------------------------------------------------------------------------------------|----------------------------------------------------------------------| | Sickness information is requested before a conditional offer of employment | The school is in breach of the Equalities Act 2010 and may be open to challenge |
### Findings
The school ask for references for job applicants prior to a conditional offer of employment being made, and these reference requests include a request for sickness information.
### Recommendation
The school should only request sickness information after a conditional offer of employment is made. The reference request forms to be used to obtain references for candidates if these are been requested prior to an offer being made are available on the HR section of the schools workforce portal.
### Agreed Action 1.1
| Priority | Responsible Officer | Timescale | |----------|---------------------|-----------| | 3 | Head Teacher | Immediate | Audit Opinions and Priorities for Actions
Audit Opinions
Audit work is based on sampling transactions to test the operation of systems. It cannot guarantee the elimination of fraud or error. Our opinion is based on the risks we identify at the time of the audit.
Our overall audit opinion is based on 5 grades of opinion, as set out below.
| Opinion | Assessment of internal control | |--------------------|------------------------------------------------------------------------------------------------| | High Assurance | Overall, very good management of risk. An effective control environment appears to be in operation. | | Substantial Assurance | Overall, good management of risk with few weaknesses identified. An effective control environment is in operation but there is scope for further improvement in the areas identified. | | Reasonable Assurance | Overall, satisfactory management of risk with a number of weaknesses identified. An acceptable control environment is in operation but there are a number of improvements that could be made. | | Limited Assurance | Overall, poor management of risk with significant control weaknesses in key areas and major improvements required before an effective control environment will be in operation. | | No Assurance | Overall, there is a fundamental failure in control and risks are not being effectively managed. A number of key areas require substantial improvement to protect the system from error and abuse. |
Priorities for Actions
| Priority | Description | |----------|-----------------------------------------------------------------------------| | Priority 1 | A fundamental system weakness, which presents unacceptable risk to the system objectives and requires urgent attention by management. | | Priority 2 | A significant system weakness, whose impact or frequency presents risks to the system objectives, which needs to be addressed by management. | | Priority 3 | The system objectives are not exposed to significant risk, but the issue merits attention by management. | Where information resulting from audit work is made public or is provided to a third party by the client or by Veritau then this must be done on the understanding that any third party will rely on the information at its own risk. Veritau will not owe a duty of care or assume any responsibility towards anyone other than the client in relation to the information supplied. Equally, no third party may assert any rights or bring any claims against Veritau in connection with the information. Where information is provided to a named third party, the third party will keep the information confidential.
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ee9c261aeaaa25d3949888732fa9dc406abd5848 | Data Quality City of York Council Internal Audit Report 2015/16
Business Unit: Customer & Business Support Services Responsible Officer: Assistant Director – Customers and Employees Service Manager: Group Manager – Shared Intelligence Bureau Date Issued: 20 June 2016 Status: Final Reference: 11040/007
| Actions | P1 | P2 | P3 | |---------|----|----|----| | Overall Audit Opinion | Substantial Assurance | Summary and Overall Conclusions
Introduction
Public services require information that is accurate, reliable, complete, relevant and timely in order to effectively manage service delivery, to make decisions and to account for performance.
Users of performance information must be able to place reliance on the data supplied but a balance must also be achieved between the need for information and the cost of collecting the supporting data with the necessary accuracy, detail and timeliness.
The council’s performance indicators are reported on an application called the KPI Machine which acts as a central repository enabling management to access this information at any time. The KPI Machine is also used to update Members on performance. Council data (as well as that of other organisations) is made available to the public through the York Open Data Platform – a separate web-based system. Corporate arrangements for data management have been centralised with the establishment of the Strategic Business Intelligence Hub which is responsible for the collation, processing, integrity checking and reporting of data held by the council.
A total of 10 council indicators were selected for detailed review. Five of these were statutory indicators chosen from the council’s BI schema, with the remaining five being selected from the KPI machine.
Objectives and Scope of the Audit
The purpose of this audit was to provide assurance to management that procedures and controls within the system ensure that:
- Datasets provided are complete, accurate and relevant for the calculation of the indicator
- Data is correctly processed in order to calculate the indicator
- The data gathering process for each indicator is understood and reviews are undertaken of the final output figures to confirm their accuracy
This audit included a review of arrangements to ensure data quality to the extent possible within the control framework of the Business Intelligence Hub (BIH) and did not include an in-depth review of the quality of data and collection methods at source. Key Findings
Overall, a sound control environment was found to be in place within the Business Intelligence Hub (BIH) to ensure correct processing of data and calculation of final indicator figures. However, for all indicators tested, reliance is placed on the accuracy and completeness of pre-existing system reports and these reports are not regularly reviewed to ensure they are set up correctly and continue to work as intended.
Audit testing performed on the indicators reviewed did not uncover any issues with processing that directly affected the accuracy of reported performance. Review of final indicator figures is, however, limited to basic reasonableness checks. Controls such as re-performance, reconciliation and second officer review which would directly verify the accuracy of the figure are not in place. It is recognised that these controls are resource intensive and the absence of error in reported performance suggests that the risks do not justify such resource intensive controls. That said, it would not be unreasonable for the BIH to periodically spot-check back to source data and confirm the accuracy and completeness of the source system to ensure that the data is correct on reaching the Hub.
There are no set rules for direction of travel and this was found to be a subjective judgement made by the Business Intelligence Officers responsible for each indicator. While knowledge of the service areas was generally found to be very good, interpretation of performance may differ from that of the services.
Substantial improvement was found to have been made in the standard of procedure notes and these are now available for the majority of indicators, although inclusion of a formal definition of the indicator within these documents would represent a further improvement.
Overall Conclusions
It was found that the arrangements for managing risk were good with few weaknesses identified. An effective control environment is in operation, but there is scope for further improvement in the areas identified. Our overall opinion of the controls within the system at the time of the audit was that they provided Substantial Assurance. 1 Reliance on system reports
| Issue/Control Weakness | Risk | |--------------------------------------------------------------------------------------|----------------------------------------------------------------------| | For a high proportion of indicators reliance is placed on the completeness, accuracy and relevance of a system report. | Incorrect performance is calculated and, as a result, decisions are made on the basis of erroneous information. |
Findings
Audit testing found that a high proportion of indicators are reliant on the completeness, accuracy and relevance of pre-existing system reports for the calculation of the indicator.
While Business Intelligence Officers were able to demonstrate good understanding of data collection at source, it is important for the Business Intelligence Hub to have assurance that these reports remain appropriate for the calculation of the indicator to ensure their continued accuracy.
For the indicators tested, there had not been any review of the reports themselves to check that they are set up with the correct parameters and are extracting complete, accurate and reliable data from the source systems.
Agreed Action 1.1
An internal reporting information architecture working group will be established within the Business Intelligence Hub in order to provide a meeting structure to co-ordinate standards on report development and sign off and to approve any changed or new reports.
The Business Intelligence Hub will also look to establish, alongside IT and business areas, governance boards when there are newly implemented major case management systems. These boards will include reporting as an agenda item which will provide a mechanism for maintaining assurance that all reports remain appropriate.
The Business Intelligence Hub is centralising all reporting through the KPI machine. A piece of work to capture metadata on when reports were last run, tested and viewed by the relevant business area and by a member of the management team will be undertaken. It is the intention to put this architecture in place for 80% of reports that the Hub is responsible for by the end of 2016/17.
| Priority | Responsible Officer | Timescale | |----------|---------------------|-----------| | 2 | Group Manager – Shared Intelligence Bureau | 31 March 2017 | 2 Reasonableness checks
| Issue/Control Weakness | Risk | |---------------------------------------------------------------------------------------|----------------------------------------------------------------------| | Checks of the accuracy of the final indicator figure are predominantly limited to | Erroneous final indicator figures are not identified, incorrect | | reasonableness checks rather than direct verification of accuracy. | performance is reported and decisions are made on the basis of | | | inaccurate information. |
Findings
For the indicators tested, review of the final output figure was found to be limited to basic reasonableness checking against previous months’ figures, with no direct verification of accuracy being undertaken. Accordingly, identification of processing errors relies on the reported figure being significantly different to expected performance. Although bi-weekly background validation routines are also run on the indicators uploaded onto the KPI machine, these are limited in the same way as reasonableness checking in that only unexpected variances are detected.
Whilst it would be too resource intensive to check indicator figures back to source data each time they are produced, there would be value in doing periodic spot-checks to source data in order to gain assurance that the indicator is being correctly calculated and reported. This would compliment the reviewing of the reports themselves (as noted in finding 1) and together would provide more assurance for the BIH that performance is being accurately reported.
Agreed Action 2.1
The Business Intelligence Hub is currently testing its ability to have systematic and programmatic solution towards flagging-up all data abnormalities (i.e. an automated Quality Assurance process that is designed to bring to attention any potentially erroneous values) which would help pinpoint and target any issues.
The Business Intelligence Hub will also introduce a ‘date of review’ field in the KPI database and programme the Machine to randomly select KPIs for source data review every six months.
| Priority | Responsible Officer | Timescale | |----------|---------------------|-----------------| | 2 | Group Manager – | 31 March 2017 | | | Shared Intelligence Bureau | | 3 Direction of travel
| Issue/Control Weakness | Risk | |---------------------------------------------------------------------------------------|----------------------------------------------------------------------| | Subjectivity in the determination of 'good', 'bad' or 'neutral' performance when | Level of reported performance differs from that of service | | reporting on direction of travel. | interpretation of performance. | | | Good and poor direction of travel scorecards reported to the | | | Council Management Team are not a true reflection of | | | performance as per service interpretations. |
Findings
Determining the direction of travel is a manual process that requires an assessment of the change in the indicator figure in relation to performance tolerances and sensitivity of the indicator to change.
This assessment is undertaken on the basis of Business Intelligence Officer knowledge and judgement. There are no set rules for determining what degree of change in performance represents good or bad direction of travel. Whilst it is appreciated that it is difficult to have set rules, judgements on direction of travel have not been determined in consultation with the services.
Agreed Action 3.1
The Business Intelligence Hub intends to develop and implement KPI Machine v2 throughout 2016/17. This version will include an automated Direction of Travel. The Hub has already built the functionality within a development environment and it is currently undergoing testing.
Once a new indicator is registered within the database, a value for 'Up is good' true/false will assigned together with the '% degree of change for neutral score'. This will then provide a basis for a report to be written that will compare the latest data with previous data-points and then check this against the direction of travel.
| Priority | 3 | |----------|---| | Responsible Officer | Group Manager – Shared Intelligence Bureau | | Timescale | 31 March 2017 | 4 Indicator definitions
| Issue/Control Weakness | Risk | |------------------------|------| | There is no formal definition for indicators. | In the event that key members of staff leave the council, important finer details in the production of the indicator are lost and incorrect performance is reported. |
Findings
Although procedure notes were found to be in place for almost all indicators and generally provided a sufficient level of detail to enable performance of the processing task, none of these documents included a formal definition of the indicator.
Inclusion of a formally accepted definition is fundamental in determining exactly what is and what is not included in the calculation of the indicator and, therefore, for the accuracy of the final output. Furthermore, a definition would allow the BIH and services to be assured that they are working with the same definition, minimising the chances of confusion, misunderstanding or misinterpretation of what the indicator shows.
Agreed Action 4.1
A KPI Dictionary will be developed. However, at present there are over 12,000 items of management information. This will require a prioritised approached starting with those KPIs that are published on the York Open Data Platform.
| Priority | Responsible Officer | Timescale | |----------|---------------------|-----------| | 3 | Group Manager – Shared Intelligence Bureau | 31 March 2017 | Audit Opinions and Priorities for Actions
Audit Opinions
Audit work is based on sampling transactions to test the operation of systems. It cannot guarantee the elimination of fraud or error. Our opinion is based on the risks we identify at the time of the audit.
Our overall audit opinion is based on 5 grades of opinion, as set out below.
| Opinion | Assessment of internal control | |--------------------|------------------------------------------------------------------------------------------------| | High Assurance | Overall, very good management of risk. An effective control environment appears to be in operation. | | Substantial Assurance | Overall, good management of risk with few weaknesses identified. An effective control environment is in operation but there is scope for further improvement in the areas identified. | | Reasonable Assurance | Overall, satisfactory management of risk with a number of weaknesses identified. An acceptable control environment is in operation but there are a number of improvements that could be made. | | Limited Assurance | Overall, poor management of risk with significant control weaknesses in key areas and major improvements required before an effective control environment will be in operation. | | No Assurance | Overall, there is a fundamental failure in control and risks are not being effectively managed. A number of key areas require substantial improvement to protect the system from error and abuse. |
Priorities for Actions
| Priority | Description | |----------|-----------------------------------------------------------------------------| | Priority 1 | A fundamental system weakness, which presents unacceptable risk to the system objectives and requires urgent attention by management. | | Priority 2 | A significant system weakness, whose impact or frequency presents risks to the system objectives, which needs to be addressed by management. | | Priority 3 | The system objectives are not exposed to significant risk, but the issue merits attention by management. | Where information resulting from audit work is made public or is provided to a third party by the client or by Veritau then this must be done on the understanding that any third party will rely on the information at its own risk. Veritau will not owe a duty of care or assume any responsibility towards anyone other than the client in relation to the information supplied. Equally, no third party may assert any rights or bring any claims against Veritau in connection with the information. Where information is provided to a named third party, the third party will keep the information confidential.
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fa781f8fc8b60d8964bc711f80f92ff6d73c1234 | | No. | Name | Date of Birth | Previous Service in Reserve | Board of Trade Certificate | Acting or Retired Rank Granted | Acting or Retired Bank Grouped | Date Granted | Date of Seniority | Date of Promotion | |-----|---------------|---------------|-----------------------------|----------------------------|-------------------------------|-------------------------------|--------------|------------------|------------------| | 105 G. | Hossack RD. | 26/4/1871 | Liverpool | 09/89 | 26/1/06 | 25/1/06 | 25/1/12 | 20/9/12 | 26/9/12 |
**Probationary Rank**
| Date of Appointment | Date of Commission (if any) | |---------------------|-----------------------------| | 19 | 19 |
**Training (Obligatory)**
| H.M.A. | From | To | No. of Days | Drill | Whether passed | Qualification | Comfort, Manner, and Bearing | If acquainted with any Foreign Language | Railway Warrant | Remarks | |--------|------|----|-------------|-------|----------------|---------------|-------------------------------|---------------------------------|----------------|---------| | | | | | | | | | | | |
**Employment**
| Vessel and Offshore Number | Engagement | Discharge | Character | |----------------------------|------------|-----------|-----------| | | | | |
**Remarks**
- 18/02/1871: State is master of H.M.S. "Saxonia." Commanded by Captain W. H. G. Smith. Discharged 20/02/1871.
- 20/02/1871: State is still in command of "Saxonia." Courses of Voluntary Training, and Service in H.M. Ships when called out.
| Date of Application | Nature of Application | Action taken | Date from which appointed | Rank | Course or Service for which appointed | SHIP | Serv | From | To | Conduct | Officer of Watch | Torpedo | Signals | Navigation | REMARKS | TRAINING PER OR RETAINER | |---------------------|-----------------------|--------------|---------------------------|------|--------------------------------------|------|------|------|----|---------|---------------------|---------|---------|-----------|---------|------------------------| | | | | | | | | | | | | | | | | | |
Date | MISCELLANEOUS | Date | ADDRESS | TRAINING PER OR RETAINER (continued) | |-----|---------------|------|---------|-------------------------------------| | | | | | Date of application | Year (or Quarter) | Date | If Retainer | Amount | | | | | | for which payable | Sent to Board of Trade | Of payment | | |
Date: 30th June 1917 Name: William Holmes Hoosack R.D. Number: 1054
Catalogue Reference: ADM/340/70 Image Reference: 20
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d5752c2c22740daa8fe9334e7892e1bc4ef3edd7 | The AVA-Kinetics Localized Human Actions Video Dataset
Ang Li\\textsuperscript{1} Meghana Thotakuri\\textsuperscript{1} David A. Ross\\textsuperscript{2} Jo˜ao Carreira\\textsuperscript{1} Alexander Vostrikov\\textsuperscript{1}\\textsuperscript{\*} Andrew Zisserman\\textsuperscript{1,4}
\\textsuperscript{1}DeepMind \\textsuperscript{2}Google Research \\textsuperscript{4}VGG, Oxford
{anglili,sreemeghana,dross,joaoluis,zisserman}@google.com [email protected]
Abstract
This paper describes the AVA-Kinetics localized human actions video dataset. The dataset is collected by annotating videos from the Kinetics-700 dataset using the AVA annotation protocol, and extending the original AVA dataset with these new AVA annotated Kinetics clips. The dataset contains over 230k clips annotated with the 80 AVA action classes for each of the humans in key-frames. We describe the annotation process and provide statistics about the new dataset. We also include a baseline evaluation using the Video Action Transformer Network on the AVA-Kinetics dataset, demonstrating improved performance for action classification on the AVA test set. The dataset can be downloaded from https://research.google.com/ava/.
1. The AVA-Kinetics Dataset
The Kinetics \\cite{carreira2017quo} dataset was created to support representation learning in videos by providing a large classification task where researchers can explore architectures and pre-train models that can be finetuned on a variety of downstream tasks, similar to what happened with ImageNet \\cite{deng2009imagenet} and image representations.
Downstream tasks tend to have more detailed annotations and are hence more expensive to annotate at scale. The AVA dataset \\cite{li2019ava} presents one influential example of a video task that is expensive to annotate – instead of a single label per clip as in Kinetics, every single person in a subset of frames gets a set of labels. This task is also interesting because pre-training on Kinetics leads to small improvements – the state-of-the-art is still just at 34% average precision \\cite{carreira2019quo}.
This motivated us to create a crossover of the two datasets. The AVA-Kinetics dataset builds upon the AVA and Kinetics-700 datasets by providing AVA-style human action and localization annotations for many of the Kinetics videos. In this section, we introduce the AVA and Kinetics datasets briefly and describe the AVA annotation procedure applied to build the AVA-Kinetics dataset. The statistics of the dataset are also provided and analyzed in Section 2.
1.1. Background
The AVA dataset \\cite{li2019ava} densely annotates 80 atomic visual actions in 430 15-minute movie clips. Human actions are annotated independently for each person in each video, on key-frames sampled once per second. The dataset also provides bounding boxes around each person and each person has all its co-occurring actions labeled (e.g., standing while talking) for a total of 1.6M labels. The Kinetics dataset is another large-scale curated video dataset for human action recognition covering a diverse range of human actions. Kinetics has progressed from Kinetics-400 to Kinetics-700 over the past few years. The Kinetics-700 dataset has 700 human action classes with at least 600 clips for each class, and a total of around 650k video clips. For each class, each clip is from a different Internet video, lasts about 10s and has a single label describing the dominant action occurring in the video.
1.2. Data Annotation Process
The AVA-Kinetics dataset extends the Kinetics dataset with AVA-style bounding boxes and atomic actions. A single frame is annotated for each Kinetics video, using a frame selection procedure described below. The AVA annotation process is applied to a subset of the training data and to all video clips in the validation and testing sets from the Kinetics-700 dataset. The procedure to annotate bounding boxes for each Kinetics video clip was as follows:
1. **Person detection**: Apply a pre-trained Faster RCNN person detector on each frame of the 10-second long video clips.
2. **Key-frame selection**: Choose the frame with the highest person detection confidence as the key-frame of each video clip, at least 1s away from the start/endpoint of the clip.
3. **Missing box annotation**: Human annotators verify and annotate missing bounding boxes for the key-frame.
4. **Human action annotation**: Obtain a 2-second video clip centered on the key-frame. Multiple human raters (at least 3) then propose action labels corresponding to the persons in the key-frame bounding boxes.
5. **Human action verification**: Human raters assess all the proposed action labels for a final verification. Each label which is verified by a majority, of at least 2 of 3 raters, is retained.
A difference from the original AVA dataset, is that only one key-frame is annotated for each Kinetics video clip. The Kinetics training set is sampled for annotation as follows: first, we prioritize AVA classes with poor recognition performance by selecting a shortlist of 27 out of the original 80 AVA classes which have shown weak performance in the past literature. We hand-select 115 relevant action classes from the Kinetics dataset (listed in Appendix A) by text matching to this shortlist, and the annotation pipeline is applied to all Kinetics videos containing those actions.
Table 1. The number of annotated frames and the number of unique video clips in different splits for the AVA-Kinetics dataset. AVA-Kinetics data is a combination of AVA and Kinetics. While the numbers of annotated frames are roughly on par between AVA and Kinetics, Kinetics brings many more unique videos to the AVA-Kinetics dataset.
| | # unique frames | # unique videos | |----------|-----------------|-----------------| | | AVA Kinetics | AVA-Kinetics | | Train | 210,634 | 141,475 | | Val | 57,371 | 32,511 | | Test | 117,441 | 65,016 | | Total | 385,446 | 238,984 |
Clips from the remaining Kinetics classes are sampled uniformly (we have not yet annotated all of them). Different from the training set, the Kinetics validation and test sets are both fully annotated.
2. Data Statistics
We discuss in this section characteristics of the data distribution in AVA-Kinetics and compare it with the existing AVA dataset. The statistics of the dataset are given in Table 1 which shows the total number of unique frames and that of unique videos in these datasets. Kinetics dataset contains a large number of videos so it contributes a lot more unique videos to the AVA-Kinetics dataset.
We show in this section the statistics of AVA v2.2 which contains 80 classes, however, in experiments, we follow the protocol of AVA challenge and only predict 60 classes.
2.1. Sample distribution
The number of samples for each class is given in Figure 2. One sample corresponds to one bounding box with one action label. The class statistics in AVA and Kinetics show similar trends, in particular both datasets exhibit a long-tailed sample distribution. However, we observe that Kinetics adds a substantial number of samples to most of the classes. Especially for the class “listen to”, Kinetics introduces significantly more training samples.
2.2. Video distribution
Figure 3 shows the diversity of videos between the two datasets. The plot is in log scale and shows the property that Kinetics contains significantly more unique videos for each label. As stated before Kinetics is composed of many unique short videos, 10 second long, and a single key-frame is annotated with AVA labels. The AVA videos are much longer and are used to produce multiple clips for action localization. For AVA, the maximum number of unique videos per class is 235, while Kinetics has over 10,000 unique videos for the top classes. In addition, half of the classes in Kinetics have over 300 unique video clips. 2.3. Correlation between Kinetics and AVA classes
Since we have annotations for both AVA classes and Kinetics classes for the Kinetics video, we compute the Normalized pointwise mutual information (NPMI) of the two types of classes. NPMI is defined as
[ NPMI(x, y) = \\frac{\\log p(x) + \\log p(y)}{\\log p(x, y)} - 1 ]
where ( p(x) ) is the frequency of class ( x ). ( NPMI(x, y) ) is a real value between -1 and 1. ( NPMI(\\cdot, \\cdot) = 1 ) means the two classes are highly correlated while ( NPMI(\\cdot, \\cdot) = -1 ) means the two labels never co-occur.
We further rank the AVA classes for each Kinetics class according to their NPMI scores. The Kinetics class “dancing gangnam style” is highly related to the AVA classes “dance”, “listen (e.g., to music)” and “watch (e.g., TV)”. While “dance” is directly related, “listen” and “watch” could also happen when someone is watching another person dancing gangnam style.
We show in Table 3 the reversed correlation, i.e., top Kinetics classes related to a certain AVA class. We pick a list of AVA classes with the least occurrence frequency and show their top relevant Kinetics class labels. The class “stir” is related to “scrambling eggs”, “making tea” and “making slime”. The three cooking activities all requires a stirring action in practice. 2.4. Person distribution
Figure 4 shows the number of person bounding boxes per frame in both AVA and the Kinetics dataset. The distributions are roughly the same. We observe a substantial number of frames with no person detected in both datasets. And the majority of the key-frames have only 1 person detected. Frames that contain more than 5 persons are very rare. The average number of boxes per frame in AVA is 1.5 and that of Kinetics is around 1.2.
2.5. Person box size distribution
We also study the size of the person bounding boxes in both datasets. Figure 5 shows the distribution of person bounding box areas. The area is normalized according to a 1x1 square image. We observe that the majority of the person boxes are small relative to the image. An interesting finding is that Kinetics videos tend to contain smaller person bounding boxes, compared to AVA videos.
3. Benchmarking Results
We experiment with the new dataset using the Video Action Transformer Network [4] on top of ground truth person bounding boxes. Using ground truth boxes makes it possible to evaluate action classification accuracy separately from object detector failures. The original AVA paper [5] reports 75% mean AP person detection at 0.5 IoU using Faster RCNN with a ResNet-50 backbone; the Action Transformer [4] reports an improvement on AVA score. Figure 4. Number of bounding boxes per frame comparing the AVA train set (blue) and the Kinetics train set (green). The stacked bar shows the distribution of the AVA-Kinetics train set. There is a substantial number of frames with no person detected. The majority of the key-frames contains only one bounding box.
Figure 5. The distribution of the area of person bounding boxes in the AVA train set (blue) and the Kinetics train set (green). The area is normalized according to a 1x1 square. The peak area in AVA is around 0.02 while the peak in Kinetics is around 0.01. It is observed that Kinetics dataset produces significantly more smaller person bounding boxes.
from 17.8% to 29.1% when using ground truth bounding boxes instead of automatically detected ones – 11.2% absolute. This is a significant improvement, but still small when considering the remaining 70% left to get perfect performance. These results seem to suggest that plain action classification, of all things, is still very challenging in the multi-label case (Charades [9] is another difficult multi-label action classification dataset, minus the spatial aspect). In addition to ground-truth based action classification, we also report results using a pre-trained person detector to propose boxes at the test time.
3.1. Action Transformer: Short Recap
The original Action Transformer [4] uses a 3D convolutional backbone to generate a spatiotemporal grid of features for each clip. In practice a video is divided into many clips, one around each key-frame. Using the spatiotemporal grid of features, a detector (e.g. the Region Proposal Network from Faster-RCNN) generates a number of object boxes for the middle frame. A positional embedding is added to the feature grid, which then gets ROI-pooled for each box and the resulting features are passed through a stack of transformers. The queries in the transformers are obtained by either averaging the spatio-temporal ROI-pooled features or using a more sophisticated merging operation that better preserves spatial configuration information – for the purpose of ground truth box classification simpler averaging did better so we use that. The keys and values are directly derived from the original non-ROI-pooled grid of features. Overall the model tries to capture the relationship between each person and the whole scene.
Here we use a simplified model without any of the region proposal machinery. Instead we train on ground truth boxes then test on either ground truth boxes or on person detections provided by a more recent state-of-the-art detector [10].
3.2. Overall performance with groundtruth boxes
We show action classification performance with ground truth boxes in 9 different settings in Table 4 using three different training sets and three validation sets. AVA-Kinetics train/val is basically a combination of the corresponding AVA and Kinetics data.
The table shows that the additional Kinetics training data leads to an improvement when evaluating on the original AVA validation set (+5.26 mAP). It also suggests that training on the Kinetics clips provides for more stable generalization: performance is close to an AVA-trained model on AVA validation, but the performance of the AVA-trained model is much lower on Kinetics validation clips. Finally training on the full AVA-Kinetics training set leads to the best performance on the full AVA-Kinetics validation set as would be expected.
3.3. Overall performance with detected boxes
Table 5 shows the corresponding results when using automatically detected boxes at test time. We used the Center- Figure 6. Per-class performance on AVA validation set for three action categories: person-person interaction, person-object interaction and person pose. The bars above zero-axis represent the average precision value while the transparent bars below the zero-axis represent the number of examples in the corresponding training datasets. The ground-truth boxes are used at both training and test time.
Figure 7. Per-Class Evaluation on AVA-Kinetics validation set. Compared models are trained on AVA, Kinetics and AVA-Kinetics (combined). The ground-truth boxes are used at both training and test time. The bars above zero-axis represent the average precision value while the transparent bars below the zero-axis represent the number of examples in the corresponding training datasets. Net [10] person detector to generate a small set (about 2.5 boxes per key-frame) of confident detections that are fed to the video action transformer model. The object detector is trained on COCO [7] 2017 training set and achieves 43% mAP on COCO 2017 validation set. Only those boxes detected with the “person” class are used as proposals for video action detection. For simplicity, the same model trained on ground truth boxes was employed – the only change is at test time when detected boxes were used.
The results are mostly consistent with those evaluating on ground truth boxes, showing an improvement on AVA validation when training on the AVA-Kinetics training set (+3.96 mAP). Overall the values are slightly lower due to imperfect detection. The original action transformer model reports higher AVA-train to AVA-val mAP but it uses a more complex training procedure with a region proposal network and background negative example selection whereas we use just ground truth boxes for training.
3.4. Per-class performance
In addition to the overall comparison, we plot the per-class performance on same AVA validation set using the three different training splits (AVA, Kinetics, AVA-Kinetics). The comparison is shown in Figure 6 where all the AVA classes are divided into three categories: person-object interaction, person-pose and person-person interaction. The total number of training samples is also plotted in log-scale below the zero-axis in each sub-figure. It is observed that the overall performance on person-pose classes is relatively higher while person-object classes seem to be the most difficult cases to recognize. Notably, the performances on “watch (e.g., TV)”, “cut”, “hand shake”, “jump/leap” and “swim” are significantly improved by using the new Kinetics data. A similar per-class evaluation on the full AVA-Kinetics validation set is shown in Figure 7.
3.5. Performance improvement vs. data increase
We study in Figure 8 how the performance improvement is related to the increase of data. The x-axis is the percentage of increased sample size from AVA training set to AVA-Kinetics training set. This is basically the ratio of Kinetics sample size vs. AVA sample size on the same label class. The y-axis is the improvement of mAP, i.e., the mAP of a model trained on AVA-Kinetics set subtracts the mAP of a model trained on AVA set. Some of the class names are shown nearby the corresponding data points. The mAP metric is measured on the AVA-Kinetics validation set. We observe that only one class “enter” (red colored) has a performance drop (0.76% mAP lower). All other classes benefit from training on more Kinetics videos. Among the most improved classes are “play musical instrument”, “swim” and “listen (e.g., to music)” – in these cases the number of training examples has more than doubled the original.
4. Conclusions
We have presented the AVA-Kinetics Localized Human Actions Video Dataset which is a crossover of the Kinetics and AVA datasets. AVA has detailed multi-label annotations for all people but restricted visual diversity at around 500 unique videos; Kinetics has a single label per video but a very wide visual diversity given its 600k unique videos. By annotating one frame in each Kinetics video with AVA boxes and labels, we obtain the AVA-Kinetics dataset with a richer training set and also a test set that better reflects true model generalization.
We believe this dataset can be a useful aid for research in a variety of settings in video. For example in multi-task learning (training on both AVA and Kinetics labels vs individual ones) or in transfer learning (how does pre-training on Kinetics then finetuning on AVA compare to directly training on AVA-Kinetics?).
Acknowledgements:
The collection of this dataset was funded by DeepMind and Google Research. The authors would like to thank Vighnesh Birodkar, Yu-hui Chen, Jonathan Huang, Vivek Rathod for their help on the object detection, Yeqing Li for his help on the action annotation pipeline, and Jean-Baptiste Alayrac for reviewing a paper draft. We would also like to thank Rahul Sukthankar, Victor Gomes, Ellen Clancy and Chloe Rosenberg for their contributions to this work.
References
[1] Joao Carreira, Eric Noland, Chloe Hillier, and Andrew Zisserman. A short note on the kinetics-700 human action A. Fully annotated Kinetics classes
As mentioned above, we hand picked 115 Kinetics classes that are most related to the hardest AVA classes and annotated all of their training set examples. The full list is the following:
swimming, swimming backstroke, swimming breast stroke, swimming butterfly stroke, swimming front crawl, swimming with dolphins, swimming with sharks, scuba diving, diving cliff, helmet diving, pushing car, pushing cart, pushing wheelbarrow, pushing wheelchair, giving or receiving award, putting on sari, putting on shoes, watching tv, card throwing, catching or throwing baseball, catching or throwing frisbee, catching or throwing softball, hammer throw, javelin throw, throwing axe, throwing ball (not baseball or American football), throwing discus, throwing knife, throwing snowballs, throwing tantrum, throwing water balloon, assembling computer, climbing a rope, climbing ladder, climbing tree, ice climbing, mountain climber (exercise), rock climbing, giving or receiving award, marriage proposal, headbanging, listening with headphones, silent disco, beatboxing, gospel signing in church, singing, karaoke, carrying baby, pull ups, push up, wrestling, arresting, arm wrestling, wrestling, shaking hands, tango dancing, clean and jerk, dealing cards, building lego, card stacking, sipping cup, cutting watermelon, cutting pineapple, cutting orange, cutting cake, cutting apple, taking photo, pulling rope (game), entering church, using a wrench, sharpening pencil, using a paint roller, deadlifting, lifting hat, snatch weight lifting, stacking dice, sign language interpreting, pushing wheelchair, tackling, playing american football, mosh pit dancing, wrestling, punching person (boxing), hitting baseball, punching bag, golf chipping, golf driving, golf putting, flint knapping, falling off bike, falling off chair, faceplanting, triple jump, high jump, bungee jumping, parkour, gymnastics tumbling, playing laser tag, playing paintball, triple jump, high jump, long jump, jumping jacks, bungee jumping, springboard diving, bouncing on trampoline, gymnastics tumbling, jumping sofa, jumping into pool, waving hand, finger snapping, drumming fingers, playing hand clapping games, pumping fist
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42a81372b764895c300ec18d4ca282c40d674700 | ENTERPRISE INVESTMENT SCHEME
Guidelines for the Approval of EIS Knowledge-Intensive Funds
1. The EIS rules provide for tax reliefs to be available for investment made by individuals through nominees, including where the nominee is an investment fund manager. If a fund manager wishes to, it can seek approval for its investment fund under section 251 ITA 2007, so that the fund is an “approved knowledge-intensive fund” (“approved KI fund”).
It is not necessary to obtain such approval for an investment fund in order for the individual investors to qualify for EIS relief, but approval has certain advantages. In particular, an individual who invests in an approved KI fund may be able to obtain relief earlier than if the fund had not been approved (see paragraph 12 below).
2. In this document:
- References to “CTA 2010” are references to the Corporation Tax Act 2010;
- “EIS” means the Enterprise Investment Scheme;
- references to “ITA” are references to the Income Tax Act 2007;
- “fund” means an approved KI fund under section 251 ITA;
- references to “FSMA” are references to the Financial Services and Markets Act 2000;
- “prospectus” means any prospectus, brochure, memorandum or other document inviting participation in an investment fund and approved by the UK Listing Authority (UKLA);
- “manager” means the person or persons responsible for the management of an approved investment fund;
- “shares” means ordinary shares which meet the requirements of section 173 ITA.
3. These guidelines set out, for the benefit of persons intending to set up a fund, the principal criteria used by HMRC in deciding whether to approve a fund. They should not, however, be regarded as anything more than guidelines; they do not attempt to deal with every consideration which may be relevant. The guidelines also refer to various matters which, although not essential, prospective fund managers may wish to cover in the memorandum.
4. The prospectus should reproduce the following paragraph in a prominent position:
“The approval of a fund by HM Revenue & Customs is relevant only for the purpose of attracting certain tax advantages provided by section 251, Income Tax Act 2007. Such approval covers only certain administrative matters. It in no way bears on the commercial viability of the investments to be made; neither does it guarantee the availability, amount or timing of relief from income tax or capital gains tax.”
The manager of the investment fund
5. The manager of the fund should be a person authorised to carry on investment business by the Financial Services Authority under the FSMA.
Participation in the fund
6. Participation in the fund need not be restricted to individuals seeking tax relief under the EIS, provided that applicants are required to state on the application form whether they will be seeking such relief.
The participant's interest in the shares
07. The shares in which the fund capital is invested should be subscribed for by, issued to and held by the manager, acting as nominee of each individual participant, and the memorandum should contain a clear statement of this relationship. Under section 250 ITA the shares will be treated for the purposes of the legislation relating to income tax relief under the EIS as subscribed for by, issued to and held by the participant personally. No security similar to the units of an authorised unit trust should be interposed between the participant and the shares. The participant must at all times be the beneficial owner of the shares, being entitled to a whole number of shares in each company and not just having a proportionate interest in all the shares in which the fund capital is invested.
08. Provision may be made for participants to be allowed to end their participation in the fund at any time, but if a participant exercises any such right the manager must sell all the shares which are held on behalf of that person. The closing of the fund
09. In order that the amount invested in each company may be spread pro rata between all the participants (see paragraph 14 below) the manager should not make any investment of the fund capital until the fund has closed.
10. If a prospectus is issued for a fund which is to be managed by a person or persons already managing another fund, HMRC normally requires that the new fund shall not close until the earlier fund has been invested to the extent of 50% of its capital.
The process of investment
11. The fund should be invested in a minimum of four companies, and the amount invested in any one company should not exceed 50% of the fund capital. The manager's stated intention should be to use the fund capital only to make investments which will enable participants to obtain tax relief under the EIS on the full amount subscribed. The manager may reserve the right to return any small surplus which cannot be invested to the participants.
12. Under section 251 ITA, if the fund has: • invested 50% of its capital within 12 months of the date the fund closed, • invested 90% of its capital within 24 months of the date the fund closed, • within that 24 month period at least 80% of the fund’s capital has been invested in the shares of companies that were knowledge-intensive at the time the shares were issued, and • provided certain information to HMRC (see paragraph 22 below)
then the investments are to be treated as made in the year in which the fund closed, even if they were actually made in a later year. Investors may also elect under section 158(4) ITA to treat some or all of their investments as made in the year prior to that in which the fund closed.
13. The prospectus should state whether the manager intends the fund to satisfy this condition. If, in order to do so, it is necessary to return any part of the amount subscribed to participants, that should be done before the 24 months have expired. Allocation of shares between participants
14. The number of shares in each company allocated to each participant should be calculated by reference to the proportion that his or her subscription to the fund bears to the total subscriptions of all participants, except as set out in paragraph 15 below. Minor variations from such pro rata allocation are permissible, however, in order to avoid the holding of fractions of shares or to avoid a participant's being allocated a very small number of shares in a particular company. The circumstances in which any such variation would be made should be set out in the prospectus.
15. The manager may arrange to exclude practising accountants or other professional persons from any investment which their professional rules prevent them from making. Any amounts not invested for this reason should be returned to the participants concerned and not used to increase their share of other fund investments.
Realisation of investments
16. Participants should not be allowed to instruct that particular shares should be sold on their behalf, although they may be allowed to end their participation in the fund altogether (see paragraph 8 above).
17. The prospectus should set out the manager's proposals for termination of the fund. Termination is achieved either by disposal of all the holdings of shares or by the transfer of all shares held into the names of the participants. The manager may reserve the power to dispose of shares within 3 years of their issue provided that the circumstances in which that may be done are set out in the memorandum. Where only part of a holding is disposed of, the number of each participant's shares disposed of should be determined in a way compatible with the rules for their allocation (see paragraph 14 above).
18. Any option for the manager to subscribe on his or her own behalf for the shares of a company in which an investment has been made through the fund should not be capable of assignment, except to employees of the manager, until 3 years have elapsed since it was made. Certificates of relief and reports to participants
19. In order to obtain tax relief participants need certificates issued under section 251 ITA to the effect that the manager holds forms EIS 3 issued by the companies invested in. These certificates should be given to the participants by the manager on forms EIS 5, which are obtainable from HMRC only after the provision of the information set out in paragraph 22 below.
20. Forms EIS 5 can be provided to the manager at any time once the conditions described in paragraph 12 above have been met. For example, if an approved fund invests 90% of its capital in KI companies within 6 months of the fund having closed, the fund manager may request the forms EIS 5 for issue from HMRC at that point – there is no need to wait until 24 months have elapsed. A manager cannot issue an EIS5 without HMRC’s approval.
21. If it is not possible to certify that the conditions have been met within 24 months of the date when the fund closed guidance should be sought from HMRC.
22. HMRC will not provide an approved fund manager with forms EIS 5 unless the fund manager has given HMRC the following information:
- the date that the fund closed,
- the names, addresses and Unique Taxpayer Reference numbers of the investors in the fund,
- the total amount of capital the fund has received from each of those investors,
- the shareholdings in which that capital has been invested,
- the date on which each of those investments was made, and
- whether or not each shareholding was in a KIC at the time the investment was made.
23. Fund managers should make reports to participants on their investments from time to time in accordance with FSMA requirements. When dividends are received on their behalf appropriate statements should be sent to them in accordance with section 1105 CTA 2010.
Application form
24. The form on which applications to participate are invited should require applicants to declare that they are applying on their own behalf, and that they will notify the manager: • if any investment is made in a company with which they are connected as defined in sections 166, 167, 170 and 171 ITA, or • if within three years of the issue of the relevant shares they become connected with a company invested in or receive value from such a company.
Being connected with a company will result in the loss of income tax relief in respect of that investment unless, exceptionally, the participator is a "business angel" qualifying for relief by virtue of sections 169 and 170 ITA.
The form should also request individual applicants to state their Unique Taxpayer Reference number and National Insurance number.
**Enterprise Investment Scheme rules**
25. Any direct or indirect references to the rules of the Enterprise Investment Scheme in the prospectus should be accurate and fair in the view of HMRC.
26. The prospectus should explain the procedure by which participants will become able to claim tax relief and set out the time limit for doing so.
**Obtaining approval**
27. Anyone seeking approval for a proposed investment fund should send a copy of the draft prospectus to:
Business, Assets & International (Innovation & Growth Team) HM Revenue & Customs 3C/21, 100 Parliament Street LONDON SW1A 2BQ
Or by email to: [email protected]
28. The letter applying for approval should state that the manager will:
• send to HMRC, when requested to do so, the information referred to in paragraph 22 above. • notify HMRC without delay if a participant reports that he or she has become connected with a company in which an investment has been made, or has received value from such a company. • notify HMRC without delay of any event which has caused a company in which an investment has been made not to be a qualifying company, or not to have been a KI company at the time the investment in that company was made.
The letter should also certify that the manager is satisfied that the prospectus submitted complies in all respects with the regulations issued by the Financial Services Authority or the requirements of the FSMA.
29. Requests for approval are dealt with as quickly as possible, however it is advisable not to fix any launch date for a fund until formal approval of the fund has been obtained.
Further questions
30. Enquiries may be made to HMRC at the address given above or by email to [email protected].
BAI Innovation & Growth HM Revenue & Customs July 2020
© Crown Copyright
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ad4b97d01bcbe1435d9e0c6d7785f258bcc1494d | THE OFFICE OF RAIL AND ROAD 147TH BOARD MEETING 10:30-16:45 MONDAY 30 APRIL 2018 ONE KEMBLE STREET, LONDON WC2B 4AN
Non-executive members: Stephen Glaister (Chair), Tracey Barlow, Anne Heal, Bob Holland, Michael Luger, Justin McCracken, Graham Mather
Executive members: Joanna Whittington (Chief Executive), John Larkinson (Director Railway Markets and Economics), Ian Prosser (Director Railway Safety), Graham Richards (Director Planning and Performance).
In attendance: Dan Brown (Director Strategy and Policy), Russell Grossman (Director Communications), Juliet Lazarus (Director Legal Services and Competition), Tess Sanford (Board Secretary), Richard Gusanie (PR18 Programme Manager); Chris Hemsley (PR18 Programme Director), Carl Hetherington (Deputy Director, RME)
For the morning session: Anna O’Connor, Steven Dennis, Sneha Patel, Anna O’Connor, Roger Davies
Other ORR staff in attendance are shown in the text.
Item 1 WELCOME AND APOLOGIES FOR ABSENCE
1. The chair welcomed everyone to the meeting. There were no apologies for absence.
Item 2 DECLARATIONS OF INTEREST
2. None in relation to this agenda.
Item 3 APPROVAL OF PREVIOUS MINUTES AND MATTERS ARISING
3. The minutes of the meeting on 24 April had been circulated in uncorrected draft for information. A corrected set would be circulated with the May board papers for approval.
Item 4: PR18 DRAFT DETERMINATION
4. Before the main business of the meeting began, the chair congratulated the team on a comprehensive and coherent set of papers that he thought would make a difficult set of decisions achievable within the time planned.
5. John Larkinson set out the plan for the meeting and reminded the board of the relevant legal framework, which was noted. The board needed to ensure appropriate weight was given to each duty in making decisions about the periodic review and staff would remind them of any that were particularly relevant as the items were discussed.
The remainder of the PR18 discussion is redacted until after the final determination has been published.
Next steps 47. John Larkin proposed that the ‘overall framework’ document and the executive summary should be combined into one document which contained sufficient detail to ensure clarity for the main audience.
48. John asked the board to be ready to respond promptly to requests for comment over the next period as the details of the draft determination continued to be refined.
Item 5 ANY OTHER BUSINESS
49. There was no other business and the meeting closed at 15:45.
Signed
Stephen Glaister 28 June 2018
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38b8615f0f56ceb3f67bbca6e146a23f9561aa1c | THE OFFICE OF RAIL AND ROAD 148th BOARD MEETING 09:00-13:15 TUESDAY 22 MAY 2018 ONE KEMBLE STREET, LONDON WC2B 4AN
Non-executive members: Stephen Glaister (Chair), Tracey Barlow, Anne Heal, Justin McCracken, Michael Luger
Executive members: Joanna Whittington (Chief Executive), John Larkinson (Director Railway Markets and Economics), Graham Richards (Director Railway Planning and Performance); Ian Prosser (Director Railway Safety) – to item 9.
In attendance: Dan Brown (Director Strategy and Policy), Freya Guinness (Director Corporate Operations and Organisational Development) – to item 6, Juliet Lazarus (Director Legal Services and Competition), Tess Sanford (Board Secretary)
Other ORR staff in attendance are shown in the text.
Item 1 WELCOME AND APOLOGIES FOR ABSENCE
1. The chair welcomed everyone to the meeting. Apologies had been received from Graham Mather, Bob Holland and Russell Grossman (Director Communications).
Item 2 DECLARATIONS OF INTEREST
2. Justin McCracken reminded the board of his previously declared interest as a Director of Ombudsman Services Ltd. This was relevant to item 6: he had not received the papers and would withdraw from the discussion.
Item 3 APPROVAL OF PREVIOUS MINUTES AND MATTERS ARISING
3. The minutes of the two meetings on 24 and 30 April had been circulated. Further thought should be given to appropriate redaction periods and some corrections were agreed. The chair would sign updated minutes.
Item 4: HEADLINES AND REGULAR REPORTS
4. Ian Prosser updated the Board on: progress on investigations into the Sandilands tram incident and work with the industry and DfT to address RAIB’s recommendations; a successful recent prosecution against NR for insufficient risk assessment of a level crossing; rising awareness among the charter industry of the need for improvements to rolling stock to avoid flushing toilets onto track; current industrial disputes on DCO. IP would circulate his recent letter to NR clarifying responsibilities for vegetation management and proper risk assessment of issues arising [Action]. The board asked for more explanation of the apparent significant reduction in reported HAVS cases [Action]. The board sought and received assurance that LUL’s delay in sharing reporting data was not a current cause for concern.
5. Graham Richards reported on roads: the launch of an improved strategic roads user satisfaction survey with a much larger sample size which should improve understanding of the impact of HE interventions on the road user experience.
6. On rail: he reported on the immediate impact of the major timetable change implemented on 21 May. The customer team were following up on a press story about guidance to TOC staff on the treatment of limited mobility customers who might delay services – the board asked for a report [action].
7. The board noted the number of industry wide issues generating public concern at the moment (industrial action, franchises, poor performance by TOCs and separately by NR) most of which were outside ORR’s remit.
8. John Larkinson reported on HAL’s application to apply a mark up to recover fixed costs through its charges, which had been approved by staff. He also reported on ongoing work to develop precursor indicators for CP6, and updates on three open access applications (two existing – WCML and Southampton - and one new).
9. Joanna Whittington reported on: RDG’s review of fares; the termination of VTEC’s ECML franchise and ORR’s work with the supplier of last resort to ensure their operations could begin; meetings with ministers; work on the Channel Tunnel; NR’s new CEO. Internally she reported on: the accommodation project and work to make us GDPR compliant. Board members sought and received assurance that the annual appraisal, business planning and objective setting processes were in hand for all staff.
Item 5 ANNUAL REPORT AND ACCOUNTS
Lucy Doubleday attended the meeting for this item.
10. Lucy reported that the NAO would issue an unqualified audit opinion and, as a result of greater assurance around ORR controls, had reduced the audit fee this year. She highlighted changes from the previous year’s report which included the new page on employee matters and an analysis of trades union facility time. One correction had been made to the circulated text on p 62 which related to pension eligibility for non executives.
11. The board noted the Annual Report and Accounts and recommended them to the Accounting Officer for signature.
Item 6 PR18 – RAIL OMBUDSMAN/ALTERNATIVE DISPUTE RESOLUTION
Owing to a previously recorded potential conflict of interest, Justin McCracken left the meeting for this item.
Stephanie Tobyn, Marcus Clements, and George Denham joined the meeting for this item
12. RDG were developing a new scheme of alternative dispute resolution (ADR) for customers, recognising the reputational benefits that good complaint handling could bring to the industry as well as the direct benefit to customers who used the service. The paper updated the board and reported on the consultation that ORR support this initiative by requiring licence holders to join the industry scheme through an enforced change to the licence. The board discussed the evidence set out in the paper and considered the likely handling issues. On the current timetable, the scheme would be in place for about six months before membership
______________________________________________________________________
1 Heathrow Airports Limited became a licence condition. The board discussed the inclusion of stations and charter operators in the scheme, and other areas for consideration through the consultation. The board noted that licence holders would have a right of appeal to the CMA if they wanted to challenge the enforced licence change.
Justin McCracken rejoined the meeting.
Item 7 INFORMED TRAVELLER
Rob Plaskitt joined the meeting for this item
13. John Larkinson updated the board on the three investigations into issues linked to NRs failure to meet the T-12 standard for timetable publication.
14. Updates were due this week from TOCs on their plans to improve the quality of public information on their own websites. There was a mixed picture here with some poor performers.
15. The executive had asked NR to provide a simple report on progress against their recovery plan. This showed a mixed picture with some recovery for most operators although significant risks remained to the target of achieving T-12 by January 2019.
16. The investigation into root causes had not identified a single cause although the impact of late notice possessions and undelivered enhancements were still being examined.
17. The board discussed the importance of making the public aware that some sources of information were unreliable and the need to make accurate timetabling information available in good time. Our correspondence with TOCs on this would be published and John Larkinson was asked to report on TOC responses. [Action]
18. The board discussed the challenge for NR of timetabling around short notice possessions and the additional resource that this required. The board discussed the future challenges for the System Operator (SO) around this critical function and others. The success of NR’s transformation programme relied in the long term on the SO having understanding of the operational railway and authority to ensure that short term imperatives in the routes did not damage the long term and strategic interests of the network.
19. The board noted the update on the three strands of the investigation and the expectation that staff would issue case to answer letters in due course. A further update should be provided at that point. [Action: forward programme].
Item 8 NETWORK RAIL PERFORMANCE IN 2017-18
Rob Plaskitt, Andy Lewis, Richard Coates and Ian Ritchie joined the meeting for items 8, 9, 10
20. Andy Lewis introduced the proposed key messages for the report, noting that year 4 of CP5 was important context for PR18 and plans for CP6. This year’s report would include more route specific data than previously.
21. The board discussed this early draft and suggested additional content following up on areas highlighted in our reports in 2017, particularly the management of change in NR, the overall positive context on safety and evidence of lessons learned (such as the on time delivery of Dunblane Alloa). The evidence was likely to show a mix of good and poor performance in different functions and routes. The board discussed the wider context for the report, considering the apparent increased stability and improvement in delivering plans, including in finance, within NR over recent years. The question was whether ORR could cite evidence to indicate that the stabilisation was real and would give a base for improvements in performance in future. In that context, it would be useful to be able to report NR’s performance separately to TOC performance.
22. The board noted the report.
Ian Prosser left the meeting to attend an industry Health and Safety meeting
Item 9 HIGHWAYS ENGLAND PERFORMANCE IN 2017-18
23. Iain Ritchie reported on a broadly positive set of measures and highlighted future risks to sustaining the levels. HE had had a steady year in managing costs and overruns in their under-developed five year plan. The board noted that issues caused by poor original costing and planning of capital projects could be compounded by enforced changes of scope by the shareholder and local planning requirements. Governance and planning for future projects needed to be more effective and better informed. On the other hand, pavement condition had improved over last year and such evidence also needed to be included.
24. The board noted the report.
Item 10 RAIL/ROAD SYNERGY
25. The board discussed the paper, which compared the two sets of messages. Where there was scope for read-across between our work on HE and NR it was powerful with useful comparators. The board discussed the performance on workforce safety in both organisations and the potential benefits of route based comparisons in HE. The board noted ORR’s different approaches on management incentive schemes, driven partly by the differences in our roles. Where there were apparent inconsistencies in the way we approached an issue that we could not eliminate, it would be important to be able to explain why they existed.
26. The board noted the report.
Item 11 PR18 – MANAGING CHANGE IN CP6
Carl Hetherington, Nick Hall, Paul Darby, Claire Simpson, Liz Thornhill attended for this item
34. John Larkinson introduced the item which was seeking Board’s agreement to a range of issues which had previously been discussed and consulted on around the management of change and risk by NR during CP6.
The rest of this item has been redacted until after publication of the final determination
Item 12 PRI8 UPDATE
35. John Larkinson tabled some slides with an update of the PR18 programme which reflected that policy discussions are going well, but that delivery carried significant risk. He gave updates on: NR income forecasts, performance innovation fund, Anglia performance trajectories, NR’s scenario planning for performance trajectories and improved asset condition. NR continued to review our challenge on ‘headwinds’. The work to update our enforcement policy would be reflected by some ‘minded to’ sections in the draft determination.
36. Drafting was behind schedule and some subsidiary documents would be published after the main bundle. The announcement of the draft determination would stress its consultative nature.
37. The board would receive drafts of the whole document and the executive summary for comment (bearing in mind the need for any comments to be made urgently). [Action: PR18 Programme Board] Publication was still anticipated on 12 June.
38. The board noted the update.
Item 13 FEEDBACK FROM COMMITTEES
39. The Audit and Risk Committee and Highways Committee had met and scrutinised the annual report and accounts which had now been signed off. The Highways Committee had similarly considered issues which had been discussed during the meeting.
Item 14 ANY OTHER BUSINESS
40. The board noted their decision, taken in correspondence, to recommend to the Secretary of State a nomination for the Head of the UK Delegation to the Channel Tunnel Intergovernmental Condition.
41. The board noted the committee minutes circulated below the line and the board forward programme. Meetings with NR’s board around the Final determination were still being finalised.
Signed
Stephen Glaister
28 June 2018 **ACTIONS AGREED:**
| From the October Board | Update for the February meeting | |------------------------|---------------------------------| | The board noted that we had not undertaken stakeholder events in London, where many of our key stakeholders were based, and agreed that an annual awayday should be planned at an appropriate point in the calendar | Action: Board secretary – events being considered for later in the year – depending on board agenda |
| From the May board | | |-------------------|------------------| | IP would circulate his recent letter to NR clarifying responsibilities for vegetation management and proper risk assessment of issues arising | Secretariat - completed | | The board asked for more explanation of the apparent significant reduction in reported HAVS | Ian Prosser | | [Graham Richards] reported on the mixed success of the major timetable change implemented on 21 May. The customer team were following up on a press story about guidance to TOC staff on the treatment of limited mobility customers who might delay services – the board asked for a report | --Oral update at the next meeting | | Our correspondence with TOCs on this would be published and John Larkinsson was asked to report on TOC responses. | John Larkinsson/customer team on the June agenda T-12 | | The board noted the update on the three strands of the investigation and the expectation that staff would issue case to answer letters in due course. A further update should be provided at that point. | Rob Plaskitt – June agenda |
**SINGLE ISSUE DELEGATIONS**
| Date exercised/completed | |--------------------------| | The board approved the rights application for services between London Euston and Blackpool from May 2019 to December 2026. Subject to final checks by staff the board delegated John Larkinsson to agree and sign the decision letter. | This letter has not yet been issued pending clarification by the applicant. |
**FORWARD PROGRAMME**
| Date due | |----------| | The board asked for a paper explaining ORR’s system for assessing passenger impact and determining appropriate responses [Stephanie Tobyn] | Customer team: July 2018 | | PR18 NR Incentives, Monitoring And Enforcement In CP6 | Autumn 2018 |
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d2aec9ae60016a006a22fbb31be166a8f42d0362 | Dear Jo
**ORR investigation and monitoring of current informed traveller/T-12 problems**
As you know, in response to the informed traveller and T-12 problems in January 2018, ORR committed to investigate a set of linked issues around:
- *What we do in the very short-term about Network Rail’s recovery plan.* We wanted assurance that Network Rail had consulted and thought about passenger and customer impacts in developing its plan, that the plan is deliverable and will recover T-12 in a reasonable time;
- *Passenger information;* ensuring the industry is taking all the necessary steps to inform passengers. We have written to train operators about our concerns; and
- *What are the root causes of, and lessons to learn from, the T-12 issues;* whether TOCs and Network Rail are complying with their obligations.
We have been progressing work on these three strands, engaging with Network Rail, industry and funders over the past few months. Thank you for Network Rail’s co-operation and engagement to date in this process.
**Recovery Plan**
Network Rail advised us in April and again this week that it is confident the recovery plan is on schedule and that it is doing what it said it would do. However, we note the fragility of the plan and its lack of contingency. Its success depends on Network Rail and the industry working together to recover T-12 by January 2019.
There are issues with some TOCs achieving their deadlines, so T-6 and T-7 offers were not made in line with the plan for every operator. We would especially like to understand the specific issues relating to GTR and GWR and how you are dealing with them. We recognise that the ongoing T-12 issues could have an impact on the parallel processes to produce timetables for December 2018 and May 2019. We are pleased to hear that Network Rail is responding to our suggestion to clarify what the key project, franchise, rolling stock and other assumptions are that underpin each timetable, and is setting up a process to assure those assumptions. This should help inform discussions about risks to implementing those timetables and how they can be managed.
We have however been concerned by the time taken to put appropriate monitoring and reporting processes in place. We have therefore requested a regular high-level view of progress against the recovery plan milestones, including risks, to be provided to us in addition to the detailed weekly updates. This will be accompanied by 4-weekly joint meetings to better understand these updates. We are setting these up to be the week after each recovery plan milestone is supposed to be reached (i.e. the weeks after T-7, T-8 etc are planned to be achieved). Network Rail has agreed to do this. This should also support better reporting internally in Network Rail and to the industry.
We will continue to monitor closely your progress against the recovery plan and your management of the risks to it over the coming months through our agreed monitoring arrangements.
Root causes From our initial review, we have identified particular concerns with:
- Infrastructure Projects (IP) and System Operator (SO) interfaces and their management, both as a potential root cause of the current T-12 problems and as a risk to the recovery plan and future timetables. This includes whether enhancement problems were and are being escalated in a timely way and whether delays impacting the timetable are identified as soon as possible and in sufficient time for the SO to react;
- Whether prioritisation decisions, such as whether to delay an enhancement, are being taken with passengers and a whole system perspective in mind; and
- The management of late notice timetable changes and their impact on services and the availability of passenger information.
We are therefore advising Network Rail that the above issues are now the subject of a formal licence compliance investigation which we will be carrying out in line with our economic enforcement policy procedures. The outcomes of this formal investigation could result in a finding that Network Rail was, and / or is currently, in breach of its licence and if appropriate, we could decide to take formal enforcement action. An investigation terms of reference is attached.
As part of this work, we are also considering the implications of existing or planned work streams. For example, our own review of the Network Rail SO Strategic Business Plan for CP6 and the KMPG review commissioned jointly by Network Rail and DfT into infrastructure enhancements. We also expect there will be lessons to learn in relation to aspects such as communication and resources.
We are grateful for your offer of further help to our investigation and our teams met earlier today to discuss the issues further. We identified additional helpful material, which your team undertook to provide to us.
We would welcome any further information Network Rail would like us to consider as part of our formal investigation by midday on Monday 4 June 2018.
Yours sincerely
John Larkinson Annex: Terms of reference for a further investigation into the issues affecting Network Rail timetabling and its planning and delivery of infrastructure projects
Purpose
To establish whether Network Rail is doing everything reasonably practicable to meet its licence obligations under its’ Network Licence; with particular reference to timetabling and the planning and delivery of infrastructure projects – including assessing whether there are any systemic weaknesses.
Scope
Based on initial analysis of the evidence gathered so far, ORR is particularly interested in the following areas (although the investigation may be wider depending on the evidence that emerges):
a) Infrastructure projects (IP) and System Operator (SO) interfaces and their management, both as a potential root cause of the current T-12 problems and as a risk to the recovery plan and future timetables.
- Particularly whether enhancement problems were and are being escalated in a timely way and whether delays impacting the timetable are identified as soon as possible and managed effectively.
- Network Rail’s timetabling governance process and the impact of and interface with IP, particularly with regard to major projects such as NWEP phase 4
b) Whether prioritisation decisions, such as whether to delay an enhancement, were/are being taken with passengers and a whole system perspective in mind.
c) The management of late notice timetable changes.
Methodology
ORR will use evidence gathered from its current monitoring and informal investigation to date and any further information provided to us in the course of this investigation including by Network Rail, operators, funders and other parties to assess:
- Whether there are any mitigating factors which should be considered which have lead to the current issues;
- Whether there are any systemic issues; and
- The steps, Network Rail has taken or is taking to address the issues and make improvements and recover; Investigation team
This investigation is led by John Larkinson as director, using the existing project team for Informed Traveller/T-12 issues.
How the investigation will be conducted
In carrying out its investigation ORR expects to draw upon information and reviews already carried out internally as part of its usual regulatory roles as well as any new information relevant parties provide to us during the course of this investigation. The review will engage primarily with Network Rail, as well as affected operators and funders. This will be a focused investigation with a view to completion by the end of June 2018.
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fc563b93777bef2043beeaa26c4fd012c25d4d74 | Dear Dan,
**ORR investigation and monitoring of current informed traveller/T-12 problems**
As you are aware, in response to the informed traveller and T-12 problems we are investigating a set of linked issues. In particular we are focusing on root causes to the T-12 issues, informed passenger information provided by TOCs and the development and delivery of the T-12 recovery plan.
We have been progressing work on these three strands, engaging with Network Rail, industry and funders over the past few months. This letter covers the root causes part of our work.
**Root causes**
Thank you to those organisations who provided information to us as part of our initial information gathering process in March.
From our initial review, we have identified particular concerns with:
- Infrastructure Projects (IP) and System Operator (SO) interfaces and their management, both as a potential root cause of the current T-12 problems and as a risk to the recovery plan and future timetables;
- whether prioritisation decisions, such as whether to delay an enhancement, are being taken with passengers and a whole system perspective in mind; and
- the management of late notice timetable changes and their impact on services and the availability of passenger information.
We have therefore started a formal licence compliance investigation, which we will be carrying out in line with our economic enforcement policy procedures. As part of this investigation we will use the evidence gathered from our own monitoring, from Network Rail and from industry to assess whether there are any mitigating factors, whether issues are a one-off or a symptom of a wider problem, and the steps Network Rail has taken or is taking to address issues and make improvements.
We welcome any further information you would like us to consider as relevant to this investigation. We would ask for any written submissions by 4pm on Friday 8 June 2018. We are not asking you to repeat points already made to us.
Any information you provide to us may be used in our final evidence report which will be published after our investigation has concluded.
Yours sincerely,
John Larkinson Director, Railway Markets & Economics
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a001b38e8bfe3f5647fe2a503980b66b629503aa | Dear Rail Industry representatives,
**ORR investigation and monitoring of current informed traveller/T-12 problems**
As you are aware, in response to the informed traveller and T-12 problems we are investigating a set of linked issues. In particular we are focusing on root causes to the T-12 issues, informed passenger information provided by TOCs and the development and delivery of the T-12 recovery plan.
We have been progressing work on these three strands, engaging with Network Rail, industry and funders over the past few months. This letter covers the root causes part of our work.
**Root causes**
Thank you to those organisations who provided information to us as part of our initial information gathering process in March.
From our initial review, we have identified particular concerns with:
- Infrastructure Projects (IP) and System Operator (SO) interfaces and their management, both as a potential root cause of the current T-12 problems and as a risk to the recovery plan and future timetables;
- whether prioritisation decisions, such as whether to delay an enhancement, are being taken with passengers and a whole system perspective in mind; and
- the management of late notice timetable changes and their impact on services and the availability of passenger information.
We have therefore started a formal licence compliance investigation, which we will be carrying out in line with our economic enforcement policy procedures. As part of this investigation we will use the evidence gathered from our own monitoring, from Network Rail and from industry to assess whether there are any mitigating factors, whether issues are a one-off or a symptom of a wider problem, and the steps Network Rail has taken or is taking to address issues and make improvements.
We welcome any further information you would like us to consider as relevant to this investigation. We would ask for any written submissions by 4pm on Friday 8 June 2018. We are not asking you to repeat points already made to us.
Any information you provide to us may be used in our final evidence report which will be published after our investigation has concluded.
Yours sincerely,
John Larkinson Director, Railway Markets & Economics
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322b5efa5a3d322024916ee374986acc82bd2dbb | Dear David,
**ORR investigation and monitoring of current informed traveller/T-12 problems**
As you are aware, in response to the informed traveller and T-12 problems we are investigating a set of linked issues. In particular we are focusing on root causes to the T-12 issues, informed passenger information provided by TOCs and the development and delivery of the T-12 recovery plan.
We have been progressing work on these three strands, engaging with Network Rail, industry and funders over the past few months. This letter covers the root causes part of our work.
**Root causes**
Thank you to those organisations who provided information to us as part of our initial information gathering process in March.
From our initial review, we have identified particular concerns with:
- Infrastructure Projects (IP) and System Operator (SO) interfaces and their management, both as a potential root cause of the current T-12 problems and as a risk to the recovery plan and future timetables;
- whether prioritisation decisions, such as whether to delay an enhancement, are being taken with passengers and a whole system perspective in mind; and
- the management of late notice timetable changes and their impact on services and the availability of passenger information.
We have therefore started a formal licence compliance investigation, which we will be carrying out in line with our economic enforcement policy procedures. As part of this investigation we will use the evidence gathered from our own monitoring, from Network Rail and from industry to assess whether there are any mitigating factors, whether issues are a one-off or a symptom of a wider problem, and the steps Network Rail has taken or is taking to address issues and make improvements.
We welcome any further information you would like us to consider as relevant to this investigation. We would ask for any written submissions by 4pm on Friday 8 June 2018. We are not asking you to repeat points already made to us.
Any information you provide to us may be used in our final evidence report which will be published after our investigation has concluded.
Yours sincerely,
John Larkinson Director, Railway Markets & Economics
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ed34b997dfab51f405dde03ca94ce435f5664490 | Dear Guy,
**ORR investigation and monitoring of current informed traveller/T-12 problems**
As you are aware, in response to the informed traveller and T-12 problems we are investigating a set of linked issues. In particular we are focusing on root causes to the T-12 issues, informed passenger information provided by TOCs and the development and delivery of the T-12 recovery plan.
We have been progressing work on these three strands, engaging with Network Rail, industry and funders over the past few months. This letter covers the root causes part of our work.
**Root causes**
Thank you to those organisations who provided information to us as part of our initial information gathering process in March.
From our initial review, we have identified particular concerns with:
- Infrastructure Projects (IP) and System Operator (SO) interfaces and their management, both as a potential root cause of the current T-12 problems and as a risk to the recovery plan and future timetables;
- whether prioritisation decisions, such as whether to delay an enhancement, are being taken with passengers and a whole system perspective in mind; and
- the management of late notice timetable changes and their impact on services and the availability of passenger information.
We have therefore started a formal licence compliance investigation, which we will be carrying out in line with our economic enforcement policy procedures. As part of this investigation we will use the evidence gathered from our own monitoring, from Network Rail and from industry to assess whether there are any mitigating factors, whether issues are a one-off or a symptom of a wider problem, and the steps Network Rail has taken or is taking to address issues and make improvements.
We welcome any further information you would like us to consider as relevant to this investigation. We would ask for any written submissions by 4pm on Friday 8 June 2018. We are not asking you to repeat points already made to us.
Any information you provide to us may be used in our final evidence report which will be published after our investigation has concluded.
Yours sincerely,
John Larkinson Director, Railway Markets & Economics
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06b4dccbff5a100f666dd95484e0449bc2c721bc | Dear John,
**ORR investigation and monitoring of current informed traveller/T-12 problems**
As you are aware, in response to the informed traveller and T-12 problems we are investigating a set of linked issues. In particular we are focusing on root causes to the T-12 issues, informed passenger information provided by TOCs and the development and delivery of the T-12 recovery plan.
We have been progressing work on these three strands, engaging with Network Rail, industry and funders over the past few months. This letter covers the root causes part of our work.
**Root causes**
Thank you to those organisations who provided information to us as part of our initial information gathering process in March.
From our initial review, we have identified particular concerns with:
- Infrastructure Projects (IP) and System Operator (SO) interfaces and their management, both as a potential root cause of the current T-12 problems and as a risk to the recovery plan and future timetables;
- whether prioritisation decisions, such as whether to delay an enhancement, are being taken with passengers and a whole system perspective in mind; and
- the management of late notice timetable changes and their impact on services and the availability of passenger information.
We have therefore started a formal licence compliance investigation, which we will be carrying out in line with our economic enforcement policy procedures. As part of this investigation we will use the evidence gathered from our own monitoring, from Network Rail and from industry to assess whether there are any mitigating factors, whether issues are a one-off or a symptom of a wider problem, and the steps Network Rail has taken or is taking to address issues and make improvements.
We welcome any further information you would like us to consider as relevant to this investigation. We would ask for any written submissions by 4pm on Friday 8 June 2018. We are not asking you to repeat points already made to us.
Any information you provide to us may be used in our final evidence report which will be published after our investigation has concluded.
Yours sincerely,
John Larkinson Director, Railway Markets & Economics
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b33c228e281ab057164fa98a131ceb99d7550b8e | Dear Simon,
**ORR investigation and monitoring of current informed traveller/T-12 problems**
As you are aware, in response to the informed traveller and T-12 problems we are investigating a set of linked issues. In particular we are focusing on root causes to the T-12 issues, informed passenger information provided by TOCs and the development and delivery of the T-12 recovery plan.
We have been progressing work on these three strands, engaging with Network Rail, industry and funders over the past few months. This letter covers the root causes part of our work.
**Root causes**
Thank you to those organisations who provided information to us as part of our initial information gathering process in March.
From our initial review, we have identified particular concerns with:
- Infrastructure Projects (IP) and System Operator (SO) interfaces and their management, both as a potential root cause of the current T-12 problems and as a risk to the recovery plan and future timetables;
- whether prioritisation decisions, such as whether to delay an enhancement, are being taken with passengers and a whole system perspective in mind; and
- the management of late notice timetable changes and their impact on services and the availability of passenger information.
We have therefore started a formal licence compliance investigation, which we will be carrying out in line with our economic enforcement policy procedures. As part of this investigation we will use the evidence gathered from our own monitoring, from Network Rail and from industry to assess whether there are any mitigating factors, whether issues are a one-off or a symptom of a wider problem, and the steps Network Rail has taken or is taking to address issues and make improvements.
We welcome any further information you would like us to consider as relevant to this investigation. We would ask for any written submissions by 4pm on Friday 8 June 2018. We are not asking you to repeat points already made to us.
Any information you provide to us may be used in our final evidence report which will be published after our investigation has concluded.
Yours sincerely,
John Larkinson Director, Railway Markets & Economics
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1d5d7fe517d36074792f2144b3742d78ef25e9a2 | 6 June 2018
Jane Kerr Planning & Access Manager Infrastructure Systems & Performance Translink Group 22 Great Victoria Street Belfast BT2 7LX
Dear Jane,
Northern Ireland Railways Company Limited (NIR): Network Statement 2019
I am writing to conclude ORR’s review of NIR’s network statement, as required of us under The Railways Infrastructure (Access, Management and Licensing of Railway Undertakings) Regulations (Northern Ireland) 2016 (the Regulations).
We have reviewed your published Network Statement 2019, dated 30 March 2018, having already commented in detail on the provisional version you sent to us on 21 December 2017. I should point out that, despite our input, ORR’s roles under regulation 32(1), 32(2) and 34(1) means that we cannot endorse or approve the publication.
Thank you for your constructive engagement again this year. We note that although you have addressed some of our comments, there are still some key areas where we consider that your published version lacks sufficient information to be fully compliant with the Regulations. For example:
- **Charging** (section 6 of the network statement) - the requirement to include details of charging principles and tariffs is required under regulation 13(4)(c);
- **Service facilities** (section 3.6 of the network statement) - details on charges for the use of service facilities, as required under regulation 13(4)(d);
- **Previous utilisation of capacity** - as required under regulation 13(4)(j)(xi). This is missing from the network statement;
- **Model framework agreement** - as required under regulation 13(4)(o). This is also missing from the network statement; and
- **Publication in two European languages** - required under regulation 13(8).
The obligations imposed by the Regulations are legal requirements, not regulatory burdens imposed by ORR, and NIR would need to resource additional activity to develop the network statement into full compliance. We are taking a pragmatic and proportionate approach to our controlling role and we are not aware of any competitive situation in Northern Ireland to indicate that we should direct you to make further changes to your 2019 network statement. However, we need to be clear to what extent you will update your next network statement to meet the requirements of the Regulations. To help with this, please provide us, by 31 July 2018, a list of the sections you will update.
I am copying this letter to Clive Bradberry. In line with our commitment to transparency, we will place a copy of this letter on our website.
Yours sincerely,
Les Waters
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290fcab67b8e178267e8b772af6640e18a89161b | Dear John
**ORR investigation and monitoring of current informed traveller/T-12 issues**
I write in response to your letter of 25 May 2018 in relation to the above issue. Your letter seeks any further information that we would like ORR to consider as part of its ongoing investigation. We are grateful to ORR for the extension of time that was given to enable us to respond to your letter.
As you will be aware, Network Rail and ORR colleagues have already had extensive dialogue regarding the current informed traveller issues, the steps that both Network Rail and the wider industry are taking to resolve this matter, and the leadership role that Network Rail has taken in defining and consulting on the associated recovery plan. Our response follows the same structure as your original letter to maintain clarity and alignment with the particular concerns that you highlight.
**Recovery plan**
As we have previously discussed, the causes of our current inability to provide 12 weeks advance notice of the amended timetable are complex and include factors for which both Network Rail and the wider industry are accountable. It is clear that the deferral of the North West Electrification Programme (NWEPP) Phase 4 has had a very significant impact on our ability to adhere to T-12 timescales. We recognise that we need to get back to T-12 adherence as soon as possible and we fully acknowledge the impact that this issue has had on our freight end users and the travelling public, who rightly demand a reliable timetable to enable them to plan their transport arrangements with a reasonable degree of certainty.
In conjunction with the industry, Network Rail has established a whole industry recovery plan. We have put in place the necessary programme management arrangements and industry stakeholder engagement plans to assure ourselves and industry stakeholders that delivery of the recovery plan remains on target.
You are correct that the plan is fragile, and its success will depend on both train operators and our own Capacity Planning team. Your team will have a good understanding of the complexities of the planning processes, systems and data that mean it is unrealistic for us to procure agency staff or equivalent to address the issue any more quickly than we are currently targeting. Operators and our own train planning teams have committed to absorb a higher level of work for most of this year, effectively undertaking five weeks planning work every four weeks in order to recover T-12, for the timetable that runs in January 2019. We are using industry planning resources to best effect, and have encouraged use of overtime within our own organisation. We have also made it clear that we will work with train operators to fund their overtime costs associated with delivery of the recovery plan. We continue to believe that our plan is the most credible plan to recover T-12 in a controlled and systematic manner.
You have asked for a specific understanding of the issues that Govia Thameslink Railway (GTR) and Great Western Railway (GWR) are having in meeting the recovery plan bid deadlines. From Network Rail’s perspective, when the national recovery plan was first drafted in February, GTR made it clear that they would not be in a position to comply with the bidding timescales set out in the national recovery plan. This was because it already had begun working up a recovery plan for GTR before the ‘national’ plans had been agreed as a result of pre-existing challenges with meeting informed traveller timescales for GTR. These existing challenges were around limited resource levels and the unavailability of the May 2018 timetable at the time.
GTR’s individual plan, which was first submitted at the end of February, matched the national recovery plan by the end of the process (back to T-12 in January 2019). Due to this, GTR has been measured against its own individual plan from the start of the national recovery plan. GTR has struggled to comply with its individual recovery plan and has submitted several revised recovery plans over the past weeks. We are working with GTR to understand the problems it is having meeting the bidding deadlines and to identify ways in which we can help resolve current issues. We have recruited an additional experienced resource to strengthen our engagement with GTR.
GWR non-compliance with normal T-12 informed traveller timescales has been an issue from March 2017 when it first began consistently missing T-18 bidding timescales. For a number of months, Network Rail was able to absorb the late bids from GWR and still meet T-12 publication deadlines.
In July 2017, Network Rail put a recovery plan in place with GWR when its late bidding began to impact on the overall delivery of the T-12 weekly amended timetable. This plan was created collaboratively with GWR and considered to be achievable, and was also endorsed by the Western Route Supervisory Board. GWR’s compliance with the recovery plan fluctuated over the coming months and a revised plan was jointly agreed and put in place in early 2018. The main reasons causing difficulty for GWR to meet the recovery plan were late changes to Network Rail’s engineering access plan and GWR resourcing problems. When the national recovery plan was put in place in early March 2018, it was broadly in line with the recovery plan GWR already had in place. GWR has only been able to meet the national recovery plan bidding deadlines for three out of 13 weeks so far. However, over the last couple of months, we have introduced a late change process to provide more control around requests for late change to the engineering access plan being submitted. Since this process has been introduced, we have seen a 65 per cent reduction in the number of late changes being submitted at a national level. GWR has recently bolstered its resource with the addition of five planners and we have worked together to put a plan in place which should enable GWR to meet the national recovery plan bidding deadlines from Week 25 (29 June 2018) onwards.
You may also wish to speak to GTR and GWR to understand, from their perspective, the issues they are having in meeting the recovery plan bid deadlines.
In February, we established a Strategic Crisis Management Team (SCMT) led by Paul McMahon, Managing Director, Freight and National Passenger Operators, to address the emerging timetable issues. The work to clarify key project, franchise and rolling stock assumptions for each timetable was something which Network Rail started doing when we formed the SCMT to establish control over the Network Rail response to the informed traveller issues and pre-dates any specific conversation with ORR. My team shared the schedule of assumptions for May 2019 with ORR’s team as a result of pre-existing work and we agree that our ongoing assurance work in relation to these assumptions will help identify and manage the risks to implementing this timetable.
We are, of course, very happy to provide ORR with a regular view of progress against the recovery plan, and for such face to face meetings as you may consider helpful. I have been receiving relevant and timely reports from Chris Rowley, Director of Capacity Planning, throughout the last three months and progress on the delivery of the plan is being reported to the Route businesses at their weekly visual management meetings. The delivery of our recovery plan is also the subject of ongoing discussion at our Executive Committee and Board.
Root causes of T-12 issues
Within your letter you highlight three particular concerns. Our response is set out below.
Infrastructure Projects (IP) and System Operator (SO) interfaces and their management
The decision making process around the deferral of the NWEP Phase 4 followed normal working practices from the IP deliverer to the Sponsor team, and then through to the North of England Programme Board (Programme Board), at which customers and stakeholders are represented, and is chaired by DFT’s Senior Responsible Officer, Brian Etheridge.
The North of England Programme, of which NWEP is a part, reported known risks and mitigations periodically through its recognised governance, with oversight from multiple stakeholders including DfT, ORR and Rail North. The SO was involved in impact assessments and decision making from both a strategic and capacity planning perspective, making the likely consequences of deferral clear to the Programme Board.
The first key issue surrounded the Moses Gate wall collapse which compromised the volume delivery during the summer 2017 blockade. Risks to the programme completion were flagged as a consequence of this event.
The second key issue was the previously identified issue of ground conditions and the implementation of a revised piling methodology which was devised to mitigate these concerns. Network Rail reasonably believed, at that time, the slippage was recoverable on the basis that our own engineering team (with the support of academia and design consultancies) had developed a workable solution. Nevertheless, the risks to delivery continued to be flagged and monitored.
Towards the latter part of 2017 it became clear that NWEP Phase 4 was falling behind schedule. However planned activity over the Christmas 2017 blockade was recognised as being key to providing confidence in delivery of the remaining works. Clear achievable targets were set with a pre-agreed position that an industry decision would be taken on 5 January 2018 (at a specially convened Programme Board) based on the volumes achieved. Whilst most of the required volumes were delivered (indeed in many cases there was more progress than had been planned) delivery of the bases fell well short of plan. As a consequence, recovering delivery of NWEP Phase 4 would not be achievable without an extended blockade (which would have had a considerable impact on passengers and freight end users). Therefore the decision to defer completion of the works was taken.
Notwithstanding the significant impact of NWEP Phase 4, there are equally relevant issues to be regarded such as the interface between the SO and operators and the interface between SO and franchising authorities. These interfaces have impacted timetable planning assumptions and dependencies such as rolling stock cascades and franchise driven timetable changes.
It is for this reason that, as set out above, we have already begun to establish a wider set of assurance reviews to assess all future timetable dependencies and assumptions. This work is already in progress and will be concluded for the upcoming working timetable changes through the SCMT work. Longer term consideration has to be given to how the whole industry, including Network Rail, train operators and wider stakeholders, better share the status and risks of associated timetable planning assumptions and dependencies, beyond current contractual commitments. There is now National Task Force support to establish a whole industry Project Management Office.
There were clearly a number of wider industry issues at play which compounded the T-12 issues including a late decision to introduce a phased timetable on Thameslink by the Industry Readiness Board outside of normal timetable development timescales, late notice by Abellio ScotRail of the new fleet of Class 385 trains being unavailable for the May timetable and reasons (including late changes to Network Rail’s engineering access plan and train operator planning resourcing) which led to a number of passenger operators failing to provide amended timetable bids in accordance with their Network Code obligations.
Prioritisation decision making
With regard to your concern as to whether decisions such as the delay of enhancements are being taken with passengers and a whole system perspective in mind, the decision to defer the NWEP Phase 4 programme was made with the passenger specifically in mind. Whilst it may have been possible to recover NWEP Phase 4 to timescales for the May 2018 timetable commencement, this would have required an extended blockade, requiring thousands of passengers to be subject to rail replacement services into the centre of Manchester. Following detailed review at the specially convened Programme Board, the consequence of an extended blockade was believed to be too great on both passengers themselves, and also on the transport infrastructure of the City of Manchester with the volume of buses that would have been required for this extended period of time. Management of late notice timetable changes
A robust engineering access late change process has been established since the start of the informed traveller recovery plan. Over the first two periods of use, the levels of change have reduced by some 65 per cent compared to the previous year. Twice weekly teleconferences are attended by IP, route businesses and my SO team and are designed to minimise the number of late notice timetable changes and the resulting impact on passengers.
Summary
In summary, whilst we recognise that the industry is failing to adhere to informed traveller timescales, we believe that we have the right plan to address this situation as soon as is practically possible.
Following the challenging implementation of the timetable, the remit of the SCMT has been expanded and it now has three primary objectives:
1. To ensure route teams have everything required to support the short-term recovery plans from GTR and Northern.
2. To deliver a successful return to T-12 ('informed traveller').
3. To assess options around December 2018 and May 2019 timetable implementation, and establish KPIs for delivery (Network Rail and train operators).
We recognise that passengers served by the Northern and GTR franchises, in particular, have not had the services that were promised by the industry in the May timetable change and as a result the whole industry is, quite understandably, facing significant criticism. We acknowledge that on 4 June the Secretary of State for Transport announced that ORR will undertake an inquiry into May 2018 timetable implementation. The output of this inquiry may identify important lessons that can be applied in advance of future major timetable changes and we therefore stand ready to assist ORR in any way that may be helpful as you complete your inquiry.
Should you require further information or wish to discuss further at a meeting, please do not hesitate to let me know.
I am copying this letter to Francis Paonessa, Managing Director, Infrastructure Projects and Paul McMahon, Managing Director, Freight & National Passenger Operators at Network Rail.
Yours sincerely
Jo Kaye Managing Director, System Operator
cc Francis Paonessa, Managing Director, Infrastructure Projects cc Paul McMahon, Managing Director, Freight & National Passenger Operators
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1a9e33e9f390d3828e44227e0a9cec1f2ffae964 | Dear Colleague,
Compliance with condition 4 of the Passenger Licence and GB Statement of National Regulatory Provisions: Passenger, and Consumer law
I refer to my letters of 23 February 2018¹ and 8 May 2018 regarding compliance with Condition 4 of the Passenger Licence and GB Statement of National Regulatory Provisions: Passenger (Information to Passengers)² and the Consumer Protection (from Unfair Trading) Regulations 2008 (the ‘CPRs’).
In your reply to our 8 May 2018 letter you were asked to identify any blockers that may be preventing you from giving passengers the information that they need to plan and make their journey with a reasonable degree of assurance. Some operators told us that this is due to a lack of functionality on the Trainline ticket engine that you use on your site. We are therefore writing to all nine operators that use this service³ and separately to the Trainline.
We remain concerned that passengers who choose to plan a journey or purchase a ticket using your website will be less informed than those using National Rail Enquiries (NRE). This is because the messaging about changes to services or uncertainty in the timetable is not being shown on your website.
¹ Letters may be downloaded from the “publications and updates” section at the bottom of the page on the ORR website at http://orr.gov.uk/rail/consumers/licence-obligations-to-consumers/passenger-information-during-disruption ² http://orr.gov.uk/\_\_data/assets/pdf_file/0011/2234/lic-passlic.pdf ³ Nine operators use a Trainline ticket engine. They are Greater Anglia, ScotRail, West Midlands Trains, East Midlands Trains, Virgin Trains, Arriva Trains Wales, CrossCountry, Grand Central and Northern This next step of our work narrows the focus to the three principle concerns where we have noted that there remain significant gaps in information provision:
1. the majority of train operators do not put the warnings (icons and messages) that are shown on the NRE website on their website or apps;
2. where NRE flags trains as not being confirmed to run, the message is not shown on train operator ticket engines which generally have no cautionary messages at all;
3. where train times have changed since the ticket was booked, train operators are not contacting passengers to alert them to the new journey times or refund options
We need to be assured that all reasonably practicable steps are being taken to provide passengers with appropriate, accurate and timely information to enable them to plan and make their journeys with a reasonable degree of assurance, as we consider that a lack of messaging on ticket engines is unacceptable. Where changes are planned we need to have evidence of a firm commitment and a delivery date that is within a reasonable timescale.
**Next steps**
It is important that we meet with you urgently to discuss these three concerns with you. This can be in the form of a face-to-face meeting or a call.
Information provided in reply to our letters and in the discussions will be considered with the results of our monitoring of websites(^4) to enable us to take a decision on whether to commence our formal enforcement process(^5).
I would be grateful if you could confirm receipt of this letter by return e-mail indicating your availability to meet based on the options given in the covering e-mail. We will be placing a copy of this letter and any further correspondence regarding this issue, on our website(^6).
Yours sincerely
John Larkin
______________________________________________________________________
(^4) [http://orr.gov.uk/\_\_data/assets/pdf_file/0003/27804/informed-traveller-investigation-2018-05-25.pdf](http://orr.gov.uk/__data/assets/pdf_file/0003/27804/informed-traveller-investigation-2018-05-25.pdf)
(^5) [http://orr.gov.uk/rail/rail-enforcement-powers](http://orr.gov.uk/rail/rail-enforcement-powers)
(^6) Information about our Informed Traveller investigation is on the ORR website at [http://orr.gov.uk/rail/consumers/rail-timetable-issues](http://orr.gov.uk/rail/consumers/rail-timetable-issues). Strand 2 is the part of the investigation looking at information provided to passengers
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7ed6e4e20d92407a1b71c199f0191bc8de1bb26c | Dear Clare,
Provision of information to passengers when booking tickets
On 29 March 2018, John Larkinson wrote¹ to third party retailers to remind you of ORR’s role as a designated enforcer under Part 8 of the Enterprise Act 2002, and our powers regarding rail passengers and the companies from whom they purchase services. In this respect Trainline is a third party retailer, utilising a branded web, app and call centre channel. Industry figures from 2016/17 indicate that Trainline was the largest single online retailer for rail tickets, accounting for almost half of all tickets issued.
It is important that all parties, including third-party retailers, ensure that they are providing consumers with the information that is material to their decision for example, to buy a ticket or exercise their rights, and do so in a way that is clear, unambiguous, and timely. In this context, it is important that we meet with you urgently to discuss your online sales process and the lack of warning information (icons and messages) that are shown when passengers use the National Rail Enquiries (NRE) website. This can be in the form of a face-to-face meeting or call.
Separately we understand that Trainline is also the supplier of “white label” website Ticket Issuing Systems (webTIS), mobile web and mobile app services to nine train operators. We have recently sent similar letters to each train operator using a Trainline white label product, also requesting further discussion with them on key aspects of their online sales process. Many of these operators have referred to Trainline as their supplier in this area and we expect they will wish to engage you in further discussion regarding the issues that we are raising with them.
¹ [http://orr.gov.uk/\_\_data/assets/pdf_file/0019/27361/compliance-with-consumer-law-regarding-providing-information-to-passengers-2018-03-29.pdf](http://orr.gov.uk/__data/assets/pdf_file/0019/27361/compliance-with-consumer-law-regarding-providing-information-to-passengers-2018-03-29.pdf) Our powers enable us to act where there is a breach of consumer protection laws having an adverse impact on passengers. A key set of rules are The Consumer Protection from Unfair Trading Regulations 2008 (CPRs). These prohibit unfair, misleading, and aggressive commercial practices. It is important to note that obligations under the CPR’s apply not only to train operating companies but also to companies who are third-party retailers of tickets. For information, our approach to enforcing general consumer law in services relating to railways is described in more detail on our website².
We need to be assured that passengers are being provided with appropriate, accurate and timely information to enable them to plan and make their journeys with a reasonable degree of assurance. In this regard, we consider that a lack of messaging on ticket engines is unacceptable. Where changes are planned to your systems we need to have evidence of a firm commitment and a delivery date that is within a reasonable timescale.
Information provided in reply to our letters and in the discussions will be considered alongside the results of our monitoring of websites when we take a decision on whether to commence our formal enforcement process³.
Next steps
I would be grateful if you could confirm receipt of this letter by return e-mail indicating your availability to meet based on the options given in the covering e-mail. We will be placing a copy of this letter and any further correspondence regarding this issue, on our website⁴.
Yours sincerely
Stephanie Tobyn
² [http://orr.gov.uk/\_\_data/assets/pdf_file/0017/5552/guidance_on_our_consumer_law_role_310310.pdf](http://orr.gov.uk/__data/assets/pdf_file/0017/5552/guidance_on_our_consumer_law_role_310310.pdf) ³ [http://orr.gov.uk/rail/rail-enforcement-powers](http://orr.gov.uk/rail/rail-enforcement-powers) ⁴ Information about our Informed Traveller investigation is on the ORR website at [http://orr.gov.uk/rail/consumers/rail-timetable-issues](http://orr.gov.uk/rail/consumers/rail-timetable-issues). Strand 2 is the part of the investigation looking at information provided to passengers
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8f2aa056459b9ccb81f836fa098819a78fd3c796 | Police Recorded Crime and Outcomes: Open Data Tables User Guide
October 2016 Introduction
This document contains information on the content and use of the Home Office Open Data tables for:
1. Police recorded crime
2. Crime outcomes
3. Transferred/cancelled records (formerly ‘no-crimes’)
4. Offences involving knives or sharp instruments
5. Hate crime
Please refer to the corresponding sections in this document for the required information on each set of open data tables.
These tables are designed to have many uses. The Home Office would like to hear from any users who have developed applications for these data tables and any suggestions for future releases.
Crime and Policing Statistics October 2016
[email protected] INTRODUCTION
It is recommended that prior to using these Open Data tables, users read the Office for National Statistics (ONS) User Guide to Crime Statistics (http://www.ons.gov.uk/ons/guide-method/method-quality/specific/crime-statistics-methodology/user-guides/index.html) to familiarise themselves with the context of the data and the scope and limitations of police recorded crime (PRC) statistics as a whole. PRC figures can be considerably affected by changes in recording policy and practice and it is important to consider the impact of such changes when analysing time series based on PRC data or comparing between different areas. In particular, significant changes to recording policy in 2002/03, including the introduction of the National Crime Recording Standard (NCRS), mean that figures are not directly comparable before and after this period. The impact of the 2002/03 and preceding changes varied by crime type, with violent crime particularly affected. These tables only contain data from the period following the introduction of NCRS.
Many of the notes in this section apply to the Open Data for outcomes, transferred and cancelled records, offences involving knives or sharp instruments and hate crime. Additional guidance is also provided for these Open Data tables.
TABLE FORMAT
The main release consists of data tables, covering financial years since 2002/03.
Data are provided in .ods format which can be opened by most spreadsheet software. The data are provided with one financial year per worksheet, which are named accordingly.
In addition to the main tables, two additional reference tables have been included in this release. See the below section on 'Reference data tables' below for more information on these.
DATA TABLE SPECIFICATION
Data tables are laid out in rows and columns. Each row contains a single count of crime, with each column containing information about that count, such as the time period, offence and area that it applies to.
| FINANCIAL YEAR | Possible values | |----------------|-----------------| | Combined with the Financial Quarter column, this identifies the period during which offences took place. Each financial year runs from April to March. |
| FINANCIAL QUARTER | Possible values | |-------------------|-----------------| | Various | | Combined with **Financial Year** column, this identifies the period during which offences took place. Quarter 1 runs from April-June, Quarter 2 from July-September, Quarter 3 from October-December, and Quarter 4 from January-March.
| **FORCE NAME** | Possible values | Various (See reference table) | |----------------|-----------------|-------------------------------| | This column identifies the police force area in which offences took place. The reference table ‘PRC Geog reference table.csv’ shows how these areas map up to regions within England and Wales. |
| **CSP NAME (CSP tables only)** | Possible values | Various (See reference table) | |-------------------------------|-----------------|-------------------------------| | This column identifies the Community Safety Partnership in which offences took place. This is a geographic area within a Police Force, and generally corresponds to Local Authority boundaries. The reference table ‘PRC Geog reference table.csv’ shows how these areas map up to Police Forces and regions within England and Wales. |
| **OFFENCE DESCRIPTION** | Possible values | Various (See reference table) | |-------------------------|-----------------|-------------------------------| | This column provides a description of the offence covered by each **Offence Code** value. |
| **OFFENCE GROUP** | Possible values | Various (See reference table) | |-------------------|-----------------|-------------------------------| | This column identifies the offence group within which the **Offence Code** falls. Each groups also consists of **Offence Sub-groups**, which in turn consist of **Offence Codes**. |
| **OFFENCE SUBGROUP** | Possible values | Various (See reference table) | |----------------------|-----------------|-------------------------------| | This column identifies the offence sub-group within which the **Offence Code** falls. These sub-groups contain **Offence Codes**. |
| **OFFENCE CODE** | Possible values | Various (See reference table) | |------------------|-----------------|-------------------------------| | This column identifies the specific offence code used by the police and the Home Office to classify offences. The reference table ‘Ref-Offence.csv’ shows descriptions of these codes, as well as the offence groups that they map up to. |
| **NUMBER OF OFFENCES** | Possible values | Various (See reference table) | |------------------------|-----------------|-------------------------------| | This column contains the total number of police recorded crimes for the specified **Offence Code**, **CSP Name/Force Name** and time period (**Financial Year** and **Financial Quarter**). | In addition to figures for police force areas, since 2011-12 the PFA open data tables include data for each quarter showing the number of fraud offences centrally recorded by Action Fraud, CIFAS and Financial Fraud UK. These are indicated in the Force Name, Offence Subgroup and Offence Code columns.
**REFERENCE DATA TABLES**
There are two reference data tables included with this release. One of these covers geographic data, while the other covers offence code data.
**GEOGRAPHIC REFERENCE TABLE**
| CSP NAME | Possible values | Various | |----------|-----------------|---------| | | This includes all values in the CSP Name column of the main data tables. |
| FORCE NAME | Possible values | Various | |------------|-----------------|---------| | | This identifies the Police Force Area within which each CSP is located. It includes all values in the Force Name column of the main data tables. |
| REGION | Possible values | Various | |--------|-----------------|---------| | | This identifies the region of England and Wales within which the CSP/police force is located. |
| ONS CODE | Possible values | Various | |----------|-----------------|---------| | | This identifies a unique code, which corresponds to each CSP. |
### OFFENCE REFERENCE TABLE
| OFFENCE CODE | Possible values | Various | |--------------|----------------|---------| | This includes all values in the **Offence Code** column of the main data tables. |
| OFFENCE DESCRIPTION | Possible values | Various | |----------------------|----------------|---------| | This column provides a description of the offence covered by each **Offence Code** value. |
| OLD PRC OFFENCE GROUP | Possible values | Various | |------------------------|----------------|---------| | This column identifies the old (pre-July 2013) offence group within which the **Offence Code** falls. |
| OLD OFFENCE SUB-GROUP | Possible values | Various | |-----------------------|----------------|---------| | This column identifies the old (pre-July 2013) offence sub-group within which the **Offence Code** falls. |
| NEW ONS OFFENCE GROUP | Possible values | Various | |-----------------------|----------------|---------| | This column identifies the new (post-July 2013) offence group within which the **Offence Code** falls. |
| NEW ONS OFFENCE SUB-GROUP | Possible values | Various | |---------------------------|----------------|---------| | This column identifies the new (post-July 2013) offence sub-group within which the **Offence Code** falls. | HOW TO USE PRC OPEN DATA TABLES
At the simplest level, PRC Open Data tables can be used to find PRC figures for certain offences in certain time periods for certain areas. Figures are provided at the police force area (PFA) and Community Safety Partnership (CSP) level.
In order to find the figures that the user is interested in, the user will need to filter or search data across different columns, and potentially sheets if interested in different years.
All of the figures in the tables are additive. In other words, to find figures for offences in a 12 month period for a particular police force, figures for all four quarters of a 12 month period can be summed together. However, if this is done, then users should be cautious when comparing figures which overlap in their coverage. For example, it is not always appropriate to compare the number of crimes in two 12 month periods that are only a quarter apart, as three quarters of the data will be the same. Similarly, when comparing figures for a single CSP with figures for the police force of which it is part, the impact of comparing the CSP with data to which it contributes to should be considered.
Total police recorded crime figures from data presented at CSP level do not necessarily equal national police recorded crime figures presented elsewhere. This is because certain offences (such as those committed at airports) cannot easily be mapped to CSPs, and are therefore excluded from CSP level data. British Transport Police data are also excluded from the CSP level data.
‘Making off without payment’ (offence code 49A) was introduced as a separate offence code in April 2013, having previously been part of code 53B. A back series of data for this offence code is presented in these tables. Revised back data for offence code 49A have been included for the years 2002/03 to 2012/13 to provide a consistent time series. This involves a mixture of actual data provided by police forces, and estimated data.
CALCULATING CRIME RATES
The PRC Open Data tables can be used to calculate crime rates for a PFA or CSP. This is possible by using the tables in combination with the Local Authority population data published by the Office for National Statistics (ONS). These can be found on their Population Estimates page:
www.ons.gov.uk/ons/rel/pop-estimate/population-estimates-for-uk--england-and-wales--scotland-and-northern-ireland/index.html
The ONS also publish rates for the main crime types at CSP level. Rates at PFA level are available in published table P1, which can also be found using the link above in the Police Force Area Data Tables.
Because of the low volume of many crime types, rates are typically calculated per 1,000 population. This involves dividing the total number of crimes for a given area by the total population, and then multiplying by 1,000. ACCURACY OF QUARTERLY DATA AND NEGATIVE FIGURES
Due to the nature of the PRC data, a recorded crime can be un-recorded if it is subsequently transferred or cancelled. Police forces are not required to resubmit data each time a crime record is transferred or cancelled; instead forces will deduct the crime from the cumulative monthly returns that they supply to the Home Office. This means that in some quarters a negative value may be presented in the data. This system was designed to keep the figures accurate at a financial year level, and to reduce the burden on forces. Therefore, the data may not be completely accurate when looking at crimes committed in a specific quarter.
This cumulative collection system can also lead to negative figures for certain quarters when data are broken down to very low levels. This happens when the numbers supplied by the force for a particular code and area in a quarter are less than the previous period. These data are thus mainly designed to be aggregated up to annual figures, and we would not advise analysing by quarter.
In addition to records being transferred or cancelled, there are sometimes other reasons why negative figures can be seen for certain quarters. This is particularly true for fraud offences. Reasons can include the transition from police forces recording fraud offences to Action Fraud doing so, and the creation of a back series of data on 'Making off without payment' offences. Crime outcomes open data
INTRODUCTION
In April 2013, a new outcomes framework was introduced, replacing the detections previously recorded. The move from detections to outcomes was a marked change, with an emphasis on greater transparency on how all crimes recorded by the police are dealt with. The previous focus on detections gave a partial picture of the work police do to investigate and resolve crime, and its narrow focus resulted in the potential for detection targets which risked driving perverse behaviour with respect to crime recording decisions.
The full, broader outcomes framework was introduced in April 2014, and the statistical bulletin “Crime Outcomes in England and Wales 2014/15” published in July 2015 was the first publication based entirely on the full outcomes framework covering all possible eventualities for crimes. Crime outcomes bulletins can be found here: https://www.gov.uk/government/collections/crime-outcomes-in-england-and-wales-statistics
CRIME OUTCOMES OPEN DATA FOR 2014/15 ONWARDS
To coincide with the publication of data on the broader outcomes framework, quarterly open data on crime outcomes have been published since 2014/15. Following consultation with users, open data on outcomes is now updated on a quarterly basis, since October 2015.
Outcomes data are shown in two ways since 2014/15:
- The outcomes assigned to offences recorded in the latest period, i.e. how many resulted in charges, cautions, and so on, by outcome type, offence type and police force area
- The total number of outcomes recorded in the latest period, by outcome type and offence type
The first of these will be revised considerably the quarter following its publication, and further revised each quarter thereafter by a diminishing amount, as more offences from the period are given a final outcome. Previous quarters will also be updated. This constant change will mean that the same open data table is likely to look quite different with each quarterly update, until eventually all offences recorded in a given period will have been given an outcome. By July 2016, 98% of all crimes recorded in 2014/15 had been assigned an outcome and the decision was taken to no longer update those which have not been assigned an outcome by July 2016. We will continue, however, to update these outcomes if forces revise their crime figures (due to cancelling or transferring crimes) so that the total number of crimes match those in the Crime Open Data tables. Any changes to the overall number of crimes will be made in the “Not yet assigned an outcome by July 2016” outcome category.
The number of crimes ‘not yet assigned an outcome’ is derived by subtracting the total number of outcomes assigned to crimes recorded in the quarter from the number of crimes recorded in that quarter. This may occasionally be displayed as a negative number for some crime types. These negative numbers can be due to the force submitting crime and outcomes data at different times. They can also be due to recording errors. The negative numbers should be updated in subsequent quarters. The second of these is equivalent to how outcomes have been presented in previous years. These numbers are also occasionally displayed as a negative number. For this count of outcomes data, negative numbers are a result of forces reclassifying outcomes. Data are submitted on a cumulative basis every month, so a reclassification one month can result in a negative number.
**Outcome Types**
**Outcome 1:** Charge / Summons: A person has been charged or summoned for the crime (irrespective of any subsequent acquittal at Court).
**Outcome 2:** Caution – youths: A youth offender has been cautioned by the police.
**Outcome 3:** Caution – adults: An adult offender has been cautioned by the police.
**Outcome 4:** Taken into Consideration (TIC): The offender admits the crime by way of a formal police interview and asks for it to be taken into consideration by the court. There must be an interview where the suspect has made a clear and reliable admission of the offence and which is corroborated with additional verifiable auditable information connecting the suspect to the crime.
**Outcome 5:** Offender died: The offender has died before proceeding could be initiated.
**Outcome 6:** Penalty Notices for Disorder: A Penalty Notice for Disorder (or other relevant notifiable offence) has been lawfully issued under Section 1 – 11 of the Criminal Justice and Police Act 2001.
**Outcome 7:** Cannabis/Khat Warning: A warning for cannabis or khat possession has been issued in accordance with College of Policing guidance. Note: Khat warnings were introduced from 24 June 2014 and numbers are likely to be small.
**Outcome 8:** Community Resolution: A Community Resolution (with or without formal Restorative Justice) has been applied in accordance with College of Policing guidance.
**Outcome 9:** Not in public interest (CPS): Prosecution not in the public interest (CPS decision). The Crown Prosecution Service (CPS) by virtue of their powers under the Criminal Justice Act 2003 decides not to prosecute or authorise any other formal action.
**Outcome 10:** Not in public interest (Police) (from April 2014): Formal action against the offender is not in the public interest (Police decision).
**Outcome 11:** Prosecution prevented – suspect under age (from April 2014): Prosecution prevented – named suspect identified but is below the age of criminal responsibility.
**Outcome 12:** Prosecution prevented – suspect too ill (from April 2014): Prosecution prevented – Named suspect identified but is too ill (physical or mental health) to prosecute.
**Outcome 13:** Prosecution prevented – victim/key witness dead/too ill (from April 2014): Named suspect identified but victim or key witness is dead or too ill to give evidence
**Outcome 14:** Evidential difficulties: suspect not identified; victim does not support further action (from April 2014): Evidential difficulties victim based – named suspect not identified. The crime is confirmed but the victim declines or is unable to support further police action to identify the offender.
**Outcome 15:** Evidential difficulties (suspect identified; victim supports action) (from April 2014): Evidential difficulties named suspect identified – the crime is confirmed and the victim supports police action but evidential difficulties prevent further action. This includes cases where the suspect has been identified, the victim supports action, the suspect has been circulated as wanted but cannot be traced and the crime is finalised pending further action. Outcome 16: Evidential difficulties: suspect identified; victim does not support further action (from April 2014): Evidential difficulties victim based – named suspect identified. The victim does not support (or has withdrawn support from) police action.
Outcome 17: Prosecution time limit expired (from April 2014): Suspect identified but prosecution time limit has expired (from April 2014).
Outcome 18: Investigation complete – no suspect identified (from April 2014): The crime has been investigated as far as reasonably possible – case closed pending further investigative opportunities becoming available.
Outcome 19: National Fraud Intelligence Bureau filed (NFIB only) (from April 2014): A crime of fraud has been recorded but has not been allocated for investigation because the assessment process at the NFIB has determined there are insufficient lines of enquiry to warrant such dissemination.
Outcome 20: Action undertaken by another body/agency (from April 2015): Further action resulting from the crime report will be undertaken by another body or agency other than the police, subject to the victim (or person acting on their behalf) being made aware of the action being taken. Note: during 2014/15, these were included within outcome 18.
Outcome 21: Not in the public interest – suspect identified (from January 2016): Further investigation resulting from the crime report that could provide evidence sufficient to support formal action being taken against the suspect is not in the public interest – police decision. Note: previously these offences could have received any outcome type.
New outcomes introduced from April 2016:
It is possible for a crime to be recorded and for the suspect to be charged or cautioned but for that charge or caution to be for an offence other than that recorded. The recording standards reflect the law and in reaching charging decisions the Crown Prosecution Service (CPS) set out a range of standards and guidance that both they themselves and the police, in cases where the police are the charging decision makers, must follow. These standards may frequently dictate that an alternative is to be charged to that recorded. For example, an assault may be recorded as a crime of Actual Bodily Harm (because that is the offence in law committed) but the CPS will direct that the offence to be charged is one of Common Assault. Therefore, in April 2016 three new outcomes were introduced on a voluntary basis until they become mandatory in April 2017. These outcomes reflect where the charge/summons (outcome 1A), youth caution (outcome 2A) or adult caution (outcome 3A) relates to an alternative offence to that recorded. These outcomes will, for the time being, continue to be included within outcomes 1, 2 and 3 accordingly. The full range of outcomes is presented in the open data tables. However, the Home Office consulted with users to consider whether some grouping would benefit the presentation of figures and as a result, outcomes are grouped to make presentation easier in some tables and charts within the statistical bulletin and quarterly tables. These are presented in the Outcome Groups Reference Table:
**Outcome Groups Reference Table**
| Outcome Type | Outcome Description | Outcome Group | |--------------|----------------------------------------------------------|----------------------------------------------------| | 1 | Charged/Summoned | Charged/Summoned | | 2 | Caution - youths | Out-of-court (formal) | | 3 | Caution - adults | Out-of-court (formal) | | 4 | Taken into consideration (TIC) | Taken into consideration | | 5 | Offender died | Prosecution prevented or not in the public interest| | 6 | Penalty Notices for Disorder (PND) | Out-of-court (formal) | | 7 | Cannabis/Khat warning | Out-of-court (informal) | | 8 | Community Resolution | Out-of-court (informal) | | 9 | Not in public interest (CPS) | Prosecution prevented or not in the public interest| | 10 | Not in public interest (Police) | Prosecution prevented or not in the public interest| | 11 | Prosecution prevented – suspect under age | Prosecution prevented or not in the public interest| | 12 | Prosecution prevented: suspect too ill | Prosecution prevented or not in the public interest| | 13 | Prosecution prevented: victim/key witness dead/too ill | Prosecution prevented or not in the public interest| | 14 | Evidential difficulties: suspect not identified; victim does not support further action | Evidential difficulties (victim does not support action) | | 15 | Evidential difficulties: suspect identified; victim supports action | Evidential difficulties (suspect identified; victim supports action) | | 16 | Evidential difficulties: suspect identified; victim does not support further action | Evidential difficulties (victim does not support action) | | 17 | Prosecution time limit expired | Prosecution prevented or not in the public interest| | 18 | Investigation complete no suspect identified | Investigation complete no suspect identified | | 20 | Action undertaken by another body/agency | Action undertaken by another body/agency | | 21 | Further investigation to support formal action not in the public interest | Further investigation to support formal action not in the public interest | Data Quality
Given the work involved in amending police force crime recording systems, not all forces were able to supply data on outcomes from April 2014 for the outcome types not covered by the detection types recorded in previous years (outcomes 5, 9-18).
Consequently, some forces’ data do not cover the full year.
Providing data on the outcomes assigned to offences recorded in the latest period was voluntary, so not all police forces have data shown.
For forces providing record level data via the Home Office Data Hub (HODH), it was possible to analyse how crimes recorded in 2014/15 were dealt with by linking individual outcomes with the offence to which they were assigned. As not all forces were able to provide data via the HODH, the Home Office made a voluntary request to all other forces in order to capture these data from as many forces as possible. Monthly data to October to December 2014 (or April to December 2014 if possible) were first requested in February 2015, with monthly data requested on a quarterly basis since then. Therefore each quarter does not necessarily contain these data for all forces.
Forces voluntarily provide their data to the Home Office on different dates which can impact the proportion of crimes which have been assigned an outcome.
These dates will have an impact on the overall proportion of crimes still under investigation and comparability between forces. For example, the proportion of crimes recorded in March 2015 that had been assigned an outcome at the time of submitting data to the Home Office is likely to be smaller for a force that sent their data return in early April 2015 than for a force that provided this in May, as there had been less time for these offences to be investigated and the outcomes to be assigned.
The Ministry of Justice has been working with the Home Office, the Crown Prosecution Service and the National Police Chiefs’ Council to deliver a project to make the use of out-of-court disposals for adult offenders more effective. In November 2014, as part of this project, three police forces (Leicestershire, Staffordshire and West Yorkshire) commenced a 12 month pilot operation of a simplified model of such outcomes (West Yorkshire Police adopted a phased roll out starting in November 2014 and fully operational in January 2015). All three forces, with the agreement of Ministers, voluntarily stopped issuing adult simple cautions (part of outcome 3) and cannabis / khat warnings (outcome 7) and limited their use of penalty notices for disorder (outcome 6), instead using the adult conditional caution (part of outcome 3) and the community resolution (outcome 8). The rules and guidance that apply to conditional cautions and community resolutions have been amended for those three forces to reflect this new approach. These three pilot forces have continued to operate in accordance with the pilot conditions since the pilot ended in November 2015. This needs to be borne in mind when looking at the outcomes data for these three forces, as they will have a smaller proportion of outcomes 6 and 7 and greater proportion of outcome 8 than other forces.
The Home Office receives monthly data on crime, crime outcomes and transferred or cancelled crimes from police forces. These data are quality assured and analysed by Home Office statisticians and any anomalies or errors identified through this process result in a report being returned to the relevant force for validation or correction.
Prior to the publication of crime outcomes a verification exercise is carried out with all forces. The data held by the Home Office are returned to individual forces asking for confirmation that the data accords with that held on their own systems. Again, forces resubmit data if required.
OUTCOMES OPEN DATA TABLES FOR PREVIOUS YEARS (2005/06 TO 2013/14)
Historically, outcome statistics were published on an annual basis, with the statistics published covering the previous financial year.
The full, broader outcomes framework wasn’t introduced until April 2014, and so the outcome types available in the open data tables for previous years are shown below. The outcome data available for the year 2013/14 are based on broadly similar outcome types to those presented in 2012/13. The information below should be considered when drawing comparisons across years, because in several cases there have been changes in outcome recording practices over time. This is particularly true for the “cannabis warning” and “other” categories and so comparisons should be done with caution.
1. Charge/summons
A person has been charged or summoned for the crime (irrespective of any subsequent acquittal at court).
2. Caution
An offender has been cautioned by the police (including conditional cautions) or given a reprimand or warning under the Crime and Disorder Act 1998.
3. Offence taken into consideration (TIC)
The offender admits the crime by way of a PACE compliant interview and asks for it to be taken into consideration by the court.
4. Penalty Notice for Disorder (PND)
The police issue a Penalty Notice for Disorder (PND). Such a notice must be issued in accordance with any operational guidance to the police (e.g. Police Operational Guidance on PNDs issued by the Home Office in March 2005). An outcome is counted if the penalty notice is not contested, is contested but the CPS proceeds with the case, or, in discontinued cases, the dedicated decision maker reviews the case and stands by the original decision.
With effect from 26 January 2009, it became possible for a PND to be given for an offence of cannabis possession. For central reporting purposes any such PNDs were counted as Cannabis Warnings for the period January to March 2009. From April 2009 a system was put in place to correctly record them as PNDs for the relevant offence.
5. Cannabis Warning
A warning for cannabis possession has been issued in accordance with guidance from the Association of Chief Police Officers (ACPO).
Prior to January 2007 this was known as a ‘formal warning for cannabis possession’. From April 2004 information on police formal warnings for cannabis possession started to be collected centrally (prior to this a pilot scheme was run in parts of London). Those aged 18 and over who are caught in simple possession of cannabis can be eligible for a police Cannabis Warning, which would not involve an arrest.
6. Other
These outcomes are those where the offence is counted as dealt with but either no further action was taken against the offender, or the matter has been resolved by the use of a locally based community resolution or the application of Restorative Justice (RJ) techniques. There have been several changes in the outcome recording requirements for police forces over time, and so any comparison of data for this outcome type needs to be considered in this light.
(a) No further action
Prior to April 2007 various reasons were allowed for claiming outcomes where no further action was taken against the offender. These included those where the:
- offender was too ill or mentally disturbed for proceedings to take place;
- complainant or an essential witness was dead;
- victim refused or was unable to give evidence;
- offender was under the age of criminal responsibility;
- police or the CPS decided that it would not be in the public interest to proceed; and
- time limit of six months for commencing prosecution had been exceeded.
From April 2007 onwards, there were only two ways in which outcomes involving no further action could be claimed:
- where the offender dies before proceedings could be initiated or completed;
- where the CPS decides not to prosecute (by virtue of its powers under the Criminal Justice Act 2003).
Additionally, the use of outcomes involving no further action was restricted to ‘indictable only’ offences (those offences which must be tried at Crown Court).
(b) By local resolution
A special arrangement has been in place since 2008/09 to allow eight forces piloting Youth Restorative Disposals (YRDs) to record their disposals under this category. Youth Restorative Disposals (YRDs) allow operational officers to dispose of low-level crime and neighbourhood disorder where it is not considered to be in the public interest to prosecute. The process involves a meeting between the offender and the victim, an apology and may also include additional action to right the wrong caused (e.g. a form of community payback).
During 2011/12 and 2012/13, some forces (a small number in 2011/12 and around half in 2012/13) voluntarily submitted additional data on crimes dealt with by a community resolution. This included cases of Restorative Justice (RJ). RJ includes formal action, such as the Youth Restorative Disposal, administered by trained practitioners, as well as less formal community-based resolutions where the offender has made an admission and the victim is satisfied that such a resolution may be used. This may amount to an apology or agreement to carry out some activity, such as repairing damage caused. In 2013/14, submitting data on community resolutions became mandatory, with almost all police forces doing so. As a result, caution should be used when comparing the “Other” outcome category between 2013/14 and previous years.
For more information on the circumstances in which these outcomes are assigned, please see the crime outcomes section of the relevant year’s Home Office Counting Rules:
www.gov.uk/government/publications/counting-rules-for-recorded-crime
The previous year’s statistical bulletin “Crime Outcomes in England and Wales 2013/14” reflected the transition from the old detections to the new outcomes framework. As this was a transitional year, with a fuller, more detailed outcomes framework introduced subsequently in April 2014, the outcome data available for the year 2013/14 are based on broadly similar outcome types to those presented in 2012/13. The outcome types available in the open data tables are shown below. This information should be considered when drawing comparisons across years, because in several cases comparisons should be done with caution given the changes in outcome recording practices over time. This is particularly true for the “cannabis warning” and “other” categories.
See introduction in Police Recorded Crime Open Data Tables section for more general information on police recorded crime.
**TABLE FORMAT**
The main release consists of two sets of data tables, covering financial years from 2005/06 to 2013/14 and 2014/15 onwards. Data are provided in .ods format which can be opened by most spreadsheet software. The data are provided with one financial year per worksheet, which are named accordingly. DATA TABLE SPECIFICATION (2014/15 ONWARDS)
Data tables are laid out in rows and columns. Each row contains a single count of outcomes, with each column containing information about that count, such as the time period, offence and area that it applies to.
| OFFENCE CODE EXPIRED (2014/15 onwards) | |----------------------------------------| | Possible values | X | | This column indicates whether the Offence Code had expired prior to April 2014, i.e. whether outcomes recorded relate only to offences recorded in previous years. |
| OUTCOME DESCRIPTION | |---------------------| | Possible values | Various | | This identifies which outcome type was assigned. |
| OUTCOME GROUP (2014/15 onwards) | |---------------------------------| | Possible values | Various (see Outcome Groups Reference Table above) | | This identifies which outcome group was assigned. |
| OUTCOME TYPE (2014/15 onwards) | |--------------------------------| | Possible values | 1-18 | | This identifies the outcome number that corresponds to the outcome type assigned. |
| FORCE OUTCOMES FOR OFFENCES RECORDED IN QUARTER (2014/15 onwards) | |------------------------------------------------------------------| | Possible values | Various | | This column contains the total number of outcomes that were assigned to offences that were recorded for the specified Outcome Description, Outcome Group, Outcome Type, Offence Code, CSP Name/Force Name and time period (Financial Year and Financial Quarter). |
| FORCE OUTCOMES RECORDED IN QUARTER | |------------------------------------| | Possible values | Various | | This column contains the total number of outcomes that were recorded for the specified Outcome Description, Outcome Group, Outcome Type, Offence Code, CSP Name/Force Name and time period (Financial Year and Financial Quarter). |
For other fields descriptions please see the previous section on Police Recorded Crime. RATES FOR INDIVIDUAL OUTCOME TYPES
The outcome figures provided in these open data tables can be considered in conjunction with the recorded crime open data tables to calculate outcome rates.
For all years prior to 2014/15 it is not possible to link individual outcomes to individual crimes, so any rate calculated will be the number of offences assigned an outcome in a given year as a proportion of the total number of crimes recorded in the same period.
Outcome rates are not a direct measure of police investigative performance, and need to be interpreted with care. For example, some of the offences with the highest outcome rates are the offences most influenced, in terms of their recorded numbers, by proactive policing to apprehend offenders. For example, drug offences are often resolved at the point of the crime being ‘discovered’, as are many of the offences in the ‘other crimes against society’ category. Transferred / cancelled records open data
INTRODUCTION
Transferred or cancelled records (formerly ‘no-crimes’) are those which police forces originally recorded an offence, but subsequently determined that the crime did not take place, or was recorded in error. This could occur for one of five reasons, and from April 2015, the data supplied by forces are split into these categories. Since October 2015, the open data tables have featured this split.
It is important to exercise caution when comparing transferred or cancelled records data across police forces or different years. A particularly high or low number of transferred or cancelled records should not necessarily be interpreted positively or negatively, as different forces may use these in different ways. For example, whilst one force may record all crimes immediately and then later cancel a significant proportion of these, others may wait longer to judge whether an offence constitutes a crime or not, and thus are likely to record fewer cancelled records overall. This means that a firm conclusion cannot be drawn when comparing transferred or cancelled records numbers across forces, as any differences seen may reflect differences in recording practices.
Additionally, comparisons between forces need to be made with caution because some forces may deal more frequently with offence types that are more likely to be cancelled.
TABLE FORMAT
The main release consists of data tables, covering financial years since 2011/12.
Data are provided in .ods format which can be opened by most spreadsheet software. The data are provided with one financial year per worksheet, which are named accordingly.
DATA TABLE SPECIFICATION
Data tables are laid out in rows and columns. Each row contains a single count of crime, with each column containing information about that count, such as the time period, offence and area that it applies to.
| FINANCIAL YEAR | |----------------| | This identifies the financial year in which an offence was transferred or cancelled. Each financial year runs from April to March. |
| FORCE NAME | |------------| | This column identifies the police force area in which a record was transferred or cancelled. |
| OFFENCE TYPE | |--------------| | These columns identify the type of offence that was transferred or cancelled. | Reasons why record was transferred or cancelled:
C1: Transferred: Crime committed outside the jurisdiction of the police force in which it was recorded – passed to the appropriate force.
C2: Cancelled: Additional verifiable information that determines that no notifiable crime occurred becomes available.
C3: Cancelled: Duplicate record or part of a crime already recorded.
C4: Cancelled: Crime recorded in error.
C5: Cancelled: Self defence claimed (for specific recorded assaults).
HOW TO USE TRANSFERRED/CANCELLED OPEN DATA TABLES
At the simplest level, these Open Data tables can be used to find figures for transferred/cancelled records for certain offences in certain time periods for certain areas.
In order to find the figures that the user is interested in, the user will need to filter or search data across different columns. Offences involving knives or sharp instruments open data
Open data tables are also provided for selected police recorded offences involving a knife or sharp instrument. Knives or sharp instruments are taken to be involved in an offence if they are used to stab or cut, or as a threat. The Home Office has collected additional data from the 43 police forces in England and Wales and the British Transport Police on selected offences involving knives and sharp instruments since April 2007. However, the open data table only includes data back to April 2008, due to a number of changes made to the collection after the first year. There were also changes made to the offence coverage in April 2012.
The offences covered in this collection for the years 2008/09 to 2011/12 were:
- Attempted murder;
- Threats to kill;
- Grievous bodily harm (GBH), both with and without intent;
- Actual Bodily Harm (ABH);
- Robbery;
- Rape; and
- Sexual assault.
In April 2012, there were changes to the offence codes for the assault offences. For the years 2012/13 to the present, the assault offences covered by this collection are assault with injury and assault with intent to cause serious harm. These assault categories are not directly comparable with the GBH/ABH offences recorded between 2008/09 and 2011/12. However, it is not thought that these changes greatly affected the totals for the assault offences.
Offences of homicide where the method of killing was by sharp instrument are not included in the knife or sharp instrument open data tables. This information is collected separately from police forces via the Home Office Homicide Index, a record level dataset of homicides recorded by the police in England and Wales. Detailed figures on homicide are published by the Office for National Statistics each year in Focus on: Violent Crime and Sexual Offences.
Due to recording practices, Surrey police force includes unbroken bottle and glass offences in their data returns which are outside the scope of this collection. However as the number of offences recorded by Surrey is around 0.2 per cent of the total number of offences involving a knife or sharp instrument recorded, it is unlikely to have any noticeable effect on the overall figures. Sussex and West Midlands also included these offences in their data returns until April 2010. Due to this change it is not possible to compare data for Sussex or West Midlands or national totals across April 2010 and this is reflected in the presentation of the open data tables. The offences involving knives or sharp instruments open data tables are presented in three separate worksheets to reflect the changes to the assault offence codes and the change in recording practice by Sussex and West Midlands police:
- **2008/09 to 2009/10.** Assault offences are recorded under the old GBH/ABH offence codes and Sussex and West Midlands data include unbroken bottles and glass;
- **2010/11 to 2011/12.** Assault offences are recorded under the old GBH/ABH offence codes and Sussex and West Midlands data do not include unbroken bottles and glass; and
- **2012/13 to present.** Assault offences are assault with injury and assault with intent to cause serious harm and Sussex and West Midlands data do not include unbroken bottles and glass.
The Home Office carry out internal quality assurance of the offences involving knife or sharp instruments data each quarter before publication. These checks include:
- A quarterly variation check of the data received from police forces – the total number of recorded crimes and the number recorded against each offence type are compared to the previous quarters’ figures to check for any vast deviations from the time series trend.
- Cross referencing the data with the main recorded crime returns – the knife or sharp instrument collection contains information on the total number of offences for the selected offences. These are compared with the main recorded crime return to ensure consistency. The total number of offences in the knife and sharp instrument collection are used to create a ‘ratio’ for the number of offences that involved a knife or sharp instrument (figures for which are published at the national level). These ratios are also checked at the police force area level to ensure ratios are not showing a deviation from trend.
- Offences involving a knife or sharp instrument data are also verified with police forces on a quarterly basis ahead of publication.
- The data held on the Home Office database are returned to individual forces asking for confirmation that the data accords with that held on their own systems. Forces resubmit data if required.
As with the main recorded crime open data tables, an offence involving a knife or sharp instrument can be either transferred or cancelled by the police force. Police forces are not required to resubmit data each time a crime record is transferred or cancelled; instead forces will deduct the crime from the cumulative quarterly returns that they supply to the Home Office. This means that in some quarters a negative value may be presented. This system was designed to keep the figures accurate at a financial year level, and to reduce the burden on forces. Therefore, the data may not be completely accurate when looking at crimes committed in a specific quarter. Hate crime open data
Open data tables are provided for hate crime offences recorded by the police. Data are provided for the 43 police forces of England and Wales plus the British Transport Police.
Hate crime is defined as ‘any criminal offence which is perceived, by the victim or any other person, to be motivated by hostility or prejudice towards someone based on a personal characteristic.’ This common definition was agreed in 2007 by the police, Crown Prosecution Service, Prison Service (now the National Offender Management Service) and other agencies that make up the criminal justice system. There are five centrally monitored strands of hate crime:
- race or ethnicity;
- religion or beliefs;
- sexual orientation;
- disability; and
- transgender identity.
Hate crimes are a subset of notifiable crimes that are recorded by the police and make up around two per cent of all crimes (based on police recorded crime figures for 2015/16, see Crime in England and Wales, Year Ending March 2016).
In the process of recording a crime, police can flag an offence as being motivated by one or more of the five monitored strands above (for example, an offence can be motivated by hostility towards the victim’s race and religion). Due to this, in the Hate Crime Open Data Tables two worksheets are provided:
- By_motivating_factor; and
- By_total_offences
The By_motivating_factor worksheet contains numbers of hate crime offences by motivating factor and police forces for each year between 2011/12 and 2015/16. As an offence can be motivated by more than one of the five monitored strands, it is not appropriate to sum these figures to get the total number of police recorded hate crimes. Around five per cent of hate crime offences in 2015/16 are estimated to have involved more than one motivating factor(^1), the majority of these were hate crimes related to both race and religion.
The By_total_offences worksheet provides the total number of hate crimes by police force for the years 2011/12 to 2015/16.
The Home Office carry out internal quality assurance of the hate crime collection before the annual publication. These checks include:
- A variation check of the data received from police forces – the total number of hate crimes along with the number of crimes recorded against each hate crime strand are compared with previous years’ figures to check for any vast deviations from the time series trend.
(^1) Estimated from 24 Home Office Data Hub forces who supplied suitable data to the Home Office. See Annex B in Hate Crime, England and Wales, 2015/16 for more information on the Data Hub.
- A check to ensure that the total number of hate crimes is higher than the total number of offences. Where these two figures were the same, the force was asked to confirm they were recording multiple hate crime strands.
- Comparing the number of race hate crimes with data from the racist incidents collection.
- Reconciling data with police forces. The data held on the Home Office database are returned to individual forces asking for confirmation that the data accords with that held on their own systems. Forces resubmit data if required.
Information on hate crime offences recorded by the police is published annually by the Home Office and can be found on the Hate Crime Statistics page on GOV.UK. As well as overall hate crime offences, there are some offences in the main police recorded crime collection which have a specific racially or religiously motivated version. These are defined by statute and constitute a set of offences which are distinct from their non-racially or religiously aggravated equivalents. These racially or religiously aggravated offences are by definition hate crimes. Information on these offences can be found in Table A4 of the quarterly Crime Statistics in England and Wales series published by the Office for National Statistics or in the police recorded crime open data tables published by the Home Office.
Information on hate crime from the Crime Survey for England and Wales (CSEW) can also be found on this page. CSEW analysis is not published annually. Due to the low volume of hate crime incidents in the sample survey, the figures are not sufficiently robust to report for a single year of the CSEW. Therefore, data from two or three survey years (depending on publication) have been combined to give larger sample sizes, increasing the number of incidents available for analysis. The latest analysis from the CSEW on hate crime can be found in Hate Crime, England and Wales, 2014/15.
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d4f190abf1f8fca868d3729a4cd365c983c7ede9 | Young Carer’s power point
Our view
1: Raising Awareness of Young Carers amongst Professionals
- Make a DVD “a day in the life of”
- Run to make money for the youth centre
- See training pack that group has put together
2: Promote educational achievement and attainment for young carers.
- Full time counsellors
- Mentors
- One specific member of staff to go and talk to about caring roles
- Teachers must understand!
- Instead of treating us like rubbish
- One to ones
- Peer mentors in schools and colleges
- Confidentiality – when we speak with teachers they must not tell any other students
3: Young carers services aligned with TAF model
- Website for Young Carers + professionals
- Info for young carers
- Awareness info for schools + colleges
- Awareness info for professionals
- Professional leaflets, posters and flyers: what are the needs of a young carer
- Make a DVD “a day in the life of”
- Run to make money for the youth centre
- See training pack that group has put together
- Teachers need awareness training
- Mentors
- Social Workers
- Youth workers
- Receptionists
- Counsellors
- Police
- GPs
- RSLE
- CPs
- Politicians
- At school we need special arrangements
- What’s the point in being a young carer if you can’t get a job
- Schools park
- Training on how to talk to teachers
- Need more explanation
4. Ensure young carers entering transition are supported appropriately.
- Specific training for carers advisors at school and connexions.
- Info about unemployment for Y.C.S.
- To mix with other young and adult carers.
- Taster day.
5. Develop a range of Services to support young carers.
- Peer support
- Transport
- Volunteer Drivers
- Advertise more
- Collages
- Banners
- Out on Towns
- More Effective Publicity
- Provison for whole family
- Side of Buses
- Respite/ Fun Stuff
- Youth Club Activities
- Ponies
- Trips/ Days Out
- Residential
- Driving Lessons
- More
- Info about unemployment for Y.C.S
- Funding beyond March 2012
- Don't forget about us when we have reached adult carers.
6. Ensure that potential worker consider needs of the whole family when providing services.
- Social workers, support worker, UTH worker, mentor, teachers, gps, hospitals, teaching assistance, councillors.
- Ask families questions as well as the individuals.
- Ask questions. Are you a young carer?
- Plan
- Consult young carers to find out if this is happening.
- Important because different things happen, environment need ETC.
- Professionals to have access to information re whole family when making assessments and knowing services.
- Important to make sure that caring needs are looked after too.
7. Promoting positive emotional and mental health and well being of a young carers.
- Free access to sport and leisure for all.
- Caring with confidence course.
- Healthy living course.
- 24 hour/ 7 days phone line for carers.
- Support groups for young carers.
- Continuous not periodical.
- Dedicated young carers counsellors.
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76a4f1bf474073b2167a71832578a2a7b7b7d7e7 | National Asthma and Chronic Obstructive Pulmonary Disease Audit Programme (NACAP)
Pulmonary rehabilitation clinical audit 2019 Clinical audit of pulmonary rehabilitation services in England, Scotland and Wales. Patients assessed between 1 March and 31 May and discharged by 31 August 2019.
Clinical audit interim report
Published July 2020 The Royal College of Physicians The Royal College of Physicians (RCP) plays a leading role in the delivery of high-quality patient care by setting standards of medical practice and promoting clinical excellence. The RCP provides physicians in over 30 medical specialties with education, training and support throughout their careers. As an independent charity representing over 38,000 fellows and members worldwide, the RCP advises and works with government, patients, allied healthcare professionals and the public to improve health and healthcare.
Healthcare Quality Improvement Partnership The National Asthma and Chronic Obstructive Pulmonary Disease (COPD) Audit Programme (NACAP) is commissioned by the Healthcare Quality Improvement Partnership (HQIP) as part of the National Clinical Audit (NCA) Programme. HQIP is led by a consortium of the Academy of Medical Royal Colleges, the Royal College of Nursing and National Voices. Its aim is to promote quality improvement, and in particular, to increase the impact that clinical audit, outcome review programmes and registries have on healthcare quality in England and Wales. HQIP holds the contract to commission, manage and develop the National Clinical Audit and Patient Outcomes Programme (NCAPOP), comprising around 40 projects covering care provided to people with a wide range of medical, surgical and mental health conditions. The programme is funded by NHS England, the Welsh government and, with some individual projects, other devolved administrations and crown dependencies. To find out more about the HQIP visit: www.hqip.org.uk/national-programmes.
National Asthma and Chronic Obstructive Pulmonary Disease (COPD) Audit Programme NACAP is a programme of work that aims to improve the quality of care, services and clinical outcomes for patients with asthma and COPD in England, Scotland and Wales. Spanning the entire patient care pathway, NACAP includes strong collaboration with asthma and COPD patients, as well as healthcare professionals, and aspires to set out a vision for a service which puts patient needs first. To find out more about the NACAP visit: www.rcplondon.ac.uk/nacap.
Pulmonary rehabilitation: 2019 interim audit report This report was prepared by the following people, on behalf of the COPD advisory group (the full list of members can be found on the NACAP resources page here): www.rcplondon.ac.uk/nacap-resources.
Prof Sally Singh, pulmonary rehabilitation clinical lead, NACAP, Care Quality Improvement Department (CQID), RCP, London; and head of pulmonary/cardiac rehabilitation and consultant clinical scientist, University of Leicester Mr Matt Legg, programme manager, NACAP, CQID, RCP Ms Neena Garnavos, project manager, NACAP, CQID, RCP Ms Kirsty Maclean-Steel, NACAP deputy programme manager, CQID, RCP Ms Rachael Andrews, NACAP deputy programme manager, CQID, RCP Ms Natasha Long, NACAP programme coordinator, CQID, RCP Mr Philip Stone, research assistant in statistics/epidemiology, National Heart & Lung Institute, Imperial College London Mr Alex Adamson, research assistant in medical statistics, National Heart & Lung Institute, Imperial College London Dr Jennifer Quint, reader in respiratory epidemiology, National Heart & Lung Institute, Imperial College London; honorary respiratory consultant, Royal Brompton and Imperial NHS Trusts Professor C Michael Roberts, senior clinical lead, NACAP, CQID, RCP, London; programme clinical lead, National COPD Audit Programme; and academic clinical lead for population health, UCLPartners.
Citation for this document: Singh S, Legg M, Garnavos N, Maclean-Steel K, Andrews R, Long N, Stone P, Adamson A, Quint J, Roberts CM. National Asthma and Chronic Obstructive Pulmonary Disease Audit Programme (NACAP). Pulmonary rehabilitation clinical audit 2019. Clinical audit of pulmonary rehabilitation services in England, Scotland and Wales. Patients assessed between 1 March and 31 May and discharged by 31 August 2019. Interim report. London: RCP, 2020.
Copyright Copyright © Healthcare Quality Improvement Partnership 2020 ISBN: 978-1-86016-805-5 | eISBN: 978-1-86016-806-2
Royal College of Physicians Care Quality Improvement Department 11 St Andrews Place, Regent’s Park, London NW1 4LE
Registered charity no 210508 www.rcplondon.ac.uk/nacap @NACAPaudit #PRAudit #pulmrehab
© Healthcare Quality Improvement Partnership 2020 Contents
How to use this report ........................................................................................................................................... 5 Foreword by Sally Singh, pulmonary rehabilitation audit clinical lead................................................................. 7 Recommendations .................................................................................................................................................. 8 Section 1: Audit participation .............................................................................................................................. 9 Section 2: General information .......................................................................................................................... 10 Section 3: Programme referral .......................................................................................................................... 12 Section 4: Key clinical information at time of assessment .................................................................................. 16 Section 5: Assessment tests and questionnaires ............................................................................................... 21 Section 6: Key information relating to the programme ....................................................................................... 25 Section 7: Key information at discharge ........................................................................................................... 28 Section 8: Discharge tests .................................................................................................................................. 33 Section 9: Benchmarked key indicators ........................................................................................................... 40 Appendix A: Methodology .................................................................................................................................. 85 Appendix B: Definitions ....................................................................................................................................... 89 Appendix C: BTS Quality Standards for Pulmonary Rehabilitation in Adults (2014) ........................................... 90 References ............................................................................................................................................................ 91 Report at a glance
Waiting times for pulmonary rehabilitation (PR)
Only 58.0% of patients with stable COPD started PR within 90 days of receipt of referral.
Ensure 85.0% of patients referred for PR start it within 90 days of receipt of referral.
Practice walk tests
Services should ensure all exercise assessments are performed to accepted technical standards.
Of those completing an incremental shuttle walk test (ISWT) or 6-minute walk test (6MWT) at initial assessment:
only 41.8% of patients performed a practice walk test.
Discharge assessment / completion of PR
69.3% of patients assessed between 1 March and 31 May 2019, subsequently enrolled and then discharged by 31 August 2019, had a discharge assessment.
Ensure 70.0% of patients enrolled for PR go on to have a discharge assessment.
Outcomes of PR
59.8% of patients experienced an improvement in exercise capacity†
58.0% of patients experienced an improvement in health status‡
- All national QI priorities align with the quality standards for PR † As measured using the minimal clinically important difference (MCID) for incremental shuttle walk test (ISWT) or 6-minute walk test (6MWT) ‡ As measured using the MCID for COPD assessment test (CAT) How to use this report
1. Scope and data collection
This report presents the results from an analysis of data derived from the pulmonary rehabilitation (PR) clinical audit component of the National Asthma and COPD Audit Programme (NACAP). This continuous audit captures the process of treatment in patients who are treated by PR services in England, Scotland and Wales for chronic obstructive pulmonary disease (COPD). The continuous audit was launched in March 2019.
This report, which is the first to use continuous data collection, presents data for patients that were assessed between 1 March and 31 May 2019 and discharged by 31 August 2019. The data represent over 6,000 patients assessed for PR within a 3-month time period and includes patients who:
> completed an initial assessment but were not enrolled on a PR programme, or enrolled and completed the PR programme by 31 August 2019, or enrolled but were known to have dropped out of their PR programme.
This audit works under a consent model, so only data from patients who consented to be part of the audit have been reported.
Individuals who were assessed between 1 March and 31 May 2019, but who had not completed the PR programme before 31 August 2019 were excluded. The most likely reason that individuals would not have completed their PR programme before 31 August was because of delays between assessment and commencing PR.
As such, this report may not reflect as accurately the current status of PR services against key metrics, as a longer data capture period may have allowed, ie by incorporating data from patients with higher than expected waiting times. In future PR audit reports, a longer data capture period will be applied to better represent the status of services.
The data provide information about the delivery of rehabilitation and on the quality improvement (QI) targets for PR services.
Contributing to the overarching national QI objectives of NACAP, this report aims to empower stakeholders to use audit data to facilitate improvements in the quality of care.
2. Report structure
The data are presented largely in tabular form with explanatory notes where appropriate. These data will also be made publicly available at PR service level on www.data.gov.uk, in line with the government’s transparency agenda.
Details of the statistical, data collection and information governance methodologies employed are provided in Appendix A.
Nationally benchmarked results for participating services across England, Scotland and Wales have been provided in Section 9 of this report. The median values for each service are presented alongside the national medians for each indicator. The indicators have been selected based on national guidelines and standards. The service results for each indicator are colour coded in accordance with whether the service falls above, within the middle two, or below the lower quartile.
Details of the methodology employed are also provided (Appendix A). 3. Report coverage
National breakdowns are given for England, Scotland and Wales, as well as ‘All’ figures.
NACAP follows rules on suppression of small numbers in national reporting where it may be possible to identify an individual patient in any data presented. In this report, it was deemed appropriate and safe to include small numbers in national data tables without suppression for the following reasons:
> These data are presented at national aggregate level. It is not possible to combine this national aggregate data in any way which could identify an individual. These data are of a sample of the eligible patients that could have been included in the audit; it is not possible to ascertain which eligible patients were included, and which were not, in the data presented here.
4. Audience and links to relevant guidelines and standards
The report is intended to be read by healthcare professionals; NHS managers, chief executives and board members, as well as service commissioners; policymakers; and voluntary organisations. A separate report has been produced for patients and the public and is available at: www.rcplondon.ac.uk/nacap-PR-interim.
References to the appropriate British Thoracic Society (BTS) Quality Standards (Appendix C) are provided at the beginning of each section. Copies of our dataset, our good practice repository, and all other resources can be found via our website: www.rcplondon.ac.uk/nacap-pr-resources. Foreword by Sally Singh, pulmonary rehabilitation audit clinical lead
Welcome to the first report of the National Asthma and Chronic Obstructive Pulmonary Disease (COPD) Audit Programme (NACAP) pulmonary rehabilitation (PR) continuous clinical audit. This report describes data entered for over 6,000 patients assessed for PR within a 3-month period (1 March – 31 May 2019) and discharged by 31 August 2019.
The data provide an insight into the processes of PR, the clinically important outcomes and the characteristics of populations most likely to complete a discharge assessment. The clinical outcomes for those completing a programme of PR are positive, with the majority of patients achieving important gains in exercise capacity and/or health status. The data also describe the characteristics associated with achieving the minimal clinically important difference (MCID) for a walking test and a health status measure. The audit data explored the impact of deprivation on uptake and outcomes, and it appears that those living within the least deprived areas of England, Scotland and Wales were more likely to attend their discharge assessment (odds ratio (OR) = 1.86 (95% confidence interval (CI) = 1.49–2.33)) compared with those within the most deprived areas. This inequality is a challenge that PR services must acknowledge and strive to even out.
The audit data identify areas for improvement. There are still delays in patients accessing PR in a timely manner, with only 58.0% of patients starting a PR programme within the 90-day (from receipt of referral) target. Access to rehabilitation for the potentially sicker post-hospitalisation population is also poor. The report shows that just 383 (6.3%) patients assessed for PR were those referred after admission for an acute exacerbation of COPD. This suggests that either the offer of PR is not being made by teams in secondary care at the time of discharge or the offer is not being taken up by patients. We must endeavour to improve the rate of referrals to PR services and to ensure patients and clinical colleagues understand the benefits.
Of course, this report would not be possible without the participation of the PR services across England, Scotland and Wales. We are delighted at the high level of participation (90.1% of PR services across England, Scotland and Wales) and we would like to thank services for their support of the audit and dedication to improving patient care. We hope this data will provide valuable insight into the provision and outcomes of rehabilitation and support services to continue to improve the standard of the PR programmes offered to patients.
This report will be followed be a combined clinical and organisational audit report in late 2020. Recommendations
National
Services, providers and patient charities should work together to increase uptake of PR in patients with chronic obstructive pulmonary disease (COPD) after hospitalisation for an acute exacerbation of COPD.
For providers of pulmonary rehabilitation services
This report outlines three key QI priorities for providers of PR. They were chosen because of the strong evidence base for their effectiveness in improving patient care and outcomes.
**National QI priority 1:** Services should endeavour to enrol 85% of those referred for PR within 90 days (*BTS quality standards for pulmonary rehabilitation in adults (2014). Standard 1b*).¹
**National QI priority 2:** Services should ensure all exercise assessments are performed to accepted technical standards, including ensuring all patients undertake a practice exercise test at their initial PR assessment (*BTS quality standards for pulmonary rehabilitation in adults (2014). Standards 8 and 9*).¹
**National QI priority 3:** Ensure 70% of patients enrolled for PR go on to complete the programme and have a discharge assessment (*BTS quality standards for pulmonary rehabilitation in adults (2014). Standard 4*).¹
For commissioners / health boards / sustainability and transformation partnerships / integrated care systems
Services should work with commissioners to ensure that patients are seen in a timely manner (quality improvement (QI) priority: starting pulmonary rehabilitation (PR) within 90 days of receipt of referral) (*BTS quality standards for pulmonary rehabilitation in adults (2014). Standard 1b*).¹
Ensure that your local PR services are participating in the National Asthma and COPD Audit Programme (NACAP) PR audit.
Ensure that all staff are adequately trained and aware of national and, where relevant, international guidance, ie *BTS quality standards for pulmonary rehabilitation in adults (2014)*.¹
For providers of primary and secondary COPD care
Ensure that all eligible patients are offered a referral for PR (*BTS quality standards for pulmonary rehabilitation in adults (2014). Standard 1*).¹
Ensure that all staff working with patients with COPD are aware of the benefits of PR.
For people living with COPD and their families and carers
When you visit your GP / practice nurse, make sure that you ask for information on pulmonary rehabilitation (PR) and discuss whether a referral to your local PR service maybe beneficial to you (*BTS quality standards for pulmonary rehabilitation in adults (2014). Standard 1*).¹
If you are admitted to hospital with a worsening of your chronic obstructive pulmonary disease (COPD), make sure arrangements are made to refer you to your local PR service (*BTS quality standards for pulmonary rehabilitation in adults (2014). Standard 3*).¹ Section 1: Audit participation
Key findings
- A high proportion (90.1%) of services are participating in the PR continuous clinical audit.
- Very few services either did not register (4.0%) or registered but did not submit any data (7.5%).
1.1 Audit participation
| Audit participation | Total number of PR services identified | Number of PR services registered to participate in the audit | Number of PR services registered participating in the audit | Number of services identified but not registered | |---------------------|----------------------------------------|----------------------------------------------------------|----------------------------------------------------------|-----------------------------------------------| | England | 194 | 191 (98.5%) | 182 (93.8%) | 3 (1.5%) | | Scotland | 18 | 11 (61.1%) | 9 (50.0%) | 7 (38.9%) | | Wales | 11 | 11 (100%) | 10 (91.0%) | 0 (0.0%) | | All | 223 | 213 (95.5%) | 201 (90.1%) | 10 (4.5%) |
223 services were identified (194 in England, 18 in Scotland, 11 in Wales)
201 (90.1%) services participated (out of 213 (95.5%) registered to participate)
6,056 records were included in the main analysis
5,710 for England 184 for Scotland 162 for Wales
182 (93.8%) in England 9 (50.0%) in Scotland 10 (91.0%) in Wales Section 2: General information
Key findings
- The median age at referral was 70 years (interquartile range (IQR) 64–76).
- The proportion of males (51.7%) and females (48.2%) being assessed was similar.
- In total, 6,056 patients were assessed for PR between 1 March and 31 May 2019 and discharged by 31 August 2019.
- Patients within the most deprived areas (quintile 1) in England (25.9%) represented a higher proportion of those assessed for PR. However, patients in quintile 2 represented the higher proportions of those assessed for PR in Scotland (24.3%) and Wales (28.1%).
Navigation This section contains the following tables and graphs. If you are viewing this report on a computer, you can select the table that you wish to see from the list below.
- 2.1 Age
- 2.2 Gender
- 2.3 Socioeconomic status
- 2.3.1 Index of Multiple Deprivation measures by national quintile in England, Scotland and Wales
2.1 Age
| Age at assessment (years) | England (n=5,710) | Scotland (n=184) | Wales (n=162) | All (n=6,056) | |--------------------------|------------------|-----------------|--------------|--------------| | Median (IQR\*) | 71 (64–76) | 67 (62–74) | 69 (62–74) | 70 (64–76) |
- Interquartile range 2.2 Gender
| Gender | England (n=5,710) | Scotland (n=184) | Wales (n=162) | All (n=6,056) | |-----------------|-------------------|------------------|---------------|---------------| | Male | 2,967 (52.0%) | 80 (43.5%) | 81 (50.0%) | 3,128 (51.7%) | | Female | 2,737 (47.9%) | 104 (56.5%) | 81 (50.0%) | 2,922 (48.2%) | | Transgender | 1 (0%) | 0 (0.0%) | 0 (0.0%) | 1 (0%) | | Other\* | 2 (0%) | 0 (0.0%) | 0 (0.0%) | 2 (0%) | | Not recorded / preferred not to say | 3 (0.1%) | 0 (0.0%) | 0 (0.0%) | 3 (0%) |
2.3 Socioeconomic status
2.3.1 Index of Multiple Deprivation measures by national quintile in England, Scotland and Wales
| Index of Multiple Deprivation | Q1 (most deprived) | Q2 | Q3 | Q4 | Q5 (least deprived) | |-------------------------------|--------------------|----|----|----|---------------------| | England (IMD\*) 2019 (n=5,634) | 1,459 (25.9%) | 1,138 (20.2%) | 1,116 (19.8%) | 1,040 (18.5%) | 881 (15.6%) | | Scotland (SIMD\*\*) 2019 (n=181) | 42 (23.2%) | 44 (24.3%) | 32 (17.7%) | 36 (19.9%) | 27 (14.9%) | | Wales (WIMD\*\*\*) 2019 (n=160) | 33 (20.6%) | 45 (28.1%) | 32 (20.0%) | 23 (14.4%) | 27 (16.9%) |
Indices of multiple deprivation are not directly comparable between countries. a
\*Index of Multiple Deprivation, England \*\* Scottish Index of Multiple Deprivation \*\*\* Welsh Index of Multiple Deprivation
ahttps://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/465791/English_Indices_of_Deprivation_2015\_-\_Statistical_Release.pdf Section 3: Programme referral
Key standards
BTS quality standards for pulmonary rehabilitation in adults (2014) \[Standard 1b\]: Referral for PR: b. If accepted, people referred for PR are enrolled to commence within 3 months of receipt of referral.
BTS quality standards for pulmonary rehabilitation in adults (2014) \[Standard 3b\]: Referral for PR after hospitalisation for acute exacerbations of COPD: b. People referred for PR following admission with AECOPD are enrolled within 1 month of leaving hospital.
NICE 2016 QS10 [QS5], statement 5: People admitted to hospital for an acute exacerbation of COPD start a PR programme within 4 weeks of discharge.
Key findings
> Overall, the highest proportion of patients (64.9%) were referred from primary care or the community with stable COPD. A small proportion of patients (6.3%) were referred after admission to hospital for an acute exacerbation of COPD (AECOPD). Overall, 58.0% of patients with stable COPD commenced PR within 90 days of receipt of referral. Waiting times were longest in Wales (median 136 days). 17.3% of patients referred after admission to hospital for AECOPD started PR within 30 days of referral.
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> 3.1 Source of patient referral 3.2 Waiting times 3.2.1 Length of time from receipt of referral to the start date for PR 3.2.2 Did people with stable COPD start PR within 90 days of referral? 3.2.3 Length of time from initial assessment to start date for PR 3.2.4 Did patients with AECOPD start PR within 30 days of referral? 3.1 Source of patient referral
| Patients referred from | England (n=5,710) | Scotland (n=184) | Wales (n=162) | All (n=6,056) | |------------------------|-------------------|------------------|---------------|---------------| | Primary/community – stable COPD\* | 3,741 (65.5%) | 116 (63.0%) | 76 (46.9%) | 3,933 (64.9%) | | Secondary care – stable COPD | 1,280 (22.4%) | 35 (19.0%) | 81 (50.0%) | 1,396 (23.1%) | | Primary/community – after treatment for AECOPD\*\* | 239 (4.2%) | 10 (5.4%) | 1 (0.6%) | 250 (4.1%) | | Secondary care – after admission for AECOPD | 363 (6.4%) | 16 (8.7%) | 4 (2.5%) | 383 (6.3%) | | Self-referral | 87 (1.5%) | 7 (3.8%) | 0 (0.0%) | 94 (1.6%) |
- Chronic obstructive pulmonary disease (COPD) \*\* ‘Primary/community – after treatment for acute exacerbation of COPD (AECOPD)’ – includes referrals for patients treated at home or in a community location for AECOPD, this includes referrals from primary care after AECOPD
Fig 3.1 Source of patient referral
- Chronic obstructive pulmonary disease (COPD) \*\* ‘Primary/community – after treatment for acute exacerbation of COPD (AECOPD)’ – includes referrals for patients treated at home or in a community location for AECOPD, this includes referrals from primary care after AECOPD 3.2 Waiting times
3.2.1 Length of time from receipt of referral to start date for PR
| Time from referral to start date for PR (days) for patients with stable COPD | England (n=4,525) | Scotland (n=139) | Wales (n=153) | All (n=4,817) | |---|---|---|---|---| | Median (IQR\*) | 77 (49–117) | 84 (63–132) | 134 (71–236) | 78 (49–119) |
\*I: Interquartile range
3.2.2 Did people with stable COPD start PR within 90 days of receipt of referral?
| PR started within 90 days | England (n=4,525) | Scotland (n=139) | Wales (n=153) | All (n=4,817) | |---|---|---|---|---| | Yes | 2,667 (58.9%) | 74 (53.2%) | 51 (33.3%) | 2,792 (58.0%) |
Fig 3.2 Waiting times for patients with stable COPD\*
\*Denominator for Fig 3.2 is all those patients who started pulmonary rehabilitation 3.2.3 Length of time from initial assessment to start date for PR
| Days from assessment to start date for PR (days) for patients with stable COPD | England (n=4,585) | Scotland (n=145) | Wales (n=155) | All (n=4,885) | |---|---|---|---|---| | Median (IQR\*) | 14 (7–27) | 9 (7–16) | 14 (6–23) | 14 (7–27) |
\*I interquartile range
3.2.4 Did people with AECOPD start PR within 30 days of referral?
| PR started with 30 days of referral | England (n=537) | Scotland (n=25) | Wales (n=5) | All (n=567) | |---|---|---|---|---| | Yes | 96 (17.9%) | 2 (8%) | 0 (0.0%) | 98 (17.3%) |
1 National QI priority: Ensure 85% of patients referred for PR start it within 90 days of receipt of referral (BTS quality standards for pulmonary rehabilitation in adults (2014). Standard 1b).1
Rationale The British Thoracic Society (BTS) quality standard for pulmonary rehabilitation (PR) in adults (2014) 1b states that people with stable chronic obstructive pulmonary disease (COPD) who are referred for PR should start it within 3 months of receipt of referral. This audit reported 58.0% of patients with stable COPD started PR within 90 days of receipt of referral. Longer waiting times for PR have been linked with an increased risk of admission to hospital.3 Therefore ensuring patients start PR within 90 days is of the utmost importance.
Tips to achieve this priority
> Incorporate a process of monitoring the data to check waiting times. Have a list of patients willing to attend at short notice if there is a cancellation. Ensure there is capacity in the class to reduce wait times into rehabilitation after assessment (rolling vs cohort programmes). Section 4: Key clinical information at time of assessment
Key standards:
**NICE 2013 QS43 \[QS1\]:** People are asked if they smoke by their healthcare practitioner, and those who smoke are offered advice on how to stop.
**BTS quality standards for pulmonary rehabilitation in adults (2014) \[Standard 5\]:** Pulmonary rehabilitation programmes include supervised, individually tailored and prescribed progressive exercise training, including both aerobic and resistance training.
**BTS quality standards for pulmonary rehabilitation in adults (2014) \[Standard 8\]:** People attending pulmonary rehabilitation have the outcome of treatment assessed using as a minimum, measures of exercise capacity, dyspnoea and health status.
**BTS quality standards for pulmonary rehabilitation in adults (2014) \[Standard 1a\]:** Referral for PR: a. People with COPD and self-reported exercise limitation (MRC dyspnoea 3–5) are offered PR.
**BTS quality standards for pulmonary rehabilitation in adults (2014) \[Standard 2\]:** PR programmes accept and enrol patients with functional limitation due to other chronic respiratory diseases (for example bronchiectasis, interstitial lung disease (ILD) and asthma) or COPD MRC dyspnoea 2 if referred.
Key findings
Of patients assessed for PR:
- A large proportion were either ex-smokers (70.0%) or current smokers (20.7%).
- The majority had either a Medical Research Council (MRC) score 3 (35.5%) or 4 (31.5%).
- 52.4% had a measure of FEV1/FVC ratio and 63.1% had a measure of FEV1.
- 35.6% had a history of cardiovascular disease and 35.9% a history of lower limb or lower back musculoskeletal disorders.
- 18.6% had a history of mental illness.
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- 4.1 Smoking status
- 4.2 Spirometry
- 4.3 Patient’s body mass index (BMI)
- 4.4 What was the patient reported Medical Research Council (MRC) score at assessment?
- 4.5 Physical comorbidities
- 4.6 Mental health comorbidities
- 4.6.1 Type of mental illness recorded 4.1 Smoking status
| Smoking status | England (n=5,710) | Scotland (n=184) | Wales (n=162) | All (n=6,056) | |---------------------------------------|-------------------|------------------|---------------|---------------| | Never smoked | 312 (5.5%) | 8 (4.3%) | 7 (4.3%) | 327 (5.4%) | | Ex-smoker | 4,009 (70.2%) | 115 (62.5%) | 115 (71.0%) | 4,239 (70.0%) | | Current smoker | 1,177 (20.6%) | 49 (26.6%) | 30 (18.5%) | 1,256 (20.7%) | | Ex-smoker and current vaper | 96 (1.7%) | 10 (5.4%) | 8 (4.9%) | 114 (1.9%) | | Never smoked and current vaper | 4 (0.1%) | 0 (0.0%) | 0 (0.0%) | 4 (0.1%) | | Not recorded | 112 (2.0%) | 2 (1.1%) | 2 (1.2%) | 116 (1.9%) |
Fig 4.1 Smoking status\*
- Due to the small numbers ‘Never smoked and current vaper’ has not been included in this figure.
### 4.2 Spirometry
| Spirometry | Number of patients with a recorded value | Median (IQR\*) value | |-----------------------------|------------------------------------------|---------------------| | **FEV1% predicted** | | | | England (n=5,710) | 3,601 (63.1%) | 56 (41–70) | | Scotland (n=184) | 40 (21.7%) | 54 (46–65) | | Wales (n=162) | 117 (72.2%) | 51 (38–65) | | All (n=6,056) | 3,758 (62.1%) | 55 (41–70) | | **FEV1/FCV ratio** | | | | England (n=5,710) | 2,990 (52.4%) | 0.56 (0.44–0.67) | | Scotland (n=184) | 19 (10.3%) | 0.59 (0.42–0.69) | | Wales (n=162) | 103 (63.6%) | 0.53 (0.43–0.63) | | All (n=6,056) | 3,112 (51.4%) | 0.56 (0.44–0.67) |
\*Interquartile range
### 4.3 Patient’s body mass index (BMI)
| BMI | 2019 | |----------------------------|-------------------------------------------| | | England (n=5,710) | Scotland (n=184) | Wales (n=162) | All (n=6,056) | | Number of patients with a recorded value | 3,748 (65.6%) | 52 (28.3%) | 108 (66.7%) | 3,908 (64.5%) | | Median (IQR\*) | 27.3 (23.4–31.9) | 28.0 (23.1–33.0) | 28.0 (23.5–33.1) | 27.3 (23.4–32.0) |
\*Interquartile range 4.4 What was the patient-reported Medical Research Council (MRC) score at assessment?
| MRC score * | England (n=5,710) | Scotland (n=184) | Wales (n=162) | All (n=6,056) | |-------------|-------------------|------------------|---------------|---------------| | Grade 1 | 112 (2.0%) | 3 (1.6%) | 1 (0.6%) | 116 (1.9%) | | Grade 2 | 946 (16.6%) | 30 (16.3%) | 22 (13.6%) | 998 (16.5%) | | Grade 3 | 2,046 (35.8%) | 66 (35.9%) | 35 (21.6%) | 2,147 (35.5%) | | Grade 4 | 1,772 (31.0%) | 69 (37.5%) | 67 (41.4%) | 1,908 (31.5%) | | Grade 5 | 483 (8.5%) | 9 (4.9%) | 32 (19.8%) | 524 (8.7%) | | Not recorded| 351 (6.1%) | 7 (3.8%) | 5 (3.1%) | 363 (6.0%) |
- Grade 1 – not troubled by breathlessness or strenuous exercise Grade 2 – short of breath when hurrying or walking up a slight hill Grade 3 – walks slower than contemporaries on level ground because of breathlessness or has to stop for breath Grade 4 – stops to breathe after walking 100 metres (109 yards) or after a few minutes walking on level ground Grade 5 – too breathless to leave the house or breathless when dressing or undressing
Fig 4.2 MRC score at assessment 4.5 Physical comorbidities
| Was a history of physical illness recorded for this patient? | England (n=5,710) | Scotland (n=184) | Wales (n=162) | All (n=6,056) | |------------------------------------------------------------|-------------------|------------------|---------------|---------------| | Cardiovascular disease\* | 2,053 (36.0%) | 51 (27.7%) | 54 (33.3%) | 2,158 (35.6%) | | Lower limb or lower back musculoskeletal disorder\*\* | 2,014 (35.3%) | 90 (48.9%) | 68 (42.0%) | 2,172 (35.9%) |
- Including but not limited to, angina, atrial fibrillation, myocardial infarction, stroke, peripheral vascular disease or heart failure
\*\* Including but not limited to, osteoarthritis in the knee, hip or ankle, or lower back pain
4.6 Mental health comorbidities
| History of mental illness recorded | England (n=5,710) | Scotland (n=184) | Wales (n=162) | All (n=6,056) | |-----------------------------------|-------------------|------------------|---------------|---------------| | Mental illness | 1,041 (18.2%) | 38 (20.7%) | 50 (30.9%) | 1,129 (18.6%) |
4.6.1 Type of mental illness recorded
| Type of mental illness recorded | England (n=1,041) | Scotland (n=38) | Wales (n=50) | All (n=1,129) | |-----------------------------------|-------------------|-----------------|--------------|---------------| | Anxiety | 617 (59.3%) | 22 (57.9%) | 36 (72.0%) | 675 (59.8%) | | Depression | 734 (70.5%) | 31 (81.6%) | 39 (78.0%) | 804 (71.2%) | | Severe mental illness\* | 92 (8.8%) | 3 (7.9%) | 2 (4.0%) | 97 (8.6%) |
- Severe mental illness includes clinically diagnosed psychosis; schizophrenia-spectrum disorders, including schizophrenia schizoaffective disorder; severe mood disorders, including bipolar disorder; personality disorders; and behavioural disorders, including eating, sleep or stress disorders.
Fig 4.3 Types of mental illness in those with a recorded history of mental illness Section 5: Assessment tests and questionnaires
Key standards
BTS quality standards for pulmonary rehabilitation in adults (2014) \[Standard 8\]: People attending PR have the outcome of treatment assessed using as a minimum, measures of exercise capacity, dyspnoea and health status.
BTS quality standards for pulmonary rehabilitation in adults (2014) \[Standard 9\]: PR programmes conduct an annual audit of individual outcomes and progress.
Technical standard: field walking tests in chronic respiratory disease
Key findings
Of patients assessed for PR:
- 92.3% completed an incremental shuttle walk test (ISWT) or a 6-minute walk test (6MWT); 7.7% of patients completed neither test.
- 52.0% of those completing an ISWT and 30.2% of those completing a 6MWT test performed a practice walk test at assessment.
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- 5.1 Walk tests
- 5.1.1 Walk tests recorded at initial assessment
- 5.1.2 Walk test values at initial assessment
- 5.2 Health status questionnaires
- 5.2.1 Health status questionnaires recorded at initial assessment
- 5.2.2 COPD assessment test (CAT) values at initial assessment
- 5.2.3 Chronic respiratory questionnaire (CRQ) values at initial assessment 5.1 Walk tests
5.1.1 Walk tests recorded at initial assessment
| Test recorded at initial assessment | 2019 | |-----------------------------------|------| | | England (n=5,710) | Scotland (n=184) | Wales (n=162) | All (n=6,056) | | Incremental shuttle walk test (ISWT) | 2,333 (40.9%) | 59 (32.1%) | 26 (16.0%) | 2,418 (39.9%) | | 6-minute walk test (6MWT) | 2,399 (42.0%) | 99 (53.8%) | 124 (76.5%) | 2,622 (43.3%) | | ISWT + endurance shuttle walk test (ESWT)\* | 526 (9.2%) | 23 (12.5%) | 0 (0.0%) | 549 (9.1%) | | Neither ISWT or 6MWT\*\* | 452 (7.9%) | 3 (1.6%) | 12 (7.4%) | 467 (7.7%) |
\*99.5% of those who did both tests did the ISWT \*\*Two people who did neither the ISWT or the 6MWT did however do the endurance test
5.1.2 Walk test values at initial assessment
| Walking test values at assessment (metres) | 2019 | |------------------------------------------|------| | | England (n=2,856) | Scotland (n=82) | Wales (n=26) | All (n=2,964) | | ISWT Median (IQR\*) | 200 (120–280) | 185 (103–298) | 190 (130–335) | 200 (120–290) | | Practice walk test completed | 1,543 (54%) | 0 (0.0%) | 3 (11.5%) | 1,546 (52.2%) | | 6MWT Median (IQR\*) | 250 (168–330) | 200 (140–280) | 245 (168–311) | 250 (162–330) | | Practice walk test completed | 733 (30.5%) | 0 (0.0%) | 59 (47.6%) | 792 (30.2%) | | ESWT Median (IQR) | 225 (144–371) | 135 (91–190) | 0 (0-0) | 220 (141–366) |
*Interquartile range Fig 5.1 Percentage of patients who performed a practice walk test*
![Graph showing percentage of patients who performed practice walk tests in England, Scotland, Wales, and all regions.]
- No services in Scotland performed a practice test
2 National QI priority: Ensure all patients undertake a practice exercise test at their initial PR assessment (BTS quality standards for pulmonary rehabilitation in adults (2014). Standards 8 and 9)¹
Rationale Accurate measurement of baseline is critical for exercise prescription and outcome assessment. However, only 52.0% of patients who performed an ISWT and 30.2% of patients who performed a 6MWT undertook a practice walk test.
Ensuring that walk tests are conducted to recommended standards, including performing a practice walk test, will ensure:
> assessments are reliable exercise can be accurately prescribed that outcome assessments following PR are unbiased.⁵
Tips to achieve this priority
> Ensure adequate assessment time for patients to complete a practice walk test. Ensure the order of tests and questionnaires allows adequate rest between walk tests. Ensure patients understand the importance of the practice walk to optimise benefits of rehabilitation.
5.2 Health status questionnaires
5.2.1 Health status questionnaires recorded at initial assessment
| Health status questionnaire completion | 2019 | |---------------------------------------|------| | | England (n=5,710) | Scotland (n=184) | Wales (n=162) | All (n=6,056) | | COPD assessment test (CAT) | 4,089 (71.6%) | 102 (55.4%) | 144 (88.9%) | 4,335 (71.6%) | | Chronic respiratory questionnaire (CRQ)| 2,031 (35.6%) | 45 (24.5%) | 30 (18.5%) | 2,106 (34.8%) | 5.2.2 COPD assessment test (CAT) values at initial assessment
| COPD assessment test (CAT)\* | England (n=4,089) | Scotland (n=102) | Wales (n=144) | All (n=4,335) | |-----------------------------|-------------------|------------------|---------------|---------------| | Median (IQR\*\*) | 22 (16–27) | 24 (19–29) | 23 (17–30) | 22 (16–27) |
- COPD assessment test values: 0–40 \*\* Interquartile range
Fig 5.2 COPD assessment test (CAT) values at initial assessment
5.2.3 Chronic respiratory questionnaire (CRQ) values at initial assessment
| CRQ values at assessment | England (n=2,031) | Scotland (n=45) | Wales (n=30) | All (n=2,106) | |--------------------------|-------------------|-----------------|--------------|---------------| | Dyspnoea average score (1.0–7.0) | | | | | | Median (IQR\*) | 2.6 (2.0–3.4) | 2.4 (2.0–3.0) | 2.8 (2.2–3.8)| 2.6 (2.0–3.4) | | Fatigue average score (1.0–7.0) | | | | | | Median (IQR\*) | 3.2 (2.2–4.2) | 3.2 (2.0–3.8) | 2.7 (1.9–3.9)| 3.2 (2.2–4.2) | | Emotion average score (1.0–7.0) | | | | | | Median (IQR\*) | 4.1 (3.2–5.3) | 4.1 (3.3–5.1) | 4.1 (2.9–5.3)| 4.1 (3.2–5.3) | | Mastery average score (1.0–7.0) | | | | | | Median (IQR\*) | 4.2 (3.2–5.5) | 4.2 (3.0–5.2) | 3.6 (3.2–5.2)| 4.2 (3.2–5.5) |
- Interquartile range Section 6 Key information relating to the programme
Key findings
- After the initial assessment 91.6% of patients were enrolled onto a PR programme.
- The majority of PR programmes offered were centre-based (98.2%).
- 66.0% of PR programmes were rolling programmes.
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- 6.1 Post assessment, was the patient enrolled onto a PR programme?
- 6.2 Where is the patient’s PR programme located?
- 6.3 Type of centre-based PR
- 6.4 Total number of supervised centre-based PR sessions scheduled
- 6.4.1 Group and individual centre-based sessions
- 6.5 Number of supervised centre-based PR sessions received
- 6.6 Total number of home-based PR sessions scheduled
- 6.6.1 Method of home-based PR sessions
- 6.7 Number of home-based PR sessions received
6.1 Post assessment, was the patient enrolled onto a PR programme?
| Post-assessment, was the patient enrolled onto a PR programme? | England (n=5,710) | Scotland (n=184) | Wales (n=162) | All (n=6,056) | |---------------------------------------------------------------|------------------|-----------------|---------------|--------------| | Yes | 5,213 (91.3%) | 177 (96.2%) | 160 (98.8%) | 5,550 (91.6%)| | No – clinically unsuitable | 214 (3.7%) | 3 (1.6%) | 1 (0.6%) | 218 (3.6%) | | No – patient choice | 283 (5.0%) | 4 (2.2%) | 1 (0.6%) | 288 (4.8%) |
6.2 Where is the patient’s PR programme located?
| Programme location | England (n=5,213) | Scotland (n=177) | Wales (n=160) | All (n=5,550) | |--------------------|------------------|-----------------|---------------|--------------| | Centre-based | 5,114 (98.1%) | 177 (100.0%) | 160 (100.0%) | 5,451 (98.2%)| | Home-based | 71 (1.4%) | 0 (0.0%) | 0 (0.0%) | 71 (1.3%) | | Both | 28 (0.5%) | 0 (0.0%) | 0 (0.0%) | 28 (0.5%) | 6.3 Type of centre-based PR
| If centre-based,\* what type of programme? | England (n=5,114) | Scotland (n=177) | Wales (n=160) | All (n=5,451) | |------------------------------------------|------------------|------------------|---------------|---------------| | Rolling | 3,352 (65.5%) | 156 (88.1%) | 92 (57.5%) | 3,600 (66.0%) | | Cohort | 1,762 (34.5%) | 21 (11.9%) | 68 (42.5%) | 1,851 (34.0%) |
- Excludes patients who were enrolled in both centre-based and home-based programmes
6.4 Total number of supervised centre-based PR sessions scheduled
| Total number of supervised PR sessions scheduled\* | England (n=5,114) | Scotland (n=177) | Wales (n=160) | All (n=5,451) | |--------------------------------------------------|------------------|------------------|---------------|---------------| | Median (IQR\*\*) | 12 (12–13) | 12 (12–14) | 13 (12–14) | 12 (12–14) |
- Excludes patients who were enrolled in both centre-based and home-based programmes
\*\* Interquartile range
6.4.1 Group and individual centre-based sessions
| Group and individual centre-based sessions\* | England (n=5,114) | Scotland (n=177) | Wales (n=160) | All (n=5,451) | |--------------------------------------------|------------------|------------------|---------------|---------------| | Patients who received centre-based group sessions | 4,786 (93.6%) | 166 (93.8%) | 158 (98.8%) | 5,110 (93.7%) | | Patients who received centre-based individual sessions | 485 (9.5%) | 29 (16.4%) | 8 (5.0%) | 522 (9.6%) |
\*Some patients had group sessions and 1:1 sessions so numbers may add up to more than 100%
6.5 Number of supervised centre-based PR sessions received\*
| Number of supervised centre-based PR sessions received | England (n=5,114) | Scotland (n=177) | Wales (n=160) | All (n=5,451) | |-------------------------------------------------------|------------------|------------------|---------------|---------------| | Median (IQR\*) | 11 (7–12) | 12 (6–13) | 11 (8–14) | 11 (7–12) | | Group sessions\*\* | 11 (7–12) | 12 (6–13) | 11 (8–14) | 11 (7–12) | | 1:1 sessions\*\*\* | 1 (1–2) | 2 (2–2) | 1 (1–2) | 1 (1–2) | | Total | 11 (6–12) | 12 (6–14) | 11 (8–14) | 11 (6–12) |
- Interquartile range
\*\* Excludes patients who had both group and 1:1 sessions
\*\*\* Out of those who did at least one session 6.6 Total number of home-based PR sessions scheduled\*
A small number of patients participated in home-based PR (n=71, 1.3%). The median (IQR) range of supervised sessions scheduled in the home was 4 (4–6). All home-based PR was delivered in England.
\*Excluding those who were enrolled in both centre-based and home-based
6.6.1 Method of home-based PR sessions
The majority of the home-based PR sessions were supervised in person (n=56, 78.9%). Other home-based contact included:
> telephone calls (n=37, 52.1%) technology based PR (video conferencing) (n=1, 1.4%) other digital communication (n=6, 8.5%).
No services offered group-based video conferencing sessions. These home-based programmes were all based in England.
6.7 Number of home-based PR sessions received\*
The median (IQR) number of in person home-based supervised sessions received was 3 (1–4), phone supervision was 2 (1–3) and digital communication was 1 (1–2). No services selected video conferencing – group sessions.
\*Out of those who did at least one session Section 7 Key information at discharge
Back to contents
Key standards
BTS quality standards for pulmonary rehabilitation in adults (2014) \[Standard 4\]: PR programmes are of at least 6 weeks duration and include a minimum of twice-weekly supervised sessions.
BTS quality standards for pulmonary rehabilitation in adults (2014) \[Standard 7\]: People completing PR are provided with an individualised structured, written plan for ongoing exercise maintenance.
Key findings
Of patients assessed between 1 March and 31 May 2019, subsequently enrolled and then discharged by 31 August 2019:
> 69.3% had a discharge assessment. Of those with a history of cardiovascular disease (OR = 0.85 (95% CI = 0.74–0.97)) and depression (OR = 0.73 (95% CI = 0.59–0.50)) there was reduced likelihood of completing a discharge assessment. Those in the least deprived areas of England, Scotland and Wales were more likely to attend their discharge assessment (OR = 1.86 (95% CI = 1.49–2.33)) compared with those in the most deprived areas. 79.3% of patients received an individualised discharge plan.
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> 7.1 Discharge assessment – 7.1.1 Discharge assessment performed – 7.1.2 Discharge assessment by programme type: rolling and cohort – 7.1.3 Likelihood of completing a discharge assessment based on demographic characteristics – 7.1.4 Number of patients receiving an individualised discharge plan – 7.1.5 Days from initial assessment to discharge assessment 7.1 Discharge assessment
7.1.1 Discharge assessment performed
| Discharge assessment performed | England (n=5,213) | Scotland (n=177) | Wales (n=160) | All (n=5,550) | |-------------------------------|------------------|-----------------|---------------|---------------| | Yes | 3,617 (69.4%) | 107 (60.5%) | 124 (77.5%) | 3,848 (69.3%) | | No | 1,596 (30.6%) | 70 (39.5%) | 36 (22.5%) | 1,702 (30.7%) |
Completion ratio\* 2.3:1 1.5:1 3.4:1 2.3:1
\*Ratio of patients who started PR to those completing a discharge assessment
Fig 7.1 Reason for not performing a discharge assessment
7.1.2 Discharge assessment by programme type: rolling and cohort
| Discharge assessment by programme type | England (n=3,352) | Scotland (n=156) | Wales (n=92) | All (n=3,600) | |---------------------------------------|------------------|-----------------|---------------|---------------| | Discharge assessment performed: rolling programmes | | | | | | Yes | 2,262 (67.5%) | 95 (60.9%) | 66 (71.7%) | 2,423 (67.3%) | | Discharge assessment performed: cohort programmes | | | | | | Yes | 1,301 (73.8%) | 12 (57.1%) | 58 (85.3%) | 1,371 (74.1%) | For home-based programmes a smaller proportion of patients completed a discharge assessment compared with either cohort- or centre-based rolling programmes (n=38, 53.5%). These were all completed in England. For patients who received a hybrid model of home and centre-based sessions 16 (57.1%) completed a discharge assessment. This model was only delivered in England.
### 7.1.3 Likelihood of completing a discharge assessment based on demographic characteristics
| Variable | 2019 | |----------|------| | | Unadjusted odds ratio\* | Unadjusted odds ratio 95% confidence interval | Adjusted odds ratio\*\* | Adjusted odds ratio 95% confidence interval | | Female | 0.85 | 0.76–0.96 | 0.90 | 0.79–1.02 | | Quintile of Index of Multiple Deprivation, England (IMD) / Welsh Index of Multiple Deprivation (WIMD) / Scotland (SIMD) | | | | | | 1 (most deprived) | 1 | - | 1 | - | | 2 | 1.40 | 1.17–1.68 | 1.30 | 1.08–1.56 | | 3 | 1.73 | 1.43–2.09 | 1.52 | 1.25–1.85 | | 4 | 1.74 | 1.44–2.11 | 1.47 | 1.21–1.79 | | 5 (least deprived) | 2.27 | 1.83–2.81 | 1.86 | 1.49–2.33 | | Age | | | | | | 35–44 | 0.28 | 0.16–0.50 | 0.38 | 0.21–0.69 | | 45–54 | 0.44 | 0.34–0.57 | 0.55 | 0.42–0.72 | | 55–64 | 0.57 | 0.49–0.66 | 0.66 | 0.56–0.78 | | 65–74 | 1 | - | 1 | - | | 75–84 | 1.19 | 1.01–1.39 | 1.09 | 0.93–1.28 | | 85+ | 0.71 | 0.53–0.95 | 0.62 | 0.46–0.84 | | Comorbidities | | | | | | Cardiovascular history | 0.94 | 0.83–1.07 | 0.85 | 0.74–0.97 | | Musculoskeletal history | 0.82 | 0.73–0.94 | 0.89 | 0.78–1.01 | | Serious mental illness | 0.44 | 0.28–0.69 | 0.66 | 0.41–1.05 | | Anxiety | 0.61 | 0.51–0.74 | 0.95 | 0.76–1.18 | | Depression | 0.52 | 0.44–0.61 | 0.73 | 0.59–0.90 | | CAT\*\* score at initial visit | | | | | | 0–10 | 1.75 | 1.32–2.30 | 1.46 | 1.10–1.94 | | 11–20 | 1.65 | 1.39–1.94 | 1.45 | 1.23–1.72 | | 21–30 | 1 | - | 1 | - | | 31–40 | 0.51 | 0.41–0.63 | 0.59 | 0.47–0.72 |
- Centre remains as a random intercept to account for clustering \*\* Adjusted for all other variables in the model \*\*\* COPD assessment test In the unadjusted analyses, those with a higher IMD score, a higher age (except for those aged 85+) and a lower CAT score were more likely to attend their discharge assessment in both the adjusted and unadjusted analyses. Those with a cardiovascular disease history, musculoskeletal disease history, serious mental illness, anxiety or depression, were less likely to attend their discharge assessment in the unadjusted analyses. However, after adjusting for all other variables, only a history of cardiovascular disease and depression remained statistically significant. In the unadjusted analysis, those who were female were less likely to attend their discharge assessment; however, this association did not reach statistical significance in the adjusted analysis.
7.1.4 Number of patients receiving an individualised discharge plan\*
| Patients receiving individualised discharge plan | England (n=3,617) | Scotland (n=107) | Wales (n=124) | All (n=3,848) | |------------------------------------------------|------------------|------------------|---------------|---------------| | Yes | 2,890 (79.9%) | 65 (60.7%) | 97 (78.2%) | 3,052 (79.3%) |
- Of those patients who had a discharge assessment
Fig 7.2 If discharge assessment performed, % of patients receiving an individualised written discharge exercise plan
7.1.5 Days from initial assessment to discharge assessment\*
| Days from initial assessment to discharge assessment | England (n=3,617) | Scotland (n=107) | Wales (n=124) | All (n=3,848) | |-----------------------------------------------------|------------------|------------------|---------------|---------------| | Median (IQR\*\*) | 69 (56–86) | 74 (61–92) | 63 (54–80) | 69 (56–86) |
- Refer to table 3.2.1 for the referral to start time for PR to understand were the blocks may be \*\* Interquartile range Fig 7.3 Percentage of patients who have been discharged from PR following assessment\*
\*Denominator for Fig 7.3 is all those patients discharged from pulmonary rehabilitation.
3 National QI priority: Ensure 70% of patients enrolled for PR go on to have a discharge assessment. *(BTS quality standards for pulmonary rehabilitation in adults (2014). Standards 4)*
Rationale There are substantial patient-centred benefits of completing PR, namely a marked improvement in exercise capacity and health status. There is also an association between PR completion and lower hospital admission rates at 180 days.³
Tips to achieve this priority
> Incorporate a process to contact patients who have stopped attending to encourage completion. Involve graduates from rehabilitation with the programme to support completion. Ensure the patient receives clear information about the rehabilitation programme and the required commitment. Section 8: Discharge tests
Key standards
BTS quality standards for pulmonary rehabilitation in adults (2014) \[Standard 8\]: People attending PR have the outcome of treatment assessed using as a minimum, measures of exercise capacity, dyspnoea and health status.
BTS quality standards for pulmonary rehabilitation in adults (2014) \[Standard 9\]: PR programmes conduct an annual audit of individual outcomes and progress.
Key findings
Of patients completing a discharge assessment:
- for those with a medical research council (MRC) score reported at initial and discharge assessment, 41.9% reported an improved score.
- 67.2% who performed the 6-minute walk test (6MWT) achieved improvements in exercise capacity and 53.4% who performed the incremental shuttle walk test (ISWT) achieved improvements.
- 58.0% who completed the COPD assessment test (CAT) achieved improvements in health status and 58.6% who completed the dyspnoea domain of the chronic respiratory questionnaire (CRQ) achieved improvements.
Navigation
This section contains the following tables and graphs. If you are viewing this report on a computer, you can select the table that you wish to see from the list below.
- 8.1 What was the patient-reported Medical Research Council (MRC) score at discharge?
- 8.1.1 MRC score at assessment and at discharge
- 8.2 Walk tests
- 8.2.1 Walk tests recorded at discharge assessment
- 8.2.2 Difference in walk test values between initial assessment and discharge assessment
- 8.3 Difference between initial assessment and discharge assessment in walk test values: tests meeting MCID
- 8.3.1 ISWT and 6MWT scores meeting MCID
- 8.3.2 Relationship between demographic characteristics and meeting at the MCID for exercise
- 8.4 Health status questionnaires
- 8.4.1 Health status questionnaires recorded for those patients who completed at both initial and discharge assessments
- 8.4.2 Difference in health status questionnaire values between initial assessment and discharge assessment
- 8.5 Difference between initial assessment and discharge assessment in health status questionnaire values: change data in relation to MCID
- 8.5.1 Health status questionnaire scores meeting MCID
- 8.5.2 Association between demographic characteristics and meeting MCID for at least one health status 8.1 What was the patient-reported Medical Research Council (MRC) score at discharge?
| MRC score\* | England (n=3,617) | Scotland (n=107) | Wales (n=124) | All (n=3,848) | |------------|-------------------|------------------|---------------|---------------| | Grade 1 | 184 (5.1%) | 2 (1.9%) | 6 (4.8%) | 192 (5.0%) | | Grade 2 | 940 (26.0%) | 10 (9.3%) | 33 (26.6%) | 983 (25.5%) | | Grade 3 | 1,061 (29.3%) | 19 (17.8%) | 32 (25.8%) | 1,112 (28.9%) | | Grade 4 | 521 (14.4%) | 7 (6.5%) | 38 (30.6%) | 566 (14.7%) | | Grade 5 | 66 (1.8%) | 1 (0.9%) | 3 (2.4%) | 70 (1.8%) | | Not recorded | 845 (23.4%) | 68 (63.6%) | 12 (9.7%) | 925 (24.0%) |
- N = people who received a discharge assessment
8.1.1 MRC score at assessment and at discharge
The answers in the table below have been calculated using the answers to 7.1 (MRC score at discharge) and 3.5 (MRC score at initial assessment).
MRC grade was known at both initial and discharge assessments for 2,892 patients. In 1,211 (41.9%) patients the MRC grade improved (green shading), in 1,503 (52.0%) it stayed the same (orange shading) and in 178 (6.2%) it was worse (red shading).
| Score at discharge (top) | Grade 1 | Grade 2 | Grade 3 | Grade 4 | Grade 5 | Not recorded | |--------------------------|---------|---------|---------|---------|---------|--------------| | Grade 1 | 44 | 23 | 1 | 1 | 0 | 11 | | Grade 2 | 91 | 403 | 57 | 9 | 0 | 152 | | Grade 3 | 40 | 392 | 618 | 64 | 5 | 327 | | Grade 4 | 14 | 136 | 373 | 392 | 18 | 214 | | Grade 5 | 0 | 19 | 49 | 97 | 46 | 45 | | Not recorded | 3 | 10 | 14 | 3 | 1 | 176 |
8.2 Walk tests
8.2.1 Walk tests recorded at discharge assessment
| Test recorded at discharge assessment | England (n=3,534) | Scotland (n=107) | Wales (n=120) | All (n=3,761) | |--------------------------------------|-------------------|------------------|---------------|---------------| | Incremental shuttle walk test (ISWT) | 1,541 (43.6%) | 30 (28.0%) | 20 (16.7%) | 1,591 (42.3%) | | 6-minute walk test (6MWT) | 1,521 (43.0%) | 56 (52.3%) | 96 (80.0%) | 1,673 (44.5%) | | Incremental shuttle walk test (ISWT) + Endurance shuttle walk test (ESWT) | 363 (10.3%) | 0 (0.0%) | 0 (0.0%) | 363 (9.7%) | | None | 109 (3.1%) | 21 (19.6%) | 4 (3.3%) | 134 (3.6%) | 8.2.2 Difference in walk test values between initial assessment and discharge assessment
| Median difference (IQR)\*, \*\* | England (n=3,534) | Scotland (n=107) | Wales (n=120) | All (n=3,761) | |-----------------------------|-------------------|------------------|---------------|---------------| | ISWT (mins) (n=1,952) | 50 (10–90) | 50 (20–85) | 60 (40–90) | 50 (10–90) | | 6MWT (mins) (n=1,675) | 50 (20–97) | 40 (9–90) | 40 (18–66) | 50 (20–92) | | ESWT (secs) (n=393) | 239 (80–581) | 70 (23–175) | 0 (0–0) | 225 (73–564) |
- Interquartile range. N = people who received any test (including those who received ESWT but not ISWT or 6MWT). \*\* It is important to note that the data in this table only refers to those who received a discharge assessment and performed a walk test at discharge.
8.3 Difference between initial assessment and discharge assessment in walk test values: tests meeting MCID
The scientific evidence provides thresholds for changes in these outcome measures that are judged important by patients (termed the minimal clinically important difference (MCID)).(^5)(^6) For the ISWT the MCID is 48 metres(^b) and for the 6MWT the MCID is 30 metres. For the ESWT the scientific evidence for the MCID is less clear and is therefore not reported in this audit.
8.3.1 ISWT and 6MWT scores meeting MCID
| ISWT and 6MWT meeting MCID | England (n=1,902) | Scotland (n=30) | Wales (n=20) | All (n=1,952) | |-----------------------------|-------------------|------------------|---------------|---------------| | ISWT | | | | | | Yes | 1,013 (53.3%) | 16 (53.3%) | 14 (70.0%) | 1,043 (53.4%) | | (n=1,523) | (=56) | (n=96) | (n=1,675) | | | 6MWT | | | | | | Yes | 1,030 (67.6%) | 35 (62.5%) | 61 (63.5%) | 1,126 (67.2%) |
(^b) Although some evidence now suggests that this is actually 35–36 metres (Thorax. 2019 Oct;74(10):994–95)
### 8.3.2 Relationship between demographic characteristics and meeting at the MCID for exercise
| Variable | Unadjusted odds ratio | Unadjusted odds ratio 95% confidence interval | Adjusted odds ratio | Adjusted odds ratio 95% confidence interval | |--------------------------------------------------------------------------|-----------------------|-----------------------------------------------|---------------------|---------------------------------------------| | Female | 1.01 | 0.88–1.16 | 0.96 | 0.83–1.1 | | Quintile of Index of Multiple Deprivation, England (IMD) / Welsh Index of Multiple Deprivation (WIMD) / Scotland (SIMD) | | | | | | 1 | 1 | - | 1 | - | | 2 | 1.15 | 0.92–1.45 | 1.18 | 0.94–1.48 | | 3 | 1.00 | 0.80–1.26 | 1.06 | 0.84–1.33 | | 4 | 0.93 | 0.74–1.17 | 1.01 | 0.80–1.27 | | 5 | 0.84 | 0.66–1.07 | 0.92 | 0.72–1.17 | | Age | | | | | | 35–44 | 1.42 | 0.57–3.51 | 1.41 | 0.57–3.51 | | 45–54 | 1.73 | 1.20–2.51 | 1.70 | 1.17–2.48 | | 55–64 | 1.26 | 1.03–1.54 | 1.25 | 1.02–1.53 | | 65–74 | 1 | - | 1 | - | | 75–84 | 0.86 | 0.73–1.02 | 0.88 | 0.74–1.04 | | 85+ | 0.88 | 0.61–1.28 | 0.89 | 0.62–1.29 | | Comorbidities | | | | | | Cardiovascular history | 0.95 | 0.82–1.10 | 0.97 | 0.83–1.13 | | Musculoskeletal history | 1.25 | 1.07–1.45 | 1.27 | 1.09–1.48 | | Serious mental illness | 1.32 | 0.68–2.55 | 1.04 | 0.54–2.03 | | Anxiety | 1.17 | 0.91–1.49 | 1.00 | 0.76–1.32 | | Depression | 1.21 | 0.96–1.53 | 1.06 | 0.81–1.38 | | CAT score at initial visit | | | | | | 0–10 | 0.96 | 0.72–1.27 | 1.04 | 0.78–1.38 | | 11–20 | 0.85 | 0.71–1.02 | 0.91 | 0.76–1.09 | | 21–30 | 1 | - | 1 | - | | 31–40 | 0.99 | 0.73–1.33 | 0.92 | 0.68–1.25 |
\*Centre remains as a random intercept–account for clustering
\*\*Adjusted for all other variables in the model
People with musculoskeletal disease history and those who were younger tended to be more likely to meet their MCID for a walk test. It is worth noting that the analysis does not include those who did not receive a discharge assessment, and so variables associated with an increased likelihood of meeting the MCID may in fact also be associated with an increased likelihood of not completing a discharge assessment. 8.4 Health status questionnaires
8.4.1 Health status questionnaires recorded for those patients who completed at both initial and discharge assessments
| Health status questionnaire recorded at discharge assessment | 2019 | |-------------------------------------------------------------|------| | | England (n=2,552) | Scotland (n=47) | Wales (n=109) | All (n=2,708) | | COPD assessment test (CAT) | 2,552 (95.6%) | 47 (94.0%) | 109 (98.2%) | 2,708 (95.7%) | | Chronic respiratory questionnaire (CRQ) | (n=1,372) | (n=31) | (n=22) | (n=1,425) | | CRQ | 1,372 (97.7%) | 31 (91.2%) | 22 (100.0%) | 1,425 (97.6%) |
8.4.2 Difference in health status questionnaire values between initial assessment and discharge assessment
| Mean difference (95% CI\*) | 2019 | |---------------------------|------| | | England (n=2,552) | Scotland (n=47) | Wales (n=109) | All (n=2,708) | | CAT values (n=2,708) | -2 (-6–1) | -3 (-6.5–2) | -3 (-7–1) | -2 (-6–1) | | CRQ (n=1,372) | (n=31) | (n=22) | (n=1,425) | | CRQ – Dyspnoea (n=1,425)\* | 0.8 (0.0–1.6) | 1.0 (-0.2–1.7) | 0.1 (-0.4–1.6)| 0.8 (0.0–1.6) | | CRQ – Fatigue (n=1,425)\* | 0.7 (0.0–1.5) | 0.8 (-0.4–1.6) | 0.8 (0.0–1.4) | 0.7 (0.0–1.5) | | CRQ – Emotion (n=1,425)\* | 0.6 (0.0–1.3) | 0.6 (0.1–1.0) | 0.2 (-0.2–1.1)| 0.6 (0.0–1.3) | | CRQ – Mastery (n=1,425)\* | 0.7 (0.0–1.5) | 0.5 (0.3–1.1) | 0.0 (-0.3–0.6)| 0.5 (0.0–1.5) |
- 95% confidence interval 8.5 Difference between initial assessment and discharge assessment in health status questionnaire values: change data in relation to MCID
The scientific literature provides thresholds for changes in these health status outcome measures that are judged important by patients (termed the minimal clinically important difference (MCID)). For the CAT the MCID is a reduction in 2 points and for the CRQ the MCID is an increase in 0.5 points for each domain.
8.5.1 Health status questionnaire scores meeting MCID
| Meeting MCID | 2019 | | | | |--------------|------|---|---|---| | | England (n=2,552) | Scotland (n=47) | Wales (n=109) | All (n=2,708) | | CAT values | 1,481 (58.0%) | 27 (57.4%) | 63 (57.8%) | 1,571 (58.0%) | | CRQ | (n=1,372) | (n=31) | (n=22) | (n=1,425) | | Dyspnoea values | 809 (59.0%) | 18 (58.1%) | 8 (36.4%) | 835 (58.6%) | | Fatigue values | 810 (59.0%) | 18 (58.1%) | 13 (59.1%) | 841 (59.0%) | | Emotion values | 739 (53.9%) | 17 (54.8%) | 9 (40.9%) | 765 (53.7%) | | Mastery values | 808 (58.9%) | 16 (51.6%) | 6 (27.3%) | 830 (58.2%) |
### 8.5.2 Association between demographic characteristics and meeting MCID for at least one health status
| Variable | 2019 | |----------|------| | | Unadjusted odds ratio\* | Unadjusted odds ratio 95% confidence interval | Adjusted odds ratio\*\* | Adjusted odds ratio 95% confidence interval | | Female | 1.03 | 0.88–1.21 | 0.99 | 0.84–1.17 | | Quintile of Index of Multiple Deprivation, England (IMD) / Welsh Index of Multiple Deprivation (WIMD) / Scotland (SIMD) | | | | | | 1 | 1 | - | 1 | - | | 2 | 1.16 | 0.90–1.51 | 1.26 | 0.97–1.64 | | 3 | 0.98 | 0.76–1.27 | 1.06 | 0.82–1.38 | | 4 | 0.92 | 0.71–1.19 | 1.09 | 0.84–1.43 | | 5 | 0.86 | 0.66–1.14 | 1.05 | 0.79–1.39 | | Age | | | | | | 35–44 | 2.91 | 0.81–10.43 | 2.61 | 0.68–9.96 | | 45–54 | 0.79 | 0.53–1.18 | 0.61 | 0.40–0.92 | | 55–64 | 0.90 | 0.72–1.12 | 0.78 | 0.62–0.98 | | 65–74 | 1 | - | 1 | - | | 75–84 | 0.82 | 0.68–0.98 | 0.87 | 0.72–1.06 | | 85+ | 0.79 | 0.53–1.18 | 0.88 | 0.58–1.33 | | Comorbidities | | | | | | Cardiovascular history | 1.15 | 0.97–1.36 | 1.11 | 0.93–1.32 | | Musculoskeletal history | 1.26 | 1.06–1.49 | 1.15 | 0.97–1.38 | | Serious mental illness | 3.29 | 1.24–8.74 | 3.16 | 1.13–8.87 | | Anxiety | 1.18 | 0.89–1.55 | 0.87 | 0.63–1.20 | | Depression | 1.50 | 1.14–1.96 | 1.30 | 0.95–1.78 | | CAT score at initial visit | | | | | | 0–10 | 0.24 | 0.17–0.32 | 0.24 | 0.17–0.32 | | 11–20 | 0.62 | 0.51–0.76 | 0.63 | 0.51–0.76 | | 21–30 | 1 | - | 1 | - | | 31–40 | 2.33 | 1.61–3.37 | 2.34 | 1.61–3.42 |
\*Centre remains as a random intercept to account for clustering
\*\*Adjusted for all other variables in the model
Analyses show the association between each variable and the likelihood of meeting at least one MCID at discharge assessment. In the unadjusted analyses, a history of musculoskeletal disease, depression, and serious mental illness (SMI), and a higher CAT score at initial assessment were associated with an increased likelihood of meeting the MCID. In the analysis in which variables were adjusted for the effect of other variables, only a history of SMI and a higher CAT score at initial assessment remained associated with meeting the MCID. This may be because those with more serious disease and disease history find PR of greater benefit with regards to their perceived health status than those with milder disease and disease history. It is worth noting that the analysis does not include those who did not receive a discharge assessment, and so variables associated with an increased likelihood of meeting the MCID may in fact also be associated with an increased likelihood of not completing a discharge assessment. Section 9: Benchmarked key indicators
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9.1 Benchmarking of key indicators for participating services
The process and outcome performance indicators identified in the dashboard (Table 2) have been chosen as they are:
- objective and easily recordable
- map to accepted quality standards (Appendix B)
- have been discriminatory in the current audit cycle
- can be quantitatively compared with national data. Table 1. Rationale for each process and outcome measure
| Benchmarking dashboard performance indicator | Rationale | |---------------------------------------------|-----------| | **Process items** | | | Start date offered within 90 days of receipt of referral (if known) | > Poor current performance nationally.
> Maps to QS1.1\
> Improvement is likely to enhance patient outcomes, particularly PR uptake rates. | | Patients undertaking practice walk test (for incremental shuttle walk test (ISWT) or 6-minute walk test (6MWT)) | > Poor current performance nationally.\
> Maps to QS8.1\
> Performance of practice tests linked to better uptake and outcome in sub-analysis of 2015 audit.3,4\
> Likely to improve clinical outcomes through more accurate exercise prescription. | | Patients enrolled for PR who subsequently have a discharge assessment | > Substantial numbers of patients currently do not complete PR.\
> Improvement in completion rates would extend benefits of PR to larger number of patients.\
> Could reduce subsequent hospitalisation rates as suggested by 2015 outcomes report.3\
> Causes of non-completion are multifactorial and therefore will prompt quality improvement activity across the system. | | Patients with a discharge assessment who receive a written discharge exercise plan | > Poor current performance nationally.\
> Maps to QS7.1\
> Improvement will increase the likelihood of benefits of PR being maintained in longer term. | | **Outcome items** | | | Patients experience an improvement in exercise capacity (evidenced by achieving the minimal clinically important differences (MCID) for ISWT or 6MWT) | > Key patient-centred measure of outcome.\
> May identify services where care processes are suboptimal.\
> Maps to QS8.1 | | Patients experience an improvement in health status (evidenced by achieving at least one health status MCID) | > Key patient-centred measure of outcome.\
> May identify services where care processes are suboptimal.\
> Maps to QS8.1 | Table 2 shows the median, lower quartile and upper quartile for the key indicators that have been presented in the unadjusted benchmarking of services (Table 3). The values presented in Table 2 have been derived by the method shown visually in the box and whisker plot (Fig 1). More specifically, to create the ‘box’, data for each key indicator were ordered numerically from smallest (whisker; P0), to largest (whisker; P100) to find the median (P50), the middle point of the values, the data is divided into two halves. These two halves are then divided in half again, to identify the lower quartile (P25) and the upper quartile (P75).
Table 2. The median and interquartile ranges for each key indicator
| Process items | Outcome items | |---------------|---------------| | Start date within 90 days of receipt of referral\* | Patients undertaking practice walk test | Patients enrolled for PR who subsequently have a discharge assessment | Patients with a discharge assessment who receive a written discharge exercise plan | Improvement in exercise capacity | Improvement in health status | | Lower quartile | 29 | 0 | 59 | 52 | 46 | 50 | | Median | 63 | 10 | 71 | 98 | 61 | 72 | | Upper quartile | 84 | 88 | 84 | 100 | 75 | 90 |
- This metric is only reported for non-AECOPD patients. Data is not directly comparable to the 2017 snapshot audit, as data was reported for all patients in 2017.
The colours refer to the quartile in which each result lies:
- **Red** = Result equal to or below lower quartile for that indicator
- **Amber** = Result above lower quartile but below upper quartile for that indicator
- **Green** = Result equal to or above upper quartile for that indicator
- **\<5** = Sample size too small for meaningful interpretation (\<5 records)
______________________________________________________________________
1 The cut-points for the third and fifth indicator suggest excessive clustering at the extremes. Fig 1. Box and whisker plot
Table 3. Unadjusted benchmarking of key indicators for participating services in England, Scotland and Wales
This benchmarking data is provided for patients that were assessed between 1 March and 31 May 2019 and discharged by 31 August 2019. The data represents in total over 6,000 patients. This table provides service data for four process and two outcome performance indicators that map onto the BTS quality standards.¹
Process
> Start date within 90 days of receipt of referral Patients undertaking practice walk test Patients enrolled for PR who go on to have a discharge assessment Patients with a discharge assessment who received a written individualised exercise plan Outcomes
> Improvement in exercise capacity Improvement in health status
These outcomes have been selected based on previous data reports and allow a comparison with the national medians and performance.
It is important to note that the wait times as presented in this report may be shorter than might be reported from a longer data capture period. Patients with a protracted journey through the programme have been excluded from the analysis in this report. This is because, while individuals may have been assessed between 1 March and 31 May 2019, they may not have completed the PR programme before 31 August 2019, and this is likely to be because of delays between assessment and commencing PR.
However, data for the other process and outcomes indicators will be representative of the patient cohort reported and can be used to help PR services to understand their performance against these indicators. We hope that services will use this data to check whether their performance has improved in the next report.
For some services the number of patients entered is very low and makes interpretation at a local level difficult. Services with less than five data points to analyse have been included in the table in name only; their data has been suppressed as per the NACAP policy for supressing small numbers if there is a risk of individual patients being identified. Table 3. Benchmarked key indicators for pulmonary rehabilitation services 2019
| Trust / health board name | Service name | Cases audited | Process items | Outcome items | |---------------------------|--------------|---------------|---------------|---------------| | | | | Start date within 90 days of receipt of referral\* | Patients undertaking practice exercise test | Patients enrolled for PR who subsequently have a discharge assessment | Patients with a discharge assessment who received a written individualised exercise plan | Improvement in exercise capacity | Improvement in health status | | National QI aim | | | 85% | 100% | 70% | - | - | - | | National result | | 2,792 | 58% | 2,338 | 42% | 3,848 | 69% | 3,052 | 79% | 2,169 | 60% | 2,438 | 70% | | England | | | | | | | | | | | | | | | Airedale NHS Foundation Trust | Airedale, Wharfedale and Craven Pulmonary Rehabilitation Service | 20 | 6 | 33% | \<5 | - | 13 | 68% | 10 | 77% | 8 | 67% | 6 | 46% | | Anglian Community Enterprise Community Interest Company (ACE CIC) | ACE Pulmonary Rehabilitation Service | 34 | 18 | 62% | 21 | 66% | 21 | 68% | 21 | 100% | 7 | 37% | 18 | 90% | | Atrium Health Ltd | Atrium Coventry and Warwickshire Pulmonary Rehabilitation Service | 11 | 10 | 100% | 0 | 0% | 10 | 91% | 10 | 100% | 5 | 50% | 8 | 89% | | Trust / health board name | Service name | Cases audited | Start date within 90 days of receipt of referral\* | Patients undertaking practice exercise test | Patients enrolled for PR who subsequently have a discharge assessment | Patients with a discharge assessment who received a written individualised exercise plan | Improvement in exercise capacity | Improvement in health status | |--------------------------|--------------|---------------|-----------------------------------------------|---------------------------------------------|-------------------------------------------------|-----------------------------------------------------------------|-----------------------------|-----------------------------| | National QI aim | | | | | | | | | | National result | | 2,792 | 58% | 2,338 | 42% | 3,848 | 69% | 3,052 | 79% | 2,169 | 60% | 2,438 | 70% | | Barnet, Enfield and Haringey Mental Health NHS Trust | Enfield Respiratory Service | 13 | \<5 | - | 7 | 54% | 6 | 50% | 6 | 100% | \<5 | - | \<5 | - | | Barts Health NHS Trust | Tower Hamlets Pulmonary Rehabilitation Service | 14 | 8 | 67% | 9 | 64% | 8 | 67% | 8 | 100% | 5 | 62% | \<5 | - | | Bedford Hospital NHS Trust | Bedford Hospital Pulmonary Rehabilitation | 89 | 71 | 92% | \<5 | - | 49 | 60% | 49 | 100% | 26 | 62% | 23 | 47% | | Berkshire Healthcare NHS Foundation Trust | Berkshire West Cardiac and Respiratory Specialist Services | 47 | 5 | 13% | 0 | 0% | 28 | 61% | 28 | 100% | 10 | 36% | 15 | 54% | | Birmingham Community Healthcare NHS Foundation Trust | BCHC Community Respiratory Service | 21 | 12 | 60% | 20 | 100% | 16 | 76% | 16 | 100% | 7 | 47% | 15 | 94% | | Trust / health board name | Service name | Cases audited | Start date within 90 days of receipt of referral\* | Patients undertaking practice exercise test | Patients enrolled for PR who subsequently have a discharge assessment | Patients with a discharge assessment who received a written individualised exercise plan | Improvement in exercise capacity | Improvement in health status | |---------------------------|--------------|---------------|-----------------------------------------------|---------------------------------------------|-------------------------------------------------|-----------------------------------------------------------------|-----------------------------|-----------------------------| | National QI aim | | | | | | | | | | National result | | 2,792 | 58% | 2,338 | 42% | 3,848 | 69% | 3,052 | 79% | 2,169 | 60% | 2,438 | 70% | | Blackpool Teaching Hospitals NHS Foundation Trust | Pulmonary Rehabilitation Service Fylde and Wyre | 30 | 17 | 68% | 0 | 0% | 19 | 63% | 19 | 100% | 11 | 65% | - | - | | BOC LTD | Blackpool Pulmonary Rehabilitation Service | 27 | 22 | 85% | 0 | 0% | 23 | 85% | 8 | 35% | 19 | 83% | 15 | 65% | | BOC LTD | Bradford Pulmonary Rehabilitation Service | 47 | 29 | 74% | 0 | 0% | 27 | 69% | 26 | 96% | 18 | 67% | 13 | 48% | | BOC LTD | East Staffordshire Pulmonary Rehabilitation Service | 6 | 5 | 83% | 6 | 100% | \<5 | - | 0 | 0% | \<5 | - | \<5 | - | | BOC LTD | Hounslow Community Respiratory Team | 13 | 7 | 88% | 7 | 54% | 12 | 92% | 12 | 100% | 8 | 67% | 5 | 45% | | BOC LTD | Newcastle Healthy Lungs Programme | 30 | 19 | 95% | 15 | 56% | 25 | 93% | \<5 | - | 23 | 96% | 18 | 72% | | Trust / health board name | Service name | Cases audited | Start date within 90 days of receipt of referral\* | Patients undertaking practice exercise test | Patients enrolled for PR who subsequently have a discharge assessment | Patients with a discharge assessment who received a written individualised exercise plan | Improvement in exercise capacity | Improvement in health status | |---------------------------|--------------------------------------------------|---------------|---------------------------------------------------|---------------------------------------------|---------------------------------------------------------------------|---------------------------------------------------------------------------------|---------------------------------|-----------------------------| | National QI aim | | | | | | | | | | National result | | 2,792 | 58% | 2,338 | 42% | 3,848 | 69% | 3,052 | 79% | 2,169 | 60% | 2,438 | 70% | | BOC LTD | Nottingham West Pulmonary Rehabilitation | 12 | \<5 | - | 0% | 12 | 100% | \<5 | - | 10 | 83% | 8 | 67% | | BOC LTD | Somerset Pulmonary Rehabilitation Service | 28 | 16 | 76% | 0% | 23 | 96% | 22 | 96% | 17 | 74% | 14 | 61% | | BOC LTD | South East Staffordshire Pulmonary Rehabilitation Service | 27 | 23 | 85% | 26% | 18 | 67% | \<5 | - | 14 | 78% | 9 | 50% | | BOC LTD | The North Lincolnshire Respiratory Service | 17 | 14 | 93% | 0% | 15 | 88% | 13 | 87% | 14 | 93% | 8 | 53% | | BOC LTD | West Norfolk BOC Pulmonary Rehabilitation Service | 40 | 24 | 77% | 0% | 25 | 76% | 0 | 0% | 16 | 67% | 8 | 35% | | Bristol Community Health | Bristol Community Respiratory Service | 62 | 13 | 27% | 44% | 39 | 72% | 36 | 92% | 33 | 87% | 21 | 81% | | Trust / health board name | Service name | Cases audited | Start date within 90 days of receipt of referral\* | Patients undertaking practice exercise test | Patients enrolled for PR who subsequently have a discharge assessment | Patients with a discharge assessment who received a written individualised exercise plan | Improvement in exercise capacity | Improvement in health status | |---------------------------|--------------|---------------|-----------------------------------------------|---------------------------------------------|-------------------------------------------------|-------------------------------------------------|-----------------------------|-----------------------------| | National QI aim | | | 85% | 100% | 70% | - | - | - | | National result | | 2,792 | 58% | 2,338 | 42% | 3,848 | 69% | 3,052 | 79% | 2,169 | 60% | 2,438 | 70% | | Bromley Healthcare | Bromley Pulmonary Rehabilitation | 58 | 34 | 61% | 0 | 0% | 42 | 75% | 41 | 98% | 27 | 64% | 37 | 88% | | Buckinghamshire Healthcare NHS Trust | Buckinghamshire Pulmonary Rehabilitation Services | 79 | 6 | 9% | 0 | 0% | 62 | 95% | 8 | 13% | 33 | 53% | 36 | 60% | | Calderdale and Huddersfield NHS Foundation Trust | Calderdale Pulmonary Rehabilitation Service | 25 | 15 | 75% | \<5 | - | 20 | 91% | 19 | 95% | 10 | 50% | 19 | 95% | | Cambridgeshire and Peterborough NHS Foundation Trust | Huntingdon Pulmonary Rehabilitation | 10 | 7 | 70% | 0 | 0% | 10 | 100% | 0 | 0% | 8 | 80% | 5 | 56% | | Cambridgeshire Community Services NHS Trust | Luton Community Respiratory Service | 18 | 10 | 100% | 0 | 0% | 12 | 71% | 0 | 0% | 5 | 42% | 6 | 50% | | Care Plus Group | Hope Street Specialist Service | 52 | 29 | 67% | 0 | 0% | 28 | 54% | 28 | 100% | 16 | 59% | 13 | 50% | | Trust / health board name | Service name | Cases audited | Start date within 90 days of receipt of referral\* | Patients undertaking practice exercise test | Patients enrolled for PR who subsequently have a discharge assessment | Patients with a discharge assessment who received a written individualised exercise plan | Improvement in exercise capacity | Improvement in health status | |--------------------------|--------------|---------------|-----------------------------------------------|---------------------------------------------|-------------------------------------------------|-----------------------------------------------------------------|-----------------------------|-----------------------------| | National result | | 2,792 | 58% | 2,338 | 42% | 3,848 | 69% | 3,052 | 79% | 2,169 | 60% | 2,438 | 70% | | Central and North West London NHS Foundation Trust | Camden COPD and Home Oxygen Service | 23 | 15 | 79% | 18 | 82% | 15 | 65% | 15 | 100% | 9 | 60% | 11 | 73% | | Central and North West London NHS Foundation Trust | Milton Keynes Community Pulmonary Rehabilitation Service | 28 | 8 | 31% | 0 | 0% | 19 | 68% | 19 | 100% | 15 | 83% | 10 | 53% | | Central London Community Healthcare NHS Trust | Barnet COPD Respiratory Service | 40 | 33 | 94% | 32 | 89% | 24 | 65% | 24 | 100% | 15 | 62% | 11 | 46% | | Central London Community Healthcare NHS Trust | Harrow COPD Respiratory Service | 14 | 9 | 100% | 14 | 100% | 11 | 79% | 10 | 91% | 9 | 82% | 10 | 91% | | Central London Community Healthcare NHS Trust | Merton Pulmonary Rehabilitation Service | 36 | 27 | 96% | 28 | 97% | 12 | 43% | \<5 | - | 8 | 67% | 8 | 73% | | Trust / health board name | Service name | Cases audited | Start date within 90 days of receipt of referral\* | Patients undertaking practice exercise test | Patients enrolled for PR who subsequently have a discharge assessment | Patients with a discharge assessment who received a written individualised exercise plan | Improvement in exercise capacity | Improvement in health status | |--------------------------|--------------|---------------|-----------------------------------------------|---------------------------------------------|-------------------------------------------------|-------------------------------------------------|---------------------------------|---------------------------------| | National QI aim | | | | | | | | | | National result | | 2,792 | 58% | 2,338 | 42% | 3,848 | 69% | 3,052 | 79% | 2,169 | 60% | 2,438 | 70% | | Central London Community Healthcare NHS Trust | West Hertfordshire Community Respiratory Service | 66 | 34 | 57% | 6 | 10% | 48 | 77% | 45 | 94% | 18 | 42% | 22 | 47% | | Cheshire and Wirral Partnership NHS Foundation Trust | Cheshire and Wirral Partnership Respiratory Service | 32 | 6 | 19% | \<5 | - | 26 | 81% | 26 | 100% | 14 | 58% | 22 | 85% | | City Health Care Partnership CIC | East Riding Pulmonary Rehabilitation Programme | 11 | \<5 | - | \<5 | - | 9 | 82% | 5 | 56% | \<5 | - | 7 | 78% | | City Health Care Partnership CIC | Hull Pulmonary Rehabilitation Team | 5 | 0 | 0% | \<5 | - | \<5 | - | \<5 | 100% | \<5 | 100% | \<5 | 100% | | Cornwall Partnership NHS Foundation Trust | Integrated Community Respiratory Team East Cornwall (ICRTEC) | 17 | \<5 | - | 7 | 41% | 13 | 76% | 13 | 100% | 12 | 92% | 13 | 100% | | Trust / health board name | Service name | Cases audited | Start date within 90 days of receipt of referral\* | Patients undertaking practice exercise test | Patients enrolled for PR who subsequently have a discharge assessment | Patients with a discharge assessment who received a written individualised exercise plan | Improvement in exercise capacity | Improvement in health status | |---------------------------|--------------|---------------|-----------------------------------------------|---------------------------------------------|-------------------------------------------------|-------------------------------------------------|---------------------------------|---------------------------------| | National QI aim | | | | | | | | | | National result | | 2,792 | 58% | 2,338 | 42% | 3,848 | 69% | 3,052 | 79% | 2,169 | 60% | 2,438 | 70% | | Cornwall Partnership NHS Foundation Trust | Mid, West, North Cornwall Pulmonary Rehabilitation Programme | 9 | 0 | 0% | 0 | 0% | \<5 | - | \<5 | 50% | 0 | 0% | \<5 | - | | County Durham and Darlington NHS Foundation Trust | Darlington Pulmonary Rehabilitation | \<5 | \<5 | 100% | 0 | 0% | \<5 | 100% | \<5 | 100% | 0 | 0% | 0 | 0% | | County Durham and Darlington NHS Foundation Trust | Durham Dales Easington and Sedgefield (DDES) Pulmonary Rehabilitation Programme | 32 | 20 | 71% | 0 | 0% | 25 | 78% | 11 | 44% | 11 | 46% | 11 | 48% | | County Durham and Darlington NHS Foundation Trust | North Durham Pulmonary Rehabilitation | 6 | 5 | 83% | \<5 | - | 5 | 83% | 0 | 0% | 5 | 100% | \<5 | - | | Trust / health board name | Service name | Cases audited | Start date within 90 days of receipt of referral\* | Patients undertaking practice exercise test | Patients enrolled for PR who subsequently have a discharge assessment | Patients with a discharge assessment who received a written individualised exercise plan | Improvement in exercise capacity | Improvement in health status | |--------------------------|--------------|---------------|-----------------------------------------------|---------------------------------------------|-------------------------------------------------|-------------------------------------------------|-----------------------------|-----------------------------| | National QI aim | | | | | | | | | | National result | | 2,792 | 58% | 2,338 | 42% | 3,848 | 69% | 3,052 | 79% | 2,169 | 60% | 2,438 | 70% | | Croydon Health Services NHS Trust | Croydon Pulmonary Rehabilitation Programme | 38 | 20 | 80% | 16 | 46% | 16 | 53% | 14 | 88% | 10 | 62% | 13 | 93% | | CSH Surrey | CSH Surrey Pulmonary Rehabilitation Programme | 29 | 6 | 23% | 18 | 62% | 18 | 62% | 13 | 72% | 12 | 67% | 11 | 61% | | CSH Surrey | North West Surrey Respiratory Care Team | 15 | \<5 | - | 15 | 100% | 13 | 93% | 0 | 0% | 9 | 69% | 13 | 100% | | Derbyshire Community Health Services NHS Foundation Trust | North Derbyshire Community Respiratory Service | 14 | 0 | 0% | \<5 | - | 10 | 71% | 9 | 90% | 8 | 89% | 9 | 90% | | Doncaster And Bassetlaw Teaching Hospitals NHS Foundation Trust | Doncaster Pulmonary Rehabilitation Services | 60 | 41 | 84% | 0 | 0% | 33 | 60% | 15 | 45% | 20 | 62% | 24 | 92% | | Trust / health board name | Service name | Cases audited | Start date within 90 days of receipt of referral\* | Patients undertaking practice exercise test | Patients enrolled for PR who subsequently have a discharge assessment | Patients with a discharge assessment who received a written individualised exercise plan | Improvement in exercise capacity | Improvement in health status | |---------------------------|--------------|---------------|-----------------------------------------------|---------------------------------------------|-------------------------------------------------|-------------------------------------------------|-----------------------------|-----------------------------| | National QI aim | | 2,792 | 58% | 100% | 70% | - | - | - | | Dorset County Hospital NHS Foundation Trust | Dorset Pulmonary Rehabilitation service | 33 | 21 | 88% | 25 | 81% | 25 | 86% | 19 | 76% | 15 | 62% | 12 | 50% | | Dorset Healthcare University NHS Foundation Trust | Dorset Healthcare Pulmonary Rehabilitation Programme | 63 | 16 | 41% | 32 | 76% | 23 | 57% | 0 | 0% | 14 | 74% | 12 | 71% | | East Cheshire NHS Trust | East Cheshire Pulmonary Rehabilitation Service | 10 | 7 | 88% | 0 | 0% | 8 | 80% | 8 | 100% | \<5 | - | \<5 | - | | East Lancashire Hospitals NHS Trust | ELHT Pulmonary Rehabilitation Service | 24 | 10 | 56% | 0 | 0% | 15 | 62% | 8 | 53% | 9 | 69% | - | - | | East Suffolk and North Essex NHS Foundation Trust | East Suffolk Pulmonary Rehabilitation Service | 84 | 29 | 41% | 46 | 55% | 58 | 70% | 29 | 50% | 33 | 57% | 33 | 57% | | East Sussex Healthcare NHS Trust | Regional East Sussex Pulmonary Service (RESPS) | 35 | 14 | 42% | 31 | 91% | 22 | 67% | 22 | 100% | 5 | 23% | 15 | 68% | | Trust / health board name | Service name | Cases audited | Start date within 90 days of receipt of referral\* | Patients undertaking practice exercise test | Patients enrolled for PR who subsequently have a discharge assessment | Patients with a discharge assessment who received a written individualised exercise plan | Improvement in exercise capacity | Improvement in health status | |---------------------------|--------------|---------------|-----------------------------------------------|---------------------------------------------|-------------------------------------------------|-------------------------------------------------|-----------------------------|-----------------------------| | National QI aim | | | | | | | | | | National result | | 2,792 | 58% | 2,338 | 42% | 3,848 | 69% | 3,052 | 79% | 2,169 | 60% | 2,438 | 70% | | Essex Partnership University NHS Foundation Trust | EPUT Pulmonary Rehabilitation Programme | 23 | 12 | 57% | \<5 | - | 19 | 83% | 0 | 0% | 7 | 37% | 11 | 58% | | First Community Health and Care CIC | First Community Health and Care – Surrey Community Respiratory Service | 12 | \<5 | - | 11 | 100% | 8 | 73% | 8 | 100% | \<5 | - | \<5 | - | | Frimley Health NHS Foundation Trust | AIR Service | 44 | 14 | 78% | 25 | 61% | 26 | 81% | 26 | 100% | 21 | 81% | 24 | 92% | | Gateshead Health NHS Foundation Trust | Gateshead Acute Pulmonary Rehabilitation Service | 24 | \<5 | - | 0 | 0% | 8 | 67% | 0 | 0% | \<5 | - | 5 | 83% | | George Eliot Hospital NHS Trust | George Eliot Hospital Pulmonary Rehabilitation – Physiotherapy | 10 | 5 | 62% | 0 | 0% | 10 | 100% | 7 | 70% | 8 | 80% | 5 | 71% | | Gloucestershire Care Services NHS Trust | One Gloucestershire Respiratory Service | 40 | 21 | 66% | \<5 | - | 29 | 74% | \<5 | - | 17 | 59% | 23 | 82% | | Trust / health board name | Service name | Cases audited | Start date within 90 days of receipt of referral\* | Patients undertaking practice exercise test | Patients enrolled for PR who subsequently have a discharge assessment | Patients with a discharge assessment who received a written individualised exercise plan | Improvement in exercise capacity | Improvement in health status | |---------------------------|--------------|---------------|-----------------------------------------------|---------------------------------------------|-------------------------------------------------|-------------------------------------------------|-----------------------------|-----------------------------| | National QI aim | | | 85% | 100% | 70% | - | - | - | | National result | | 2,792 | 58% | 2,338 | 42% | 3,848 | 69% | 3,052 | 79% | 2,169 | 60% | 2,438 | 70% | | Guy’s and St Thomas’ NHS Foundation Trust | St Thomas’ Hospital Pulmonary Rehabilitation Programme | 55 | 15 | 48% | 37 | 80% | 18 | 46% | 18 | 100% | 8 | 44% | 5 | 28% | | Harrogate and District NHS Foundation Trust | Harrogate Respiratory and Cardiac Physiotherapy | 18 | 10 | 71% | \<5 | - | 12 | 86% | 12 | 100% | 10 | 91% | 10 | 100% | | Hertfordshire Community NHS Trust | Hertfordshire Community Pulmonary Rehab Service | 96 | 50 | 64% | 28 | 29% | 56 | 62% | 54 | 96% | 32 | 59% | 40 | 73% | | Homerton University Hospital NHS Foundation Trust | Homerton Adult Cardiorespiratory Enhanced and Responsive service (ACERs) | 18 | 6 | 43% | 15 | 88% | 7 | 41% | 7 | 100% | \<5 | - | \<5 | - | | Trust / health board name | Service name | Cases audited | Start date within 90 days of receipt of referral\* | Patients undertaking practice exercise test | Patients enrolled for PR who subsequently have a discharge assessment | Patients with a discharge assessment who received a written individualised exercise plan | Improvement in exercise capacity | Improvement in health status | |---------------------------|--------------|---------------|-----------------------------------------------|---------------------------------------------|-------------------------------------------------|-----------------------------------------------------------------|-----------------------------|-----------------------------| | National QI aim | | | | | | | | | | National result | | 2,792 | 58% | 2,338 | 42% | 3,848 | 69% | 3,052 | 79% | 2,169 | 60% | 2,438 | 70% | | Hounslow and Richmond Community Healthcare NHS Trust | Richmond Respiratory Care Team | 15 | 12 | 86% | 15 | 100% | 11 | 73% | 11 | 100% | 6 | 55% | 5 | 45% | | Imperial College Healthcare NHS Trust | Central and West London Pulmonary Rehabilitation Service | 26 | \<5 | - | 25 | 96% | 19 | 76% | 19 | 100% | 7 | 37% | 18 | 95% | | Imperial College Healthcare NHS Trust | Hammersmith & Fulham Cardio-Respiratory Service | 20 | 6 | 40% | 18 | 100% | 6 | 40% | 6 | 100% | \<5 | - | 6 | 100% | | Isle of Wight NHS Trust | St Mary’s Hospital Pulmonary Rehabilitation Programme | 13 | \<5 | - | 0 | 0% | 12 | 92% | 0 | 0% | \<5 | - | 6 | 50% | | James Paget University Hospitals NHS Foundation Trust | BEET: Breathing, Exercise, Education Training | 22 | 15 | 71% | - | - | 19 | 86% | 14 | 74% | - | - | 13 | 93% | | Trust / health board name | Service name | Cases audited | Start date within 90 days of receipt of referral\* | Patients undertaking practice exercise test | Patients enrolled for PR who subsequently have a discharge assessment | Patients with a discharge assessment who received a written individualised exercise plan | Improvement in exercise capacity | Improvement in health status | |---------------------------|--------------|---------------|-----------------------------------------------|---------------------------------------------|-------------------------------------------------|-------------------------------------------------|---------------------------------|---------------------------------| | National QI aim | | | | | | | | | | National result | | 2,792 | 58% | 2,338 | 42% | 3,848 | 69% | 3,052 | 79% | 2,169 | 60% | 2,438 | 70% | | Kent Community Health NHS Foundation Trust | Kent Community Health Pulmonary Rehabilitation Team | 147 | 29 | 25% | 127 | 95% | 105 | 81% | 104 | 99% | 56 | 54% | 50 | 50% | | Kettering General Hospital NHS Foundation Trust | Rocket Team Kettering General Hospital | 70 | 43 | 75% | 30 | 97% | 35 | 51% | 35 | 100% | 15 | 88% | 19 | 59% | | King's College Hospital NHS Foundation Trust | King's College Hospital Pulmonary Rehabilitation Team | 34 | \<5 | - | 0 | 0% | 16 | 53% | 12 | 75% | 8 | 50% | 8 | 53% | | Lancashire Care NHS Foundation Trust | Blackburn with Darwen Pulmonary Rehabilitation Team | 10 | 5 | 83% | \<5 | - | 7 | 78% | 7 | 100% | \<5 | - | \<5 | - | | Lancashire Care NHS Foundation Trust | Central Lancashire Pulmonary Rehabilitation Service | 53 | 22 | 49% | 37 | 71% | 32 | 60% | 32 | 100% | 15 | 48% | 17 | 89% | | Trust / health board name | Service name | Cases audited | Start date within 90 days of receipt of referral\* | Patients undertaking practice exercise test | Patients enrolled for PR who subsequently have a discharge assessment | Patients with a discharge assessment who received a written individualised exercise plan | Improvement in exercise capacity | Improvement in health status | |---------------------------|--------------|---------------|-----------------------------------------------|---------------------------------------------|-------------------------------------------------|-----------------------------------------------------------------|-----------------------------|-----------------------------| | National QI aim | | | | | | | | | | National result | | 2,792 | 58% | 2,338 | 42% | 3,848 | 69% | 3,052 | 79% | 2,169 | 60% | 2,438 | 70% | | Leeds Community Healthcare NHS Trust | Leeds Community Healthcare, Community Respiratory Service | 23 | 5 | 38% | 0 | 0% | 15 | 75% | 15 | 100% | 7 | 47% | 7 | 70% | | Leicestershire Partnership NHS Trust | Leicestershire Partnership Pulmonary Rehabilitation Team | 54 | 28 | 54% | 51 | 94% | 45 | 83% | 45 | 100% | 19 | 45% | 39 | 89% | | Lewisham and Greenwich NHS Trust | Guy’s and St Thomas’ NHS Foundation Trust | 21 | 16 | 84% | 19 | 90% | 6 | 32% | 0 | 0% | 5 | 83% | 5 | 83% | | Lincolnshire Community Health Services NHS Trust | Lincolnshire Community Health Services Pulmonary Rehabilitation Service | 12 | \<5 | - | 12 | 100% | 12 | 100% | 12 | 100% | \<5 | - | 11 | 92% | | Liverpool Heart and Chest Hospital NHS Foundation Trust | Knowsley Community Respiratory Service | 28 | 12 | 57% | 17 | 74% | 14 | 64% | 13 | 93% | 7 | 78% | 9 | 75% | | Trust / health board name | Service name | Cases audited | Start date within 90 days of receipt of referral\* | Patients undertaking practice exercise test | Patients enrolled for PR who subsequently have a discharge assessment | Patients with a discharge assessment who received a written individualised exercise plan | Improvement in exercise capacity | Improvement in health status | |---------------------------|--------------|---------------|-----------------------------------------------|---------------------------------------------|-------------------------------------------------|-----------------------------------------------------------------|-----------------------------|-----------------------------| | National QI aim | | | | | | | | | | National result | | 2,792 | 58% | 2,338 | 42% | 3,848 | 69% | 3,052 | 79% | 2,169 | 60% | 2,438 | 70% | | Liverpool Heart and Chest Hospital NHS Foundation Trust | The Breathe Programme | 56 | 40 | 87% | 0 | 0% | 25 | 50% | 21 | 84% | 7 | 50% | - | - | | Liverpool University Hospitals NHS Foundation Trust | Aintree Pulmonary Rehabilitation Programme | \<5 | \<5 | 100% | \<5 | 100% | 0 | 0% | - | - | - | - | - | - | | Livewell Southwest | Livewell SW Community Respiratory Service | 23 | 18 | 86% | 0 | 0% | 16 | 70% | 15 | 94% | 14 | 93% | 9 | 60% | | Locala Community Partnerships CIC | Greater Huddersfield Pulmonary Rehabilitation Service | 14 | 10 | 83% | 0 | 0% | 10 | 71% | 6 | 60% | \<5 | - | 6 | 86% | | London North West University Healthcare NHS Trust | Brent Pulmonary Rehabilitation Service | \<5 | \<5 | 100% | \<5 | 100% | \<5 | 100% | \<5 | 100% | \<5 | 100% | \<5 | - | | Trust / health board name | Service name | Cases audited | Start date within 90 days of receipt of referral\* | Patients undertaking practice exercise test | Patients enrolled for PR who subsequently have a discharge assessment | Patients with a discharge assessment who received a written individualised exercise plan | Improvement in exercise capacity | Improvement in health status | |---------------------------|--------------|---------------|-----------------------------------------------|---------------------------------------------|-------------------------------------------------|-----------------------------------------------------------------|-----------------------------|-----------------------------| | National QI aim | | | | | | | | | | National result | | 2,792 | 58% | 2,338 | 42% | 3,848 | 69% | 3,052 | 79% | 2,169 | 60% | 2,438 | 70% | | London North West University Healthcare NHS Trust | Ealing Pulmonary Rehabilitation service | \<5 | \<5 | 100% | \<5 | - | \<5 | - | 100% | \<5 | 100% | \<5 | 100% | | Luton and Dunstable University Hospital NHS Foundation Trust | Luton and Dunstable Hospital Pulmonary Rehabilitation Service | 70 | 36 | 63% | 13 | 19% | 53 | 76% | 52 | 98% | 26 | 49% | 30 | 57% | | Maidstone and Tunbridge Wells NHS Trust | West Kent Pulmonary Rehabilitation Service | 41 | 7 | 21% | 33 | 82% | 34 | 85% | 33 | 97% | 10 | 29% | 19 | 56% | | Manchester University NHS Foundation Trust | Manchester Community Respiratory Service | 36 | 21 | 88% | 0 | 0% | 14 | 54% | 5 | 36% | 7 | 54% | 9 | 69% | | Manchester University NHS Foundation Trust | Manchester Integrated Lung Service – Central site | 24 | 13 | 76% | 0 | 0% | 10 | 43% | \<5 | - | 7 | 78% | \<5 | - | | Trust / health board name | Service name | Cases audited | Start date within 90 days of receipt of referral\* | Patients undertaking practice exercise test | Patients enrolled for PR who subsequently have a discharge assessment | Patients with a discharge assessment who received a written individualised exercise plan | Improvement in exercise capacity | Improvement in health status | |---------------------------|--------------|---------------|-----------------------------------------------|---------------------------------------------|-------------------------------------------------|-------------------------------------------------|-----------------------------|-----------------------------| | National QI aim | | | | | | | | | | National result | | 2,792 | 58% | 2,338 | 42% | 3,848 | 69% | 3,052 | 79% | 2,169 | 60% | 2,438 | 70% | | Manchester University NHS Foundation Trust | Manchester Royal Infirmary Pulmonary Rehabilitation Service | 9 | 5 | 83% | \<5 | - | \<5 | - | \<5 | 50 | \<5 | - | \<5 | 100% | | Medway Community Healthcare | Medway Community Respiratory Team | 45 | 19 | 43% | 45 | 100% | 32 | 73% | 32 | 100% | 23 | 74% | 24 | 75% | | Mersey Care NHS Foundation Trust | Sefton Community Respiratory Service | 24 | 6 | 32% | 0 | 0% | 15 | 62% | 15 | 100% | 12 | 80% | 10 | 67% | | Mid Cheshire Hospitals NHS Foundation Trust | Central Cheshire Integrated Care Partnership Pulmonary Rehabilitation Service | 32 | \<5 | - | 0 | 0% | 27 | 84% | 14 | 52% | 12 | 44% | 0 | 0% | | Mid Yorkshire Hospitals NHS Trust | Mid Yorkshire Therapy Services – Community Pulmonary Rehabilitation | 49 | 33 | 85% | 49 | 100% | 24 | 49% | 24 | 100% | 15 | 65% | 22 | 96% | | Midlands Partnership NHS Foundation Trust | Midland Partnership South Respiratory Team | 23 | 17 | 100% | 11 | 48% | 20 | 87% | 20 | 100% | 11 | 55% | 15 | 75% | | Trust / health board name | Service name | Cases audited | Start date within 90 days of receipt of referral\* | Patients undertaking practice exercise test | Patients enrolled for PR who subsequently have a discharge assessment | Patients with a discharge assessment who received a written individualised exercise plan | Improvement in exercise capacity | Improvement in health status | |---------------------------|--------------|---------------|-----------------------------------------------|---------------------------------------------|-------------------------------------------------|-------------------------------------------------|-----------------------------|-----------------------------| | National QI aim | | | | | | | | | | National result | | 2,792 | 58% | 2,338 | 42% | 3,848 | 69% | 3,052 | 79% | 2,169 | 60% | 2,438 | 70% | | Midlands Partnership NHS Foundation Trust | Midlands Partnership – North Staffordshire and Stoke on Trent Pulmonary Rehabilitation Team | 102 | 29 | 41% | 25 | 26% | 57 | 61% | 57 | 100% | 47 | 82% | 48 | 84% | | Norfolk and Norwich University Hospitals NHS Foundation Trust | Norfolk and Norwich Pulmonary Rehabilitation Service | 6 | 0 | 0% | 6 | 100% | \<5 | - | 0 | 0% | \<5 | - | \<5 | - | | Norfolk Community Health and Care NHS Trust | Norfolk Community Pulmonary Rehabilitation Service | 75 | 44 | 60% | 0 | 0% | 74 | 99% | 0 | 0% | 46 | 63% | 56 | 76% | | North Bristol NHS Trust | North Bristol Lung Exercise and Education Programme (LEEP) | 46 | 23 | 66% | 0 | 0% | 30 | 67% | 30 | 100% | 23 | 79% | 28 | 93% | | North Cumbria Integrated Care NHS Foundation Trust | Community COPD Team Carlisle | 26 | 11 | 61% | 25 | 100% | 18 | 69% | 17 | 94% | 7 | 41% | 15 | 83% | | Trust / health board name | Service name | Cases audited | Start date within 90 days of receipt of referral\* | Patients undertaking practice exercise test | Patients enrolled for PR who subsequently have a discharge assessment | Patients with a discharge assessment who received a written individualised exercise plan | Improvement in exercise capacity | Improvement in health status | |---------------------------|--------------|---------------|-----------------------------------------------|---------------------------------------------|-------------------------------------------------|-------------------------------------------------|-----------------------------|-----------------------------| | National QI aim | | 2,792 | 58% | 100% | 70% | - | - | - | | North Cumbria Integrated Care NHS Foundation Trust | North Cumbria Hospitals Pulmonary Rehabilitation Programme | 12 | \<5 | 100% | 6 | 100% | \<5 | - | \<5 | 100% | 0 | 0% | \<5 | 100% | | North Cumbria Integrated Care NHS Foundation Trust | Solway Community Respiratory Team | 11 | 0 | 0% | 8 | 80% | 7 | 78% | 7 | 100% | \<5 | - | \<5 | 100% | | North Cumbria Integrated Care NHS Foundation Trust | West Cumbria Community Respiratory Team | 38 | 6 | 22% | 37 | 97% | 29 | 78% | 28 | 97% | 13 | 45% | 20 | 74% | | North East London NHS Foundation Trust | Havering Respiratory Team | 24 | 22 | 100% | 23 | 96% | 13 | 54% | 13 | 100% | 10 | 83% | 5 | 38% | | North East London NHS Foundation Trust | Integrated Respiratory Service – Basildon, Brentwood and Thurrock | 8 | \<5 | - | \<5 | - | 7 | 88% | 0 | 0% | \<5 | - | \<5 | - | | Trust / health board name | Service name | Cases audited | Start date within 90 days of receipt of referral\* | Patients undertaking practice exercise test | Patients enrolled for PR who subsequently have a discharge assessment | Patients with a discharge assessment who received a written individualised exercise plan | Improvement in exercise capacity | Improvement in health status | |---------------------------|--------------|---------------|-----------------------------------------------|---------------------------------------------|-------------------------------------------------|-----------------------------------------------------------------|-----------------------------|-----------------------------| | National QI aim | | 2,792 | 58% | 2,338 | 42% | 3,848 | 69% | 3,052 | 79% | 2,169 | 60% | 2,438 | 70% | | North East London NHS Foundation Trust | Redbridge Respiratory Service | 30 | \<5 | - | 0 | 0% | 10 | 67% | 10 | 100% | \<5 | - | 6 | 60% | | North East London NHS Foundation Trust | Respiratory Services - Barking and Dagenham | 14 | \<5 | - | \<5 | - | 6 | 43% | \<5 | - | 5 | 83% | - | - | | North East London NHS Foundation Trust | Waltham Forest Pulmonary Rehabilitation Service | 34 | 20 | 71% | 0 | 0% | 8 | 28% | 8 | 100% | \<5 | - | \<5 | - | | North Somerset Community Partnership Community Interest Company | North Somerset Pulmonary Rehabilitation | 36 | 8 | 24% | 0 | 0% | 25 | 76% | 25 | 100% | 15 | 62% | 24 | 96% | | North Tees and Hartlepool NHS Foundation Trust | North Tees and Hartlepool Pulmonary Rehabilitation Service | 75 | 36 | 59% | 0 | 0% | 40 | 56% | 40 | 100% | 21 | 54% | 17 | 44% | | Trust / health board name | Service name | Cases audited | Start date within 90 days of receipt of referral\* | Patients undertaking practice exercise test | Patients enrolled for PR who subsequently have a discharge assessment | Patients with a discharge assessment who received a written individualised exercise plan | Improvement in exercise capacity | Improvement in health status | |---------------------------|--------------|---------------|-----------------------------------------------|---------------------------------------------|-------------------------------------------------|-------------------------------------------------|-----------------------------|-----------------------------| | National QI aim | | | | | | | | | | National result | | 2,792 | 58% | 2,338 | 42% | 3,848 | 69% | 3,052 | 79% | 2,169 | 60% | 2,438 | 70% | | North West Anglia NHS Foundation Trust | Peterborough Pulmonary Rehabilitation Service | 25 | 16 | 64% | 0 | 0% | 14 | 56% | 14 | 100% | 14 | 100% | 10 | 71% | | North West Boroughs Healthcare NHS Foundation Trust | St. Helens Pulmonary Rehabilitation Service | 62 | 37 | 74% | \<5 | - | 27 | 44% | 25 | 93% | 8 | 38% | 17 | 65% | | Northampton General Hospital NHS Trust | Restart Team – Northampton General Hospital | 28 | 10 | 71% | 0 | 0% | 19 | 68% | 19 | 100% | 10 | 62% | 11 | 69% | | Northern Devon Healthcare NHS Trust | North Devon Pulmonary Rehabilitation Service | 9 | \<5 | - | 0 | 0% | 7 | 88% | 5 | 71% | \<5 | - | \<5 | - | | Northumbria Healthcare NHS Foundation Trust | Northumbria Healthcare Pulmonary Rehabilitation Service | 81 | 29 | 83% | 53 | 88% | 32 | 59% | 28 | 88% | 27 | 84% | 29 | 91% | | Nottingham Citycare Partnership | Nottingham Integrated Respiratory Service | 59 | 39 | 68% | 51 | 86% | 44 | 75% | 44 | 100% | 26 | 62% | 30 | 68% | | Trust / health board name | Service name | Cases audited | Start date within 90 days of receipt of referral\* | Patients undertaking practice exercise test | Patients enrolled for PR who subsequently have a discharge assessment | Patients with a discharge assessment who received a written individualised exercise plan | Improvement in exercise capacity | Improvement in health status | |--------------------------|--------------|---------------|-----------------------------------------------|---------------------------------------------|-------------------------------------------------|-----------------------------------------------------------------|-----------------------------|-----------------------------| | National QI aim | | | | | | | | | | National result | | 2,792 | 58% | 2,338 | 42% | 3,848 | 69% | 3,052 | 79% | 2,169 | 60% | 2,438 | 70% | | Nottinghamshire Healthcare NHS Foundation Trust | Mansfield and Ashfield Respiratory Service | 21 | 13 | 87% | 0 | 0% | 18 | 90% | 18 | 100% | 5 | 38% | 12 | 80% | | Nottinghamshire Healthcare NHS Foundation Trust | Nottingham North and East Adult Community Services | 14 | 6 | 43% | 10 | 71% | 10 | 71% | 10 | 100% | 7 | 70% | 9 | 90% | | Nottinghamshire Healthcare NHS Foundation Trust | Rushcliffe Cardiorespiratory service | 21 | \<5 | - | 17 | 89% | 12 | 75% | 12 | 100% | 8 | 73% | 10 | 83% | | Oxford Health NHS Foundation Trust | Oxfordshire Pulmonary Rehabilitation Service | 59 | 6 | 12% | \<5 | - | 50 | 86% | 30 | 60% | 27 | 59% | 23 | 50% | | Oxleas NHS Foundation Trust | Greenwich Pulmonary Rehabilitation Team | 17 | 9 | 100% | 12 | 100% | 8 | 89% | 8 | 100% | 6 | 75% | - | - | | Pennine Acute Hospitals NHS Trust | Acute Respiratory Assessment Service (ARAS) COPD support team – North Manchester | 40 | 18 | 50% | 0 | 0% | 16 | 42% | 16 | 100% | 15 | 94% | 13 | 81% | | Trust / health board name | Service name | Cases audited | Start date within 90 days of receipt of referral\* | Patients undertaking practice exercise test | Patients enrolled for PR who subsequently have a discharge assessment | Patients with a discharge assessment who received a written individualised exercise plan | Improvement in exercise capacity | Improvement in health status | |---------------------------|--------------|---------------|-----------------------------------------------|---------------------------------------------|-------------------------------------------------|-------------------------------------------------|-----------------------------|-----------------------------| | National QI aim | | 2,792 | 58% | 100% | 70% | - | - | - | | Pennine Acute Hospitals NHS Trust | Enhanced Respiratory Service (ERS) – Rochdale Infirmary | \<5 | - | - | 0 | 0% | \<5 | 100% | \<5 | 100% | \<5 | - | - | - | | Pennine Acute Hospitals NHS Trust | Pennine Lung Service | 51 | 14 | 29% | 14 | 27% | 23 | 47% | 18 | 78% | 13 | 57% | 14 | 67% | | Pennine Acute Hospitals NHS Trust | Pennine Pulmonary Rehabilitation – Fairfield Hospital | 6 | 0 | 0% | 0 | 0% | 5 | 83% | 0 | 0% | \<5 | - | \<5 | - | | Pennine Care NHS Foundation Trust | Trafford Pulmonary Rehabilitation Service | 38 | 10 | 29% | \<5 | - | 25 | 68% | 25 | 100% | 18 | 75% | 17 | 85% | | Provide | Provide – Cambridgeshire Pulmonary Rehabilitation | 15 | 14 | 93% | 0 | 0% | 15 | 100% | 0 | 0% | 9 | 60% | 7 | 47% | | Provide | Provide – Mid-Essex Pulmonary Rehabilitation | 33 | 19 | 95% | 29 | 94% | 29 | 94% | 14 | 48% | 12 | 44% | 17 | 61% | | Respiricare Limited | Swale Pulmonary Rehabilitation | 14 | - | - | 14 | 100% | 13 | 93% | 13 | 100% | 10 | 77% | 10 | 77% | | Trust / health board name | Service name | Cases audited | Start date within 90 days of receipt of referral\* | Patients undertaking practice exercise test | Patients enrolled for PR who subsequently have a discharge assessment | Patients with a discharge assessment who received a written individualised exercise plan | Improvement in exercise capacity | Improvement in health status | |--------------------------|--------------|---------------|-----------------------------------------------|---------------------------------------------|-------------------------------------------------|-----------------------------------------------------------------|-----------------------------|-----------------------------| | National QI aim | | 2,792 | 58% | 2,338 | 42% | 3,848 | 69% | 3,052 | 79% | 2,169 | 60% | 2,438 | 70% | | Royal Berkshire NHS Foundation Trust | Royal Berkshire Hospital Pulmonary Rehabilitation Service | 6 | \<5 | - | 6 | 100% | \<5 | - | \<5 | 100% | \<5 | - | \<5 | 100% | | Royal Brompton & Harefield NHS Foundation Trust | Harefield Hospital Pulmonary Rehabilitation | 78 | 46 | 96% | 78 | 100% | 51 | 70% | 51 | 100% | 19 | 37% | 48 | 94% | | Royal Brompton & Harefield NHS Foundation Trust | Royal Brompton Pulmonary Rehabilitation Service | \<5 | \<5 | 100% | \<5 | 100% | \<5 | 100% | 0 | 0% | 0 | 0% | \<5 | 100% | | Royal Devon and Exeter NHS Foundation Trust | Royal Devon and Exeter Pulmonary Rehabilitation/Physiotherapy Service | 7 | \<5 | - | \<5 | - | 7 | 100% | 7 | 100% | \<5 | - | 5 | 83% | | Royal Surrey County Hospital NHS Foundation Trust | Royal Surrey Pulmonary Rehabilitation Programme | 24 | 17 | 81% | 24 | 100% | 22 | 92% | 22 | 100% | 15 | 68% | \<5 | - | | Trust / health board name | Service name | Cases audited | Start date within 90 days of receipt of referral\* | Patients undertaking practice exercise test | Patients enrolled for PR who subsequently have a discharge assessment | Patients with a discharge assessment who received a written individualised exercise plan | Improvement in exercise capacity | Improvement in health status | |---------------------------|--------------|---------------|-----------------------------------------------|---------------------------------------------|-------------------------------------------------|---------------------------------------------------------------------------------|---------------------------------|-----------------------------| | National QI aim | | 2,792 | 58% | 2,338 | 42% | 3,848 | 69% | 3,052 | 79% | 2,169 | 60% | 2,438 | 70% | | Royal United Hospitals Bath NHS Foundation Trust | RUH Respiratory Outpatient Department | \<5 | \<5 | 100% | 0 | 0% | \<5 | 100% | 0 | 0% | \<5 | - | - | - | | Salford Royal NHS Foundation Trust | Salford’s Breathing Better Pulmonary Rehabilitation Programme | 25 | 12 | 71% | 0 | 0% | 21 | 95% | 21 | 100% | 8 | 38% | 19 | 90% | | Salisbury NHS Foundation Trust | Salisbury Lung Exercise and Education Programme (LEEP) | 14 | 0 | 0% | 13 | 93% | 8 | 57% | 7 | 88% | \<5 | - | 8 | 100% | | Sandwell and West Birmingham Hospitals NHS Trust | Sandwell and West Birmingham Community Respiratory Service | 27 | 16 | 73% | 27 | 100% | 18 | 67% | 17 | 94% | 10 | 56% | 17 | 94% | | Sheffield Teaching Hospitals NHS Foundation Trust | Sheffield Community Pulmonary Rehabilitation Service | 73 | 47 | 90% | 5 | 8% | 34 | 51% | 34 | 100% | 14 | 45% | 14 | 58% | | Trust / health board name | Service name | Cases audited | Start date within 90 days of receipt of referral\* | Patients undertaking practice exercise test | Patients enrolled for PR who subsequently have a discharge assessment | Patients with a discharge assessment who received a written individualised exercise plan | Improvement in exercise capacity | Improvement in health status | |---------------------------|--------------|---------------|-----------------------------------------------|---------------------------------------------|-------------------------------------------------|-------------------------------------------------|-----------------------------|-----------------------------| | National QI aim | | | | | | | | | | National result | | 2,792 | 58% | 2,338 | 42% | 3,848 | 69% | 3,052 | 79% | 2,169 | 60% | 2,438 | 70% | | Shropshire Community Health NHS Trust | Shropshire Pulmonary Rehabilitation | 30 | 12 | 44% | 0 | 0% | 26 | 90% | \<5 | - | 18 | 75% | 19 | 73% | | Sirona Care & Health | South Gloucestershire Pulmonary Rehabilitation | 15 | 12 | 92% | 0 | 0% | 10 | 67% | 7 | 70% | 8 | 80% | 9 | 90% | | Solent NHS Trust | Hampshire Pulmonary Rehabilitation Programme | \<5 | \<5 | - | 0 | 0% | \<5 | 100% | \<5 | 100% | \<5 | - | \<5 | - | | Solent NHS Trust | Portsmouth Pulmonary Rehabilitation Programme | \<5 | \<5 | - | 0 | 0% | \<5 | - | \<5 | 100% | 0 | 0% | 0 | 0% | | Solent NHS Trust | Southampton Integrated COPD Team | 60 | 40 | 91% | 40 | 75% | 31 | 63% | 29 | 94% | 21 | 68% | 20 | 80% | | South Tyneside and Sunderland NHS Foundation Trust | South Tyneside Pulmonary Rehabilitation Programme (Acute) | 25 | 19 | 90% | 0 | 0% | 12 | 50% | 12 | 100% | 7 | 64% | 5 | 42% | | Trust / health board name | Service name | Cases audited | Start date within 90 days of receipt of referral\* | Patients undertaking practice exercise test | Patients enrolled for PR who subsequently have a discharge assessment | Patients with a discharge assessment who received a written individualised exercise plan | Improvement in exercise capacity | Improvement in health status | |--------------------------|--------------|---------------|-----------------------------------------------|---------------------------------------------|-------------------------------------------------|-------------------------------------------------|-----------------------------|-----------------------------| | National QI aim | | 2,792 | 58% | 100% | 70% | - | - | - | | South Tyneside and Sunderland NHS Foundation Trust | Sunderland Community Pulmonary Rehabilitation Programme | 18 | 10 | 83% | 0 | 0% | 7 | 54% | 6 | 86% | \<5 | 100% | \<5 | - | | South Warwickshire NHS Foundation Trust | South Warwickshire Physiotherapy Services | 9 | \<5 | - | 0 | 0% | 7 | 78% | 7 | 100% | \<5 | - | - | - | | South West Yorkshire Partnership NHS Foundation Trust | South West Yorkshire Cardiac and Pulmonary Rehabilitation Service | 32 | 27 | 87% | 26 | 87% | 27 | 84% | 27 | 100% | 23 | 96% | 27 | 100% | | Southend University Hospital NHS Foundation Trust | South East Essex Pulmonary Rehabilitation Service | 92 | 73 | 96% | 0 | 0% | 72 | 79% | 72 | 100% | 54 | 77% | 51 | 72% | | Southern Health NHS Foundation Trust | West Hampshire Community Integrated Respiratory Service | 60 | 40 | 70% | 34 | 59% | 40 | 69% | 40 | 100% | 23 | 68% | 16 | 41% | | Trust / health board name | Service name | Cases audited | Start date within 90 days of receipt of referral\* | Patients undertaking practice exercise test | Patients enrolled for PR who subsequently have a discharge assessment | Patients with a discharge assessment who received a written individualised exercise plan | Improvement in exercise capacity | Improvement in health status | |---------------------------|--------------|---------------|-----------------------------------------------|---------------------------------------------|-------------------------------------------------|-------------------------------------------------|-----------------------------|-----------------------------| | National QI aim | | | | | | | | | | National result | | 2,792 | 58% | 2,338 | 42% | 3,848 | 69% | 3,052 | 79% | 2,169 | 60% | 2,438 | 70% | | Southport and Ormskirk Hospital NHS Trust | West Lancashire Pulmonary Rehabilitation | 5 | 5 | 100% | 0 | 0% | 5 | 100% | 5 | 100% | \<5 | 100% | 5 | 100% | | St George's University Hospitals NHS Foundation Trust | Wandsworth Pulmonary Rehabilitation Service | 7 | \<5 | 100% | 5 | 71% | 5 | 71% | \<5 | - | \<5 | - | \<5 | - | | Stockport NHS Foundation Trust | Stockport Pulmonary & Heart Failure Rehabilitation Service | 40 | 19 | 59% | 0 | 0% | 23 | 64% | 22 | 96% | 12 | 55% | 8 | 38% | | Sussex Community NHS Foundation Trust | COPD Coastal Service | \<5 | 0 | 0% | 0 | 0% | \<5 | - | 0 | 0% | 0 | 0% | \<5 | 100% | | Sussex Community NHS Foundation Trust | Crawley Horsham and Mid Sussex COPD Adult Community Services | 43 | 28 | 85% | 41 | 100% | 22 | 63% | 22 | 100% | \<5 | - | 15 | 71% | | Sussex Community NHS Foundation Trust | Sussex Community Respiratory Service Brighton and Hove | 23 | 17 | 89% | 21 | 95% | 12 | 63% | 12 | 100% | 6 | 50% | 9 | 75% | | Trust / health board name | Service name | Cases audited | Start date within 90 days of receipt of referral\* | Patients undertaking practice exercise test | Patients enrolled for PR who subsequently have a discharge assessment | Patients with a discharge assessment who received a written individualised exercise plan | Improvement in exercise capacity | Improvement in health status | |---------------------------|--------------|---------------|-----------------------------------------------|---------------------------------------------|-------------------------------------------------|-----------------------------------------------------------------|-----------------------------|-----------------------------| | National QI aim | | | | | | | | | | National result | | 2,792 | 58% | 2,338 | 42% | 3,848 | 69% | 3,052 | 79% | 2,169 | 60% | 2,438 | 70% | | Sussex Community NHS Foundation Trust | The High Weald Lewis and Haven Community Respiratory Service | 20 | 12 | 80% | 18 | 100% | 9 | 56% | \<5 | - | 6 | 67% | 8 | 100% | | Tameside and Glossop Integrated Care NHS Foundation Trust | Tameside and Glossop Pulmonary Rehabilitation | 14 | 0 | 0% | 7 | 88% | \<5 | - | \<5 | 100% | \<5 | - | \<5 | 100% | | The Dudley Group NHS Foundation Trust | Dudley Pulmonary Rehabilitation Programme | 53 | 39 | 87% | 33 | 66% | 39 | 76% | 38 | 97% | 15 | 41% | 36 | 95% | | The Newcastle Upon Tyne Hospitals NHS Foundation Trust | The Newcastle Hospitals Respiratory Services | 15 | 7 | 70% | 0 | 0% | 8 | 57% | 8 | 100% | 5 | 62% | \<5 | - | | The Rotherham NHS Foundation Trust | Rotherham Breathing Space | 71 | 30 | 58% | 69 | 99% | 55 | 77% | 53 | 96% | 34 | 63% | 41 | 75% | | Trust / health board name | Service name | Cases audited | Start date within 90 days of receipt of referral\* | Patients undertaking practice exercise test | Patients enrolled for PR who subsequently have a discharge assessment | Patients with a discharge assessment who received a written individualised exercise plan | Improvement in exercise capacity | Improvement in health status | |---------------------------|--------------|---------------|-----------------------------------------------|---------------------------------------------|-------------------------------------------------|-------------------------------------------------|-----------------------------|-----------------------------| | National QI aim | | | | | | | | | | National result | | 2,792 | 58% | 2,338 | 42% | 3,848 | 69% | 3,052 | 79% | 2,169 | 60% | 2,438 | 70% | | The Royal Bournemouth And Christchurch Hospitals NHS Foundation Trust | The Bournemouth Hospital’s Pulmonary Rehabilitation Service | \<5 | \<5 | 100% | \<5 | 100% | 0 | 0% | - | - | - | - | - | - | | The Royal Marsden NHS Foundation Trust | Sutton Community Respiratory Service | 40 | 34 | 92% | 37 | 92% | 27 | 69% | 27 | 100% | 17 | 63% | 25 | 93% | | The Royal Wolverhampton NHS Trust | Wolverhampton Pulmonary Rehabilitation Service | 8 | 8 | 100% | 0 | 0% | \<5 | - | 0 | 0% | \<5 | - | - | - | | Torbay and South Devon NHS Foundation Trust | Torbay and South Devon Pulmonary Rehabilitation Programme | 8 | \<5 | - | 0 | 0% | 6 | 75% | 6 | 100% | \<5 | - | 5 | 83% | | University Hospital Southampton NHS Foundation Trust | University Hospital Southampton Pulmonary Rehabilitation Programme | 6 | \<5 | - | 5 | 83% | \<5 | - | \<5 | 100% | \<5 | - | \<5 | 100% | | Trust / health board name | Service name | Cases audited | Start date within 90 days of receipt of referral\* | Patients undertaking practice exercise test | Patients enrolled for PR who subsequently have a discharge assessment | Patients with a discharge assessment who received a written individualised exercise plan | Improvement in exercise capacity | Improvement in health status | |---------------------------|--------------|---------------|-----------------------------------------------|---------------------------------------------|-------------------------------------------------|-----------------------------------------------------------------|-----------------------------|-----------------------------| | National QI aim | | | | | | | | | | National result | | 2,792 | 58% | 2,338 | 42% | 3,848 | 69% | 3,052 | 79% | 2,169 | 60% | 2,438 | 70% | | University Hospitals | Solihull Community Respiratory Team | 42 | 16 | 73% | 29 | 88% | 14 | 47% | 14 | 100% | 12 | 86% | 14 | 100% | | Birmingham NHS Foundation Trust | | | | | | | | | | University Hospitals | University Hospitals Birmingham HGS Pulmonary Rehabilitation Programme | 72 | 14 | 25% | 65 | 96% | 33 | 52% | 32 | 97% | 19 | 58% | 29 | 94% | | Birmingham NHS Foundation Trust | | | | | | | | | | University Hospitals of | Derby and Burton ImpACT+ | 54 | 13 | 28% | 0 | 0% | 37 | 70% | 32 | 86% | 25 | 74% | 32 | 100% | | Derby and Burton NHS Foundation Trust | | | | | | | | | | University Hospitals of | Glenfield and Leicester Hospitals Pulmonary Rehabilitation Programme | 91 | 13 | 35% | 45 | 90% | 26 | 52% | 23 | 88% | 10 | 43% | 19 | 90% | | Leicester NHS Trust | | | | | | | | | | Virgin Care Ltd | Surrey Heath Respiratory Care Team | 14 | \<5 | - | 14 | 100% | 12 | 86% | 12 | 100% | - | - | 10 | 83% | | Trust / health board name | Service name | Cases audited | Start date within 90 days of receipt of referral\* | Patients undertaking practice exercise test | Patients enrolled for PR who subsequently have a discharge assessment | Patients with a discharge assessment who received a written individualised exercise plan | Improvement in exercise capacity | Improvement in health status | |---------------------------|--------------|---------------|-----------------------------------------------|---------------------------------------------|-------------------------------------------------|-----------------------------------------------------------------|-----------------------------|-----------------------------| | National QI aim | | 2,792 | 58% | 100% | 70% | - | - | - | | Virgin Care Ltd | Virgin Care Community Respiratory Service - Bath and North East Somerset | 24 | 11 | 55% | 0 | 0% | 16 | 73% | 6 | 38% | 7 | 44% | 7 | 64% | | Walsall Healthcare NHS Trust | Walsall Pulmonary Rehabilitation Service | \<5 | \<5 | - | \<5 | - | 0 | 0% | - | - | - | - | - | - | | Warrington and Halton Hospitals NHS Foundation Trust | The Warrington & Halton Pulmonary Rehabilitation Service | 69 | 40 | 65% | \<5 | - | 45 | 66% | 44 | 98% | 18 | 43% | 20 | 48% | | West Suffolk NHS Foundation Trust | West Suffolk Pulmonary Rehabilitation Service | 44 | 20 | 49% | 8 | 20% | 39 | 89% | 23 | 59% | 18 | 50% | 28 | 72% | | Western Sussex Hospitals NHS Foundation Trust | St Richards Hospital Pulmonary Rehabilitation | 32 | 27 | 87% | 32 | 100% | 24 | 75% | 24 | 100% | 20 | 83% | 19 | 79% | | Trust / health board name | Service name | Cases audited | Start date within 90 days of receipt of referral\* | Patients undertaking practice exercise test | Patients enrolled for PR who subsequently have a discharge assessment | Patients with a discharge assessment who received a written individualised exercise plan | Improvement in exercise capacity | Improvement in health status | |---------------------------|--------------|---------------|-----------------------------------------------|---------------------------------------------|-------------------------------------------------|-------------------------------------------------|-----------------------------|-----------------------------| | National QI aim | | | | | | | | | | National result | | 2,792 | 58% | 2,338 | 42% | 3,848 | 69% | 3,052 | 79% | 2,169 | 60% | 2,438 | 70% | | Western Sussex Hospitals NHS Foundation Trust | Worthing and Southlands Pulmonary Rehabilitation Programme | 34 | 21 | 72% | 34 | 100% | 22 | 69% | 22 | 100% | 9 | 41% | 17 | 85% | | Whittington Health NHS Trust | Whittington Health Pulmonary Rehabilitation | 54 | 42 | 98% | 45 | 85% | 34 | 72% | 19 | 56% | 22 | 65% | 31 | 91% | | Wiltshire Health and Care | Wiltshire Community Respiratory Team | 27 | 11 | 50% | 20 | 77% | 17 | 77% | 15 | 88% | 8 | 47% | 7 | 44% | | Wirral University Teaching Hospital NHS Foundation Trust | Wirral COPD, Pulmonary Rehabilitation & Oxygen Service | 56 | 27 | 56% | \<5 | - | 42 | 79% | 35 | 83% | 16 | 40% | 25 | 60% | | Worcestershire Acute Hospitals NHS Trust | Worcestershire COPD Team | 58 | 22 | 50% | 45 | 83% | 36 | 68% | 36 | 100% | 19 | 53% | 22 | 61% | | Trust / health board name | Service name | Cases audited | Start date within 90 days of receipt of referral\* | Patients undertaking practice exercise test | Patients enrolled for PR who subsequently have a discharge assessment | Patients with a discharge assessment who received a written individualised exercise plan | Improvement in exercise capacity | Improvement in health status | |--------------------------|--------------|---------------|-----------------------------------------------|---------------------------------------------|-------------------------------------------------|-----------------------------------------------------------------|-----------------------------|-----------------------------| | National result | | 2,792 | 58% | 100% | 70% | - | - | - | | Wrightington, Wigan and Leigh NHS Foundation Trust | Wrightington Wigan & Leigh tier 2 Respiratory Services | \<5 | 0 | 0% | 0 | 0% | - | - | - | - | - | - | | Wye Valley NHS Trust | Herefordshire Pulmonary Rehabilitation Programme | 19 | \<5 | - | 0 | 0% | 17 | 94% | 11 | 65% | 9 | 53% | 8 | 47% | | York Teaching Hospital NHS Foundation Trust | York and Selby Pulmonary Rehabilitation | \<5 | 0 | 0% | 0 | 0% | \<5 | - | 0 | 0% | \<5 | - | \<5 | 100% | | Your Healthcare | Your Healthcare Pulmonary Rehabilitation Service | 16 | 11 | 69% | 16 | 100% | 16 | 100% | 16 | 100% | 13 | 81% | 16 | 100% | | Scotland | | | | | | | | | | NHS Grampian | Aberdeen City Health and Social Care Partnership pulmonary rehabilitation | 41 | 12 | 50% | 0 | 0% | 32 | 78% | 5 | 16% | 16 | 50% | - | - | | Trust / health board name | Service name | Cases audited | Start date within 90 days of receipt of referral\* | Patients undertaking practice exercise test | Patients enrolled for PR who subsequently have a discharge assessment | Patients with a discharge assessment who received a written individualised exercise plan | Improvement in exercise capacity | Improvement in health status | |--------------------------|--------------|---------------|-----------------------------------------------|---------------------------------------------|-------------------------------------------------|-----------------------------------------------------------------|-----------------------------|-----------------------------| | National QI aim | | | | | | | | | | National result | | 2,792 | 58% | 2,338 | 42% | 3,848 | 69% | 3,052 | 79% | 2,169 | 60% | 2,438 | 70% | | NHS Grampian | Aberdeenshire Health and Social Care Partnership pulmonary rehabilitation | \<5 | \<5 | - | 0 | 0% | \<5 | 100% | 0 | 0% | \<5 | - | - | - | | NHS Grampian | Moray Health and Social Care Partnership pulmonary rehabilitation | 5 | \<5 | - | 0 | 0% | \<5 | - | \<5 | 100% | \<5 | 100% | - | - | | NHS Greater Glasgow, Clyde | Greater Glasgow and Clyde Pulmonary Rehabilitation Service | 54 | 36 | 88% | 0 | 0% | 23 | 46% | 23 | 100% | 17 | 77% | 15 | 65% | | NHS Highland | Lochaber Pulmonary Rehabilitation Service | \<5 | - | - | 0 | 0% | \<5 | 100% | 0 | 0% | \<5 | 100% | \<5 | 100% | | NHS Highland | Raigmore Pulmonary Rehabilitation Service | \<5 | 0 | 0% | 0 | 0% | \<5 | 100% | \<5 | 67 | \<5 | - | \<5 | 100% | | NHS Lanarkshire | Larnarkshire Self-Management and Pulmonary Rehabilitation | 24 | 14 | 64% | 0 | 0% | 8 | 33% | 0 | 0% | \<5 | - | \<5 | - | | Trust / health board name | Service name | Cases audited | Start date within 90 days of receipt of referral\* | Patients undertaking practice exercise test | Patients enrolled for PR who subsequently have a discharge assessment | Patients with a discharge assessment who received a written individualised exercise plan | Improvement in exercise capacity | Improvement in health status | |--------------------------|--------------|---------------|-----------------------------------------------|---------------------------------------------|-------------------------------------------------|-----------------------------------------------------------------|-----------------------------|-----------------------------| | National QI aim | | | | | | | | | | National result | | 2,792 | 58% | 2,338 | 42% | 3,848 | 69% | 3,052 | 79% | 2,169 | 60% | 2,438 | 70% | | NHS Lothian | Lothian Community Pulmonary Rehabilitation Service | 29 | \<5 | - | 0 | 0% | 19 | 73% | 19 | 100% | \<5 | 100% | 14 | 100% | | NHS Tayside | Perth and Kinross Pulmonary Rehabilitation Service | 23 | 5 | 28% | 0 | 0% | 15 | 65% | 14 | 93% | 8 | 57% | 12 | 80% | | Wales | | | | | | | | | | Aneurin Bevan University Local Health Board | Newport Pulmonary Rehabilitation | 10 | 6 | 67% | 0 | 0% | 10 | 100% | 0 | 0% | 5 | 56% | 8 | 89% | | Aneurin Bevan University Local Health Board | Ysbyty Aneurin Bevan Pulmonary Rehabilitation | 6 | 0 | 0% | 0 | 0% | \<5 | - | 0 | 0% | \<5 | - | \<5 | 100% | | Betsi Cadwaladr University Local Health Board | BCUHB – Centre Pulmonary Rehabilitation Service | 29 | \<5 | - | 29 | 100% | 19 | 66% | 19 | 100% | 11 | 58% | 16 | 84% | | Trust / health board name | Service name | Cases audited | Start date within 90 days of receipt of referral\* | Patients undertaking practice exercise test | Patients enrolled for PR who subsequently have a discharge assessment | Patients with a discharge assessment who received a written individualised exercise plan | Improvement in exercise capacity | Improvement in health status | |---------------------------|--------------|---------------|-----------------------------------------------|---------------------------------------------|-------------------------------------------------|-----------------------------------------------------------------|-----------------------------|-----------------------------| | **National QI aim** | | | | | | | | | | | | | 85% | 100% | 70% | - | - | - | | **National result** | | | 2,792 | 58% | 2,338 | 42% | 3,848 | 69% | | | | | 3,052 | 79% | 2,169 | 60% | 2,438 | 70% | | Betsi Cadwaladr University Local Health Board | BCUHB – East Pulmonary Rehabilitation Service | 22 | \<5 | - | 18 | 95% | 17 | 77% | 17 | 100% | 13 | 81% | 12 | 71% | | Betsi Cadwaladr University Local Health Board | BCUHB – West Pulmonary Rehabilitation Service | 26 | 16 | 64% | 15 | 75% | 19 | 76% | 19 | 100% | 10 | 56% | 5 | 36% | | Cardiff & Vale University Local Health Board | University Hospital Llandough Pulmonary Rehabilitation Service | 9 | \<5 | - | 0 | 0% | 8 | 89% | 0 | 0% | 8 | 100% | 5 | 62% | | Cwm Taf Morgannwg University Local Health Board | Cwm Taf UHB Pulmonary Rehabilitation Service | 10 | 10 | 100% | 0 | 0% | 8 | 80% | \<5 | - | 7 | 88% | \<5 | - | | Hywel Dda University Local Health Board | Carmarthenshire Pulmonary Rehabilitation Programme | 11 | 0 | 0% | 0 | 0% | 10 | 91% | 10 | 100% | 8 | 80% | 5 | 50% | | Trust / health board name | Service name | Cases audited | Start date within 90 days of receipt of referral\* | Patients undertaking practice exercise test | Patients enrolled for PR who subsequently have a discharge assessment | Patients with a discharge assessment who received a written individualised exercise plan | Improvement in exercise capacity | Improvement in health status | |--------------------------|--------------|---------------|-----------------------------------------------|---------------------------------------------|-------------------------------------------------|-------------------------------------------------|-----------------------------|-----------------------------| | National QI aim | | | 85% | 100% | 70% | - | - | - | | National result | | 2,792 | 58% | 2,338 | 42% | 3,848 | 69% | 3,052 | 79% | 2,169 | 60% | 2,438 | 70% | | Powys Teaching Local Health Board | Powys Pulmonary Rehabilitation Service | 7 | \<5 | - | 0 | 0% | \<5 | - | \<5 | 100% | \<5 | - | \<5 | 100% | | Swansea Bay Local Health Board | Swansea Bay University Health Board Pulmonary Rehabilitation Service | 32 | 11 | 39% | 0 | 0% | 27 | 87% | 27 | 100% | 10 | 45% | 13 | 50% |
- This metric is only reported for non-AECOPD patients. Data is not directly comparable to the 2017 snapshot audit, as data was reported for all patients in 2017.
## 9.2 Non-participating services in England, Scotland and Wales
| Trust / health board / organisation | Service | |-------------------------------------|---------| | Bolton NHS Foundation Trust | Bolton Pulmonary Rehabilitation Programme | | Cross Plain Health Centre | Sarum Community Based Pulmonary Rehabilitation Team | | East London NHS Foundation Trust | East London Pulmonary Rehabilitation Service | | Gloucestershire Hospitals NHS Foundation Trust | Gloucestershire Respiratory Team | | Hywel Dda University Local Health Board | Pembrokeshire Pulmonary Rehabilitation Programme | | Kettering General Hospital NHS Foundation Trust | Rocket Team Kettering General Hospital | | Mid Yorkshire Hospitals NHS Trust | North Kirkles Pulmonary Rehabilitation Programme | | Milton Keynes University Hospital NHS Foundation Trust | Milton Keynes Hospital Pulmonary Rehabilitation Programme | | North East Hampshire and Farnham (NEH&F) Pulmonary Rehabilitation Service | BOC LTD | | NHS Ayrshire and Arran | Ayrshire and Arran Pulmonary Rehabilitation Service | | NHS Borders | Borders Pulmonary Rehabilitation | | NHS Dumfries and Galloway | Dumfries and Galloway Pulmonary Rehabilitation Service | | NHS Fife | Integrated Care Team | | NHS Forth Valley | Forth Valley Pulmonary Rehabilitation Service | | NHS Highland | East Caithness Pulmonary Rehabilitation Service | | NHS Tayside | Dundee Pulmonary Rehabilitation Service | | NHS Tayside | Angus Pulmonary Rehabilitation Service | | NHS Western Isles | Western Isles Pulmonary rehabilitation | | Royal Papworth Hospital NHS Foundation Trust | Papworth Hospital PR Programme | | Swindon Borough Council (Unitary) | Swindon Healthy Lives Pulmonary Rehabilitation Programme | | University Hospitals of Morecambe Bay NHS Foundation Trust | South Lakes Community Respiratory Service | | Warrington and Halton Hospitals NHS Foundation Trust | Halton Pulmonary Rehabilitation service | Appendix A: Methodology
Back to contents
NACAP’s pulmonary rehabilitation (PR) continuous clinical audit is built upon the learning from the National COPD Audit Programme snapshot clinical audit. The structure of the dataset is similar to that used in 2017, however, it has been considerably streamlined to account for the change in methodology from snapshot (in 2017) to continuous audit which commenced in March 2019. This is the first report since the start of continuous data collection and presents the results of the cohort of patients assessed between 1 March and 31 May and discharged by 31 August 2019.
All PR services in England, Scotland and Wales that treated patients with COPD (n=223) were eligible to participate in the audit. A total of 201 services (90.1%) participated in this period of the audit. A full list of participating hospitals, including those hospitals that did not enter any data for the audit period are listed in Section 9.
The clinical audit operates on a patient consent model; eligible patients were required to provide written consent (using the forms available on the audit website www.rcplondon.ac.uk/projects/outputs/national-asthma-and-copd-audit-programme-nacap-pulmonary-rehabilitation-workstream) prior to their data being included in the audit. Data from patients that did not provide consent was not included in the audit.
Participating PR services were required to enter clinical data into a secure online web tool. A total of 6,056 patient records have been included in this report.
Recruitment
There was a single recruitment process for both the PR clinical and organisational audits, which began in 2018, using the following channels:
> partner and stakeholder channels (such as the British Thoracic Society’s eBulletin, the British Lung Foundation’s BreatheEasy networks, the Primary Care Respiratory Society UK’s membership bulletin, and the Association of Respiratory Nurse Specialist’s newsletter) Twitter and the audit’s own newsletter communication with services that participated in the 2017 audit.
To identify new services, or services where the management had changed, a Freedom of Information request was sent to all CCGs, asking them for the names and contact details of the PR services used by their healthcare providers. Where identified, these services were sent an approaching email asking them to participate in the audits.
The reasons provided to participate were as follows:
> the status of the audit as part of NHS Quality Accounts, and as a National Clinical Audit, meaning all providers of NHS care in England and Wales were required to participate. to build on previous audit results and facilitate local improvement.
Services were asked to complete a registration form, nominating an ‘audit lead’ and adding any other team members that would form part of the audit team. It was made clear to prospective participants that the ‘audit lead’ role took ultimate responsibility of the data entered for the service. Once a service had submitted their registration form, they were then sent a Caldicott Guardian letter and form to complete. Only after the Caldicott Guardian form was received by the audit team at the RCP was the service considered ‘fully registered’, and at that point, they were registered on the web tool.
There were 229 PR services identified for participation in the audit, and we believe this to be a comprehensive picture of services in England, Scotland and Wales, but we cannot rule out the possibility that PR services exist that were not identified, and therefore did not participate in the audit. A total of 218 services are registered to participate in the audit, with 201 submitting data for this report. Reasons for non-participation included:
> lack of local resource to complete the data collection and entry; and no eligible patients during the audit period (ie services ran cohort (rather than rolling) programmes, and all their assessments took place prior to the audit period starting).
**Information governance and patient consent**
The audit involved the collection of patient identifiable data for the purpose of linkage with data from other sources (such as Hospital Episode Statistics and Office for National Statistics data for readmission and mortality data), and the audit operated on a patient consent model on advisement from the Health Research Authority’s Confidentiality Advisory Group (CAG 2-03(PR3)/2014). The rationale for this was the comparative low acuity of the patient cohort, combined with the fact that the patient interaction with their PR service is prolonged, both of which meant that seeking consent was viable. In addition, the 2015 and 2017 audits found that requesting patient consent proved to have no significant impact on the number of patients included (81% of patients approached gave consent).
To support the process, a patient consent form, patient information leaflet as well as guidance for the staff involved, were made available on the project ([www.rcplondon.ac.uk/nacap-pr-resources](http://www.rcplondon.ac.uk/nacap-pr-resources)) and web tool webpages (beyond participants’ logins). The forms and guidance were updated following the launch of NACAP in March 2018 and feedback from the 2015 and 2017 audits, in order to make the language clearer and to incorporate comments from external groups.
The patient information leaflets, and consent form were ratified by NHS Digital Data Access Request Service (Information Governance section), the British Lung Foundation’s patient think tank, as well as the Royal College of Physicians’ Ethics Committee.
Participating services were asked to approach all eligible patients for written consent. It was recommended this be done at their initial assessment and made clear that no data whatsoever should be entered onto the web tool until the patient had provided consent. Any delay in obtaining consent risked the patient dropping out of their PR programme before consent was obtained, in which case their data could not be used.
**Audit question development and pilot**
To ensure PR care was audited against accepted standards, audit questions were mapped to the British Thoracic Society (BTS) PR quality standards. A specific effort was made to ensure that each question could be mapped to a quality standard, and conversely that each quality standard was represented within the audit datasets. The audit datasets were based on the 2017 equivalents. They were developed iteratively by the audit programme team and clinical lead, in consultation with the workstream group, in particular the representatives from the British Thoracic Society.
The datasets and web tool were then tested (in a pilot) in November 2018. The pilot services were asked to contribute feedback on the web tool, the audit questions and help notes. These findings were discussed by the team and the workstream group, and the datasets were finalised.
The clinical audit questions included demographic data about the patients being included, and also questions on:
- the patient’s referral process,
- their assessment and assessment performance,
- time from referral to start of PR, and
- their discharge and discharge performance.
The clinical datasets are available to download in full from our website: www.rcplondon.ac.uk/nacap-pr-resources
**Data entry**
Services were required to enter data via the audit programme’s bespoke web tool, created by Crown Informatics Ltd (available at www.copdaudit.org).
Documentation to support participation in the audit was posted on the PR audit website and web tool, including audit instructions, data collection sheets, datasets with help notes, patient consent documentation, and copies of newsletters.
Regular email updates and newsletters were sent to participants throughout the data collection period, with reminders of timelines and any answers to frequently asked questions.
Towards the end of the clinical data entry period, reminders were sent to the services that had not entered many cases. Additionally, large numbers of draft records were queried.
**Data storage, security, and transfer**
Data were collected on the audit’s bespoke web tool. These data were stored and processed at a secure data centre, owned by Aimes Grid Services, located in Liverpool, UK. It operates to ISO 27001 certification (2015). The servers are owned and operated by Crown Informatics Ltd and are held in a secure locked rack, accessible to named individuals. All access is logged, managed and supervised.
This data centre provides N3 aggregation in collaboration with NHS Digital. Data is stored in secured databases (software by IBM) and encrypted on disc (AES256 standard) and additionally in the database where required. Backups are encrypted at AES256, held in dual copies, and stored securely.
Crown Informatics Ltd operate secure SSL at 256 bit, using SHA256 (SHA2) signatures and 4096 bit certificates. Crown Informatics Ltd’s certificate is an ‘OV’ certified by a respected global certifier (Starfield/GoDaddy). In addition, ‘Qualys’ using ‘SSL Labs’ have given the audit site an ‘A’ rating.
At the end of the data collection period, the data was extracted from the web tool by the central audit team, using an ‘extract’ provision developed by Crown. It was then transferred securely (using the RCP Mimecast system) to the team at Imperial College London for analysis. The extract function did not include patient identifiers. Technical and email support
The audit programme team at the RCP provided a helpdesk every working day during office hours, available on both telephone and email, so that participants could come directly to the team with any questions they had.
Data cleaning and analysis methodology
The data were analysed at Imperial College London (National Heart & Lung Institute) in R version 3.6.2. The patient’s Index of Multiple Deprivation quintile was linked using the patient’s lower layer super output area (LSOA). The dataset contained 8,324 records, of which 6,077 were assessed between 01/03/2019 and 31/05/2019. There were no data inconsistencies or assessment date/start date/discharge date order issues. After removing those with invalid NHS numbers (n=1) and duplicate records (n=20), 6,056 records remained suitable for analysis. New variables were created as follows:
- ‘Days from referral to start date’ created by subtracting the referral date from the start date
- ‘Days from initial assessment to start date’ created by subtracting the initial assessment date from the start date
- ‘Days from start date to discharge date’ created by subtracting the start date from the discharge date
- ‘Start date offered within 90 days for non-AECOPD patients’ created by categorising non-AECOPD patients into \<90 days and >=90 days from referral to start date
- ‘Start date offered within 30 days for AECOPD patients’ created by categorising AECOPD patients into \<30 days and >=30 days from referral to start date
- Difference in test values (ISWT, 6MWT, ESWT, CAT, CRQ domains) were calculated by subtracting the initial test result from the discharge test result
- MCID variables for ISWT, 6MWT, CAT, and CRQ domains were then created by categorising the test value difference variables into those who achieved the MCID and those who didn’t, with MCID achieved defined as: >=48 for ISWT, >=30 for 6MWT, \<= –2 for CAT, >=0.5 for CRQ domains.
Summary statistics for patient N and % were created using the ‘table’ and ‘prop.table’ commands. Medians and interquartile ranges were calculated using the ‘quantile’ command. Odds ratio calculations and logistic regression was carried out using the ‘glm’ command from the ‘lme4’ package in R. Kaplan–Meier curves were created using the ‘survfit’ command from the ‘survival’ package and the ‘plot_survfit’ command from the ‘survsup’ package in R. Appendix B: Definitions
Back to contents
> **Service** means a pulmonary rehabilitation service with a shared pool of staff and central administration where referrals are received. A provider may run one or more services, and a service may operate at several sites.
> **Programme** means the course of classes that the patient is referred to.
> **Site** means the physical location where the pulmonary rehabilitation services are provided, eg a hospital gym or church hall.
> **Date of assessment** is the date the patient attends an appointment to be assessed before beginning pulmonary rehabilitation sessions. If there was no separate assessment appointment, please enter the date of the first appointment/session.
> **Date of first pulmonary rehabilitation session** is the first session that the patient attends with the pulmonary rehabilitation service.
## Appendix C: BTS Quality Standards for Pulmonary Rehabilitation in Adults (2014)
### Back to contents
| No. | Quality statement | |-----|-------------------| | 1 | Referral for pulmonary rehabilitation: a. People with COPD and self-reported exercise limitation (MRC dyspnoea 3–5) are offered pulmonary rehabilitation. b. If accepted, people referred for pulmonary rehabilitation are enrolled to commence within 3 months of receipt of referral. | | 2 | Pulmonary rehabilitation programmes accept and enrol patients with functional limitation due to other chronic respiratory diseases (for example bronchiectasis, ILD and asthma) or COPD MRC dyspnoea 2 if referred. | | 3 | Referral for pulmonary rehabilitation after hospitalisation for acute exacerbations of COPD: a. People admitted to hospital with acute exacerbation of COPD (AECOPD) are referred for pulmonary rehabilitation at discharge. b. People referred for pulmonary rehabilitation following admission with AECOPD are enrolled within 1 month of leaving hospital. | | 4 | Pulmonary rehabilitation programmes are of at least 6 weeks duration and include a minimum of twice-weekly supervised sessions. | | 5 | Pulmonary rehabilitation programmes include supervised, individually tailored and prescribed, progressive exercise training including both aerobic and resistance training. | | 6 | Pulmonary rehabilitation programmes include a defined, structured education programme. | | 7 | People completing pulmonary rehabilitation are provided with an individualised structured, written plan for ongoing exercise maintenance. | | 8 | People attending pulmonary rehabilitation have the outcome of treatment assessed using as a minimum, measures of exercise capacity, dyspnoea and health status. | | 9 | Pulmonary rehabilitation programmes conduct an annual audit of individual outcomes and progress. | | 10 | Pulmonary rehabilitation programmes produce an agreed standard operating procedure. | References
1. British Thoracic Society (BTS). Quality Standards for Pulmonary Rehabilitation in Adults 2014. London: BTS 2014. www.brit-thoracic.org.uk/quality-improvement/quality-standards/pulmonary-rehabilitation/ [Accessed February 2020].
2. National Institute for Health and Care Excellence. Chronic obstructive pulmonary disease in adults. NICE Quality Standard 10 (QS5). London: NICE 2016. www.nice.org.uk/guidance/QS10 [Accessed February 2020].
3. Steiner M, McMillan V, Lowe D, Saleem Khan M, Holzhauer-Barrie J, Van Loo V, Roberts CM. Pulmonary rehabilitation: Beyond breathing better. National Chronic Obstructive Pulmonary Disease (COPD) Audit Programme: Outcomes from the clinical audit of pulmonary rehabilitation services in England 2015. National supplementary report. London: RCP, December 2017. www.rcplondon.ac.uk/projects/outputs/pulmonaryrehabilitation-beyond-breathing-better [Accessed January 2018].
4. National Institute for Health and Care Excellence. Smoking: supporting people to stop. NICE Quality Standard 43 (QS43). London: NICE 2013. www.nice.org.uk/guidance/QS43 [Accessed February 2020].
5. Holland EA, Spruit A, Troosters T et al. An official European Respiratory Society/American Thoracic Society technical standard: field walking tests in chronic respiratory disease Eur Resp J 2014;44(6):1428–46.
6. Singh SJ, Jones PW, Evans R, Morgan MDL. Minimum clinically important improvement for the incremental shuttle walking test. Thorax 2008;63:775–7.
7. Gupta N, Pinto LM, Morogan A, Borbeau J. The COPD assessment test: a systematic review. Eur Resp J 2014;44(4):873–84.
8. Chauvin A, Rupley L, Meyers K, Johnson K, Eason J. Outcomes in Cardiopulmonary Physical Therapy: Chronic Respiratory Disease Questionnaire (CRQ). Cardiopulm Phys Ther J 2008;19(2):61–7.
9. Steiner M, McMillan V, Lowe D, Holzhauer-Barrie J, Mortier K, Riordan J, Roberts CM. Pulmonary rehabilitation: An exercise in improvement. National Chronic Obstructive Pulmonary Disease (COPD) Audit Programme: Clinical and organisational audits of pulmonary rehabilitation services in England and Wales 2017. National report. London: RCP, April 2018. www.rcplondon.ac.uk/projects/outputs/pulmonary-rehabilitation-exercise-improvement-combined-clinical-and-organisational [Accessed July 2020]. National Asthma and COPD Audit Programme (NACAP)
Royal College of Physicians 11 St Andrews Place Regent’s Park London NW1 4LE
Tel: +44 (0)20 3075 1526 Email: [email protected]
www.rcplondon.ac.uk/nacap @NACAPaudit #pulmrehab #PR
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4c9735f9b559709cef42dca0ed1faa4837fe147a | National COPD Audit Programme
Pulmonary rehabilitation: An exercise in improvement
National Chronic Obstructive Pulmonary Disease (COPD) Audit Programme: Clinical and organisational audits of pulmonary rehabilitation services in England and Wales 2017
National report April 2018
Prepared by:
Royal College of Physicians
In partnership with: The Royal College of Physicians The Royal College of Physicians (RCP) plays a leading role in the delivery of high-quality patient care by setting standards of medical practice and promoting clinical excellence. The RCP provides physicians in over 30 medical specialties with education, training and support throughout their careers. As an independent charity representing over 34,000 fellows and members worldwide, the RCP advises and works with government, patients, allied healthcare professionals and the public to improve health and healthcare.
Healthcare Quality Improvement Partnership The National COPD Audit Programme is commissioned by the Healthcare Quality Improvement Partnership (HQIP) as part of the National Clinical Audit (NCA) Programme. HQIP is led by a consortium of the Academy of Medical Royal Colleges, the Royal College of Nursing and National Voices. Its aim is to promote quality improvement, and in particular to increase the impact that clinical audit has on healthcare quality in England and Wales. HQIP holds the contract to manage and develop the NCA Programme, comprising more than 30 clinical audits that cover care provided to people with a wide range of medical, surgical and mental health conditions. The programme is funded by NHS England, the Welsh Government and, with some individual audits, also funded by the Health Department of the Scottish Government, DHSSPS Northern Ireland and the Channel Islands.
Citation for this document: Steiner M, McMillan V, Lowe D, Holzhauer-Barrie J, Mortier K, Riordan J, Roberts CM. Pulmonary rehabilitation: An exercise in improvement. National Chronic Obstructive Pulmonary Disease (COPD) Audit Programme: Clinical and organisational audits of pulmonary rehabilitation services in England and Wales 2017. National report. London: RCP, April 2018
Copyright © Healthcare Quality Improvement Partnership 2018
ISBN 978-1-86016-708-9 eISBN 978-1-86016-709-6
Royal College of Physicians Care Quality Improvement Department 11 St Andrews Place Regent’s Park London NW1 4LE
Registered charity no 210508
www.rcplondon.ac.uk/nacap @NACAPaudit #COPDAudit #COPDPRaudit #COPDPRbreathebetter #COPDauditQI PARTICIPATION
7,476 patients included in the clinical audit from 184 services (79% of all eligible patients)
187 services included in organisational audit (96% of all eligible organisations)
Enrolment to PR within 90 days of receipt of referral is a nationally agreed quality standard
GOOD NEWS!
Clinical outcomes from patients who complete therapy remain excellent
ISWT 6MWT
Median Improvement (metres)
0 10 20 30 40 50 60
MCID\* MCID\*
(Incremental Shuttle Walking Test) (Six Minute Walk Test)
ACCESS TO PR
NATIONAL QI AIM
Services should endeavour to enrol 85% of those referred for PR within 90 days
QUALITY OF PR SERVICES
NATIONAL QI AIM
Services should ensure all exercise assessments are performed to accepted technical standards
OUTCOMES OF TREATMENT
NATIONAL QI AIM
Services should aim for patient completion rates of 70% or more following assessment for PR
\*Minimal clinically important difference Contents
How to use this report .......................................................................................................................... 6 Summary ............................................................................................................................................... 7 Results and quality improvement priorities ......................................................................................... 8 Participation ...................................................................................................................................... 8 Access to PR .................................................................................................................................. 9 Quality of PR services .................................................................................................................. 10 Outcomes of treatment ................................................................................................................ 12 QI case study ....................................................................................................................................... 14 Recommendations .............................................................................................................................. 15 Patients and carers/families ........................................................................................................... 15 PR programmes ............................................................................................................................ 15 Primary and secondary healthcare teams ...................................................................................... 15 System leaders (clinical commissioning groups/STPs) ................................................................. 15 Additional quality improvement opportunities .................................................................................. 16 For PR services ............................................................................................................................ 16 For primary and secondary healthcare teams .............................................................................. 16 For system leaders ....................................................................................................................... 16 Appendix A: BTS Summary of Quality Standards for Pulmonary Rehabilitation in Adults (2014) ..... 17 Appendix B: Document purpose ......................................................................................................... 18 Appendix C: References ...................................................................................................................... 19 How to use this report
This report outlines the summary findings of the second round of the pulmonary rehabilitation (PR) component of the National Chronic Obstructive Pulmonary Disease (COPD) Audit Programme, which comprises snapshot audits of:
- the resources and organisation of PR services across England and Wales conducted between 3 January and 28 April 2017
- the process and clinical outcomes of treatment in patients with COPD assessed for PR between 3 January and 31 March 2017.
The report summarises key findings, mapped to the appropriate 2014 British Thoracic Society (BTS) Quality Standard (QS) where relevant, and priorities for quality improvement (QI) presented under three broad categories:
- access to PR
- quality of PR services
- outcomes of treatment.
More detailed recommendations and QI opportunities are also provided for:
- patients and carers/families
- PR services
- primary and secondary care providers
- system leaders such as commissioners and sustainability and transformation partnerships (STPs).
The full methodology and data analysis for these audits can be found in two online data reports, www.rcplondon.ac.uk/an-exercise-in-improvement. All of the results highlighted in this report are followed by references directing the reader to either the clinical audit analyses and results (CDAR) or the organisational audit analyses and results (ODAR). Although these data are available to the interested reader, it is not necessary to review them to appreciate the key messages. The data are presented largely in tabular form, with explanatory notes throughout.
Direct comparisons with the 2015 audits are provided where possible and relevant.
Nationally benchmarked results for individual PR services have been provided within the online data reports www.rcplondon.ac.uk/an-exercise-in-improvement. The indicators chosen are in support of the recommendations made within this report in addition to aligning with national guidelines and standards. These data will also be made publicly available on www.data.gov.uk, in line with the government’s transparency agenda. Summary
Pulmonary rehabilitation (PR) is one of the most effective and high value interventions for people suffering with COPD. In this report we present the second round of both clinical and organisational PR audits, which follow the first rounds conducted in 2015. Both the current and 2015 audits measured performance against the 2013 BTS clinical guidelines and quality standards (provided in full in Appendix A).
The 2015 audits demonstrated the substantial and clinically important health benefits associated with completion of PR, including a reduced risk of subsequent admission to hospital. However, they also emphasised the key problem of under-referral and non-completion of PR. For example, approximately 40% of patients assessed for PR did not go on to complete the treatment course. Deficiencies in some care processes were also identified in the 2015 audits, for example, the number of patients that performed a practice exercise test at PR assessment was low (only 26% for the incremental shuttle walk test (ISWT) and 24% for the 6-minute walk test), despite evidence that outcomes are worse for patients who do not undertake one.
The 2017 audit reiterates the successes of PR services in England and Wales in delivering considerable health benefits such as improvements in exercise performance and health status, for patients who complete treatment. It also highlights some key successes; rates of completion have improved marginally to 62% in 2017 compared with 59% reported in 2015. There have also been improvements in provision of written discharge exercise plans (84% in 2017 versus 65% in 2015), the assessment of muscle strength (27% in 2017 versus 15% in 2015) and in the numbers of programmes with a written standard operating procedure (84% in 2017 versus 67% in 2015). However, the findings also highlight the need for improvement in care delivery and outcomes. Therefore, in this report we recommend actions that PR services, primary care and hospital teams and system leaders should take to address these needs. We also identify three national quality improvement targets relating to waiting times for PR, conduct of exercise assessments and completion rates.
We believe that the improvement targets we have set are achievable by PR services with the support of local system leadership. If these are achieved they will enhance access to treatment, improve the quality of care and deliver significant benefits to patients and the NHS. Results and quality improvement priorities
Participation
All identified PR services in England and Wales were invited to participate in both the organisational and clinical audits of PR. An interactive map of PR services in England and Wales was developed as part of the PR service recruitment process. In keeping with the methodology for the 2015 audit, individual patient consent was required to permit identifiable data to be uploaded to the audit.
- In the 2017 audit, records were excluded as follows: 96 because they were duplicates, 61 because they were earlier dates for PR, 3 because they were later dates for PR, and 8 because the record was almost entirely incomplete.
- In the 2015 audit, records were excluded as follows: 1,056 were duplicates for use in a reliability analysis, 17 because they were triplicates, and 7 because they were later dates for PR.
195 services identified (230 identified in 2015)
187 services participated in the organisational audit (224 participated in 2015)
184 services participated in the clinical audit (210 participated in 2015)
7,643 records were exported from the web-tool (8,463 in 2015)
167 records excluded\* (1,080 records in 2015\*\*)
7,476 patients were included in the main analysis (median 32, IQR 19–52, range 1–191 per service)
(7,413 patients were included in 2015 (median 27, IQR 15–45, range 1–208 per service))
- In the 2017 audit, records were excluded as follows: 96 because they were duplicates, 61 because they were earlier dates for PR, 3 because they were later dates for PR, and 8 because the record was almost entirely incomplete. \*\* In the 2015 audit, records were excluded as follows: 1,056 were duplicates for use in a reliability analysis, 17 because they were triplicates, and 7 because they were later dates for PR. Access to PR
To see the data analysis in full, please access the data analysis and results reports available at www.rcplondon.ac.uk/an-exercise-in-improvement.
Key findings
- **Waiting times** for enrolment to PR from receipt of referral are similar to those reported in the 2015 audit and remain too long for such an effective and high value therapy:
- The median waiting time was **75 days**, with 60% (4,213/6,965) of patients enrolled within 90 days in 2017, compared with 2015 when a median waiting time of 76 days was reported with 63% (3,800/5,986) enrolled within 90 days (QS11). (CDAR, 1.9.1)
- There was an increase in the proportion of patients being enrolled to **rolling programmes**; 58% (4,116/7,051) in 2017, compared with 53% (3,357/6,319) in 2015. (CDAR, 1.10)
- Waiting times remained longer for **cohort programmes** (median of **89 days**), compared with those of **rolling programmes** (median of **66 days**). (CDAR, 1.10.1)
- **29%** of services did not offer early post-discharge PR for patients following discharge from hospital for acute exacerbation of COPD (AECOPD). Possibly as a result, post-exacerbation PR (vs PR for patients with stable COPD) remained a very small proportion of PR service caseloads (3%) (QS31). (ODAR, 1.5)
- It is encouraging that the vast majority of services (92%, 172/187) **accepted those patients with more severe disability** and self-reported breathlessness MRC grade 5\* compared with 81% in 2015 (182/224) (QS11). A minority of services (5%, 9/187) continued not to accept active smokers. (ODAR, 1.1, 1.2)
- The majority of services accepted patients with **conditions other than COPD** (eg asthma, lung cancer, heart failure), however, a small number (5%, 9/187) continued not to (QS21). (ODAR, 1.4)
- Services estimated that 33% of referrals for 2015/16 did not attend an initial PR assessment.
- 19% (31/167) of services were operating under a fixed term of funding. In 60% (18/30) the funding term was for 2 years or less. (ODAR, 4.2, 4.2.1)
- There was a reduction in the **whole-time equivalent (WTE) staffing levels** per service. A median of **2.53 staff** was reported for 187 services in 2017, compared with a median of **2.90 staff** for 224 services in 2015. (ODAR, 5.3.2)
- 23% of PR service leads did not have protected management time within their jobs to devote to service development and leadership. (ODAR, 5.2)
- Ratios of total referrals and total initial assessments per staff increased:
- Median **total referrals per 1.0 WTE was 134**, compared with 104 in 2015. (ODAR, 5.3.2)
- Median **total initial assessments per 1.0 WTE was 89**, compared with 70 in 2015. (ODAR, 5.3.2)
______________________________________________________________________
*Medical Research Council breathlessness scale measuring perceived respiratory disability* **QI priority:** Reduce waiting times for enrolment to PR (from receipt of referral) with an achievement target of 85% of patients being enrolled within 90 days for each PR programme.
**How this priority was derived:**
The BTS quality standard 1b states that people referred for pulmonary rehabilitation should be enrolled on PR within 3 months of receipt of referral. The current audit indicates that patients referred for PR often had to wait too long for treatment. We note also the high risk of admission to hospital among the population assessed for PR (approximately 30% at 6 months). Reducing waiting times will lower the risk of admission impeding uptake of the referral. This is of potential high importance given that the completion of PR was associated with reduced subsequent risk of admission to hospital.
This aim may appear challenging for some services, but the upper 25% of services for this outcome enrolled 88% or more of referred patients within 90 days. This is therefore an achievable target for all programmes, which will deliver substantial benefits to patients.
**Tips on how to achieve this:**
Although cohort programmes had similar outcomes to rolling programmes, they had significantly longer waiting times. We therefore suggest that services that solely run cohort programmes and struggle with waiting times consider a change to a rolling design (or to a combination of the two) to deliver this objective.
______________________________________________________________________
**Quality of PR services**
To see the data analysis in full, please access the data analysis and results reports available at [www.rcplondon.ac.uk/an-exercise-in-improvement](http://www.rcplondon.ac.uk/an-exercise-in-improvement).
**Key findings**
- Conduct of exercise testing by the majority of programmes was not in line with accepted standards (QS8):
- Numbers of patients that had a practice exercise test remained low (\<50%). There was however an improvement in the number of practice ISWTs performed; 39% (1,369/3,551) in 2017 compared with 26% (1,004/3,811) in 2015. These figures did not improve for the 6-minute walk test (6MWT); 26% (822/3,181) in 2017, compared with 24% (668/2,835) in 2015. (CDAR, 2.11.1)
- Of those programmes using the 6MWT, only 6% (8/127) were using the recommended walking course length of 30m or more. (ODAR, 2.7.2)
______________________________________________________________________
- A cohort programme is where all patients start and finish the programme at the same time.
- A rolling programme is a continuing cycle of sessions, with patients joining when there is a space and leaving after completing a programme of sessions. • **10%** (18/184) of services did not offer *individually prescribed aerobic*§ or *resistance*\* training\* and an additional **30%** (55/184) estimated exercise intensity only from perceived exertion score†† (ODAR, 2.4.1)
• **84%** (157/186) of services in 2017 reported routinely providing a *written discharge exercise plan*, which is notably better than the **65%** (145/224) reported in 2015. (ODAR, 3.5)
- Data analysed from the clinical audit supports this finding, with **81%** (3,739/4,637) of patients provided with a written exercise discharge plan, compared with **73%** (3,198/4,353) in the 2015 audit (QS71). (CDAR, 4.1.2)
• **27%** (2,006/7,476) of patients had an *assessment of muscle strength* at baseline; this has improved considerably since the 2015 audit, where only **15%** (1,094/7,413) was reported. (CDAR, 2.14)
• The recording of key clinical information such as body mass index (BMI) and spirometry did not significantly change since the 2015 audit:
- **BMI** was reported for **70%** (5,259/7,476) of patients in 2017, compared with **66%** (4,898/7,413) in 2015. (CDAR, 2.9)
- **Spirometry** was reported for **60%** of patients in both 2017 and 2015 audits. (CDAR, 2.4 to 2.6)
• It is encouraging that more services had a standard operating procedure detailing local policies; **84%** (157/187) in 2017, compared with **67%** (150/224) in 2015 (QS101). (OADR, 6.1)
______________________________________________________________________
**QI priority:** Each PR service should ensure that *all* exercise assessments are performed to recommended technical standards. This includes the routine conduct of practice walks and the use of walking course lengths appropriate to the test used.
**How this priority was derived:** Accurate measurement of baseline is critical for exercise prescription and outcome assessment. However, only a minority of programmes undertook a practice test for the ISWT or the 6MWT. Data from the 2015 audit suggest that overall outcomes of PR were better in programmes that undertook practice walks during testing. Importantly, if patients were asked to undertake tests as part of their treatment, it is expected that such tests would be conducted according to recommended standards. This will ensure such assessments are reliable, ensure exercise training can be accurately prescribed, and that outcome assessments following PR are unbiased.
**Tips on how to achieve this:** Space limitations may restrict walking course lengths for the 6MWT. For programmes where this is the case, consider a switching to using the ISWT, which requires only a 10m course.
______________________________________________________________________
§ Aerobic training refers to endurance (or submaximal) whole body exercise most commonly performed using walking (treadmill or corridor) or on an exercise bike.
\*\* Resistance (or strength) training refers to the generation of force by specific muscle groups (either free weights or using a multi-gym) with the aim of improving muscle strength.
†† This data cannot be directly compared with data from the 2015 audit as the question was rephrased in the 2017 audit. Outcomes of treatment
To see the data analysis in full, please access the data analysis and results reports available at www.rcplondon.ac.uk/an-exercise-in-improvement.
Key findings
- **Overall rates of completion** of the PR programme have improved; 62% (4,637/7,476) of patients completed in 2017, compared with 59% (4,353/7,413) in 2015. (CDAR, 4)
- **Clinical outcomes of treatment** (proportions meeting minimal clinically important differences (MCID) for the relevant exercise capacity and health status measures) for patients who complete therapy were excellent, as per those seen in clinical trials. The table below provides more information. (CDAR, 4.3.2)
| Patients (n) | Difference between initial assessment and discharge, median (IQR) change | Patients achieving the MCID or higher (%) | |--------------|------------------------------------------------------------------------|------------------------------------------| | Walk tests | | | | ISWT (m) | 2,324 | 60 (20, 100) | 58% (>48 metres) | | 6MWT (m) | 1,989 | 50 (20, 90) | 68% (>30 metres) | | St George’s Respiratory Questionnaire (SGRQ) | | | | | Total score | 248 | -5 (-13, 2) | 54% (>4 points) | | Chronic Respiratory Questionnaire (CRQ) average scores | | | | | Dyspnoea | 1,801 | 0.8 (0, 1.6) | 61% (>0.5 points) | | Fatigue | 1,768 | 0.7 (0, 1.5) | 59% (>0.5 points) | | Emotion | 1,767 | 0.5 (0, 1.3) | 53% (>0.5 points) | | Mastery | 1,767 | 0.5 (0, 1.5) | 56% (>0.5 points) | | COPD Assessment Test (CAT) | | | | | Total score | 2,927 | -2 (-6, 1) | 56% (>2 points) |
- There was no significant difference in clinical outcomes between patients enrolled on cohort programmes compared with rolling programmes. (CDAR, 4.6.4)
QI priority: PR programmes should achieve patient completion rates of 70% or more following assessment for PR.
How this priority was derived:
There are substantial patient-centred benefits of completing PR, namely a marked improvement in exercise capacity and health status. However, the audit highlights significant patient dropout rates between referral for PR and the assessment appointment, as well as between assessment and completion (38%).
The 2015 PR outcomes report demonstrated that PR completion was associated with lower hospital admission rates at 180 days. Enhancement of completion rates therefore has the potential for substantial health benefit to patients and to the NHS.\\textsuperscript{6}
The upper quartile of completion rates for PR programmes across the audit in 2017 was 75% or higher, so this is an achievable target for all programmes.
risk of exacerbation and hospital admission, for example those with previous admissions, active smokers, or with more advanced disease. PR services should work in partnership with local specialist and/or community COPD teams to ensure evidence-based exacerbation prevention strategies are implemented (for example, ensuring correct diagnosis, optimising drug treatment, managing comorbidities and promoting smoking cessation and winter vaccination) as these may also be effective in enhancing PR completion rates.\\textsuperscript{11} QI case study
Below is an example of a small test of change\\textsuperscript{14,15} implemented by BreathingSpace, Rotherham to improve their patient completion rates (QI priority 3).
Developing a new patient information leaflet to raise awareness of pulmonary rehabilitation
BreathingSpace, Rotherham
**Background**
Results from the 2015 PR audit showed that BreathingSpace, Rotherham reported that 11% of patients who were assessed were then not enrolled to PR. Therefore, to take steps to reduce dropout rates BreathingSpace utilised a communication tools quality improvement methodology.
**Aim**
Evidence suggests that one of the reasons for non-attendance and non-completion is uncertainty and a lack of understanding of the benefits of PR.\\textsuperscript{11,16}
To increase patient uptake and completion of PR by providing patients, their families and carers with clear, comprehensive and consistent communication which is focused on improving the quality of the care they receive.
**Process**
An outdated information leaflet was being used across the trust. It was recognised that the leaflet lacked patient input and did not address the aspects of PR that patients felt were most important.
A patient focus group was conducted with those patients already engaged with PR to help understand what they expected the leaflet to explain and to include any concerns that they had prior to attending PR. It was recognised that some patients were unsure about what the term ‘rehabilitation’ would involve, so this was identified as a potential barrier to uptake. In addition to the focus group, telephone interviews were conducted with patients who had been identified as having either declined after the initial assessment or enrolled and not completed PR. Both these methods helped to broaden the depth of information that was included in the leaflet.
**Outcomes**
The new patient information leaflet was distributed trust-wide. Its success can be measured by the reduction in the percentage of patients assessed for PR, who were then not enrolled on a course. Results from the 2017 audit showed that only 2% of patients fell into this category at BreathingSpace, Rotherham (compared with 11% reported in the 2015 audit). Patients who received the leaflet and healthcare professionals providing it were asked to rate the value of its effectiveness. Results showed that 80% of patients rated the leaflet as ‘useful’ or ‘very useful’. 85% of health and care professionals rated it as a useful tool to issue to patients when introducing the idea of referral to PR. Governance procedures have been put in place to routinely review and revise the document. Copies of the outdated leaflet have now been withdrawn. Recommendations
Patients and carers/families
- If your breathing is preventing you from undertaking normal physical tasks (such as walking on flat ground), or if you have been admitted to hospital for a flare-up of your COPD, ask any healthcare professional involved with your respiratory care to refer you to PR.
- You should expect to start PR treatment within 90 days of the service receiving your referral.
PR programmes
- All patients referred for PR should be enrolled to the programme within 90 days of receipt of the referral (QI priority 1).
- PR services that solely run cohort programmes could consider switching to rolling programmes (or using a combination of both) to reduce waiting times.
- Care processes should be reviewed to ensure that they meet BTS guidelines and quality standards. Particular attention should be paid to ensure that:
- exercise testing at assessment is performed to accepted standards (QI priority 2)
- exercise training is accurately prescribed from an exercise test performed at assessment
- patients are provided with a written, individualised exercise plan at discharge from PR.
- Patients at high risk of exacerbation and hospital admission should be identified at assessment for PR and evidence-based exacerbation prevention strategies implemented by developing integration and referral pathways. Key interventions may include:
- ensuring correct diagnosis
- promoting smoking cessation and vaccination
- optimising drug therapy
- managing comorbidities.
Primary and secondary healthcare teams
- Practices should review COPD registers to ensure all eligible patients are offered PR and that this offer is considered at each annual review.
- Hospital discharge teams should ensure that local discharge care bundles include the offer of early post-discharge PR, accompanied by information about the benefits of PR.
- Hospital and community specialist COPD healthcare teams should work with PR programmes to arrange review of individual patient exacerbation prevention measures.
System leaders (clinical commissioning groups/STPs)
- Should ensure that PR services receive funding of sufficient quantity and duration to enable them to recruit and retain highly trained staff and develop processes to ensure that all patients are enrolled to PR within 90 days of receipt of referral.
- Should ensure that there is an accessible PR service that can offer early post-discharge PR for patients leaving hospital after an exacerbation of COPD.
- Prioritise measures to enhance referral and completion of PR, including developing integrated referral pathways between PR services and other healthcare teams managing COPD. Additional quality improvement opportunities
For PR services
- Record baseline exercise measures accurately (QI priority 2) and record exercise intensity prescribed during PR, including how it is calculated. If resistance exercise training is undertaken, record maximum strength and ensure it is measured at baseline, including how the resistance training loads are calculated.
- Review discharge assessment processes and ensure the provision of a discharge exercise plan is included and recorded.
- Develop referral pathways in collaboration with specialist hospital or community COPD teams in order to facilitate engagement in implementing exacerbation prevention strategies.
For primary and secondary healthcare teams
- Review practice COPD registers to ensure that all patients with significant exercise limitation (MRC grade 3 or worse) have had a proactive offer of PR. Record referral rates for PR on patient records and set specific targets for improvement.
- Include referral to PR as part of your discharge care bundle for AECOPD and record these referral rates. If patients choose to decline PR when leaving hospital, recommend that the offer is made again later (during or following recovery) by healthcare teams that are taking over care after discharge, and record that this recommendation has been made.
For system leaders
- Discuss resource needs directly with local programme leads and develop business plans to deliver these resources. Support participation in ongoing audits to demonstrate that these resources are meeting local and national QI objectives and delivering improvements in patient care.
## Appendix A: BTS Summary of Quality Standards for Pulmonary Rehabilitation in Adults (2014)
| No. | Quality statement | |-----|-------------------| | 1 | Referral for pulmonary rehabilitation:\
| | a. People with COPD and self-reported exercise limitation (MRC dyspnoea 3–5) are offered pulmonary rehabilitation.\
| | b. If accepted, people referred for pulmonary rehabilitation are enrolled to commence within 3 months of receipt of referral. | | 2 | Pulmonary rehabilitation programmes accept and enrol patients with functional limitation due to other chronic respiratory diseases (for example bronchiectasis, ILD and asthma) or COPD MRC dyspnoea 2 if referred. | | 3 | Referral for pulmonary rehabilitation after hospitalisation for acute exacerbations of COPD:\
| | a. People admitted to hospital with acute exacerbations of COPD (AECOPD) are referred for pulmonary rehabilitation at discharge.\
| | b. People referred for pulmonary rehabilitation following admission with AECOPD are enrolled within 1 month of leaving hospital. | | 4 | Pulmonary rehabilitation programmes are of at least 6 weeks duration and include a minimum of twice-weekly supervised sessions. | | 5 | Pulmonary rehabilitation programmes include supervised, individually tailored and prescribed, progressive exercise training including both aerobic and resistance training. | | 6 | Pulmonary rehabilitation programmes include a defined, structured education programme. | | 7 | People completing pulmonary rehabilitation are provided with an individualised structured, written plan for ongoing exercise maintenance. | | 8 | People attending pulmonary rehabilitation have the outcome of treatment assessed using as a minimum, measures of exercise capacity, dyspnoea and health status. | | 9 | Pulmonary rehabilitation programmes conduct an annual audit of individual outcomes and process. | | 10 | Pulmonary rehabilitation programmes produce an agreed standard operating procedure. |
British Thoracic Society. *BTS quality standards for pulmonary rehabilitation in adults*. London: BTS, 2014.\
[www.brit-thoracic.org.uk/standards-of-care/quality-standards/bts-pulmonary-rehabilitation-quality-standards/](http://www.brit-thoracic.org.uk/standards-of-care/quality-standards/bts-pulmonary-rehabilitation-quality-standards/)
## Appendix B: Document purpose
| Document purpose | To disseminate the results of the national clinical and organisational audits of pulmonary rehabilitation services in England and Wales 2017. | |------------------|----------------------------------------------------------------------------------------------------------------------------------| | Title | Pulmonary rehabilitation: An exercise in improvement. National Chronic Obstructive Pulmonary Disease (COPD) Audit Programme: Clinical and organisational audits of pulmonary rehabilitation services in England and Wales 2017. | | Authors | Steiner M, McMillan V, Lowe D, Saleem Khan M, Holzhauer-Barrie J, Mortier K, Riordan J, Roberts CM (on behalf of the National COPD Audit Programme: pulmonary rehabilitation workstream) | | Publication date | 12 April 2018 | | Audience | Healthcare professionals, NHS managers, chief executives and board members, service commissioners, policymakers, COPD patients, their families/carers, and the public. | | Description | This is the fourth of the COPD pulmonary rehabilitation audit reports, and the first reporting on data collected in 2017, published as part of the National COPD Audit Programme. This combined report details national data relating to the resources and organisation of PR services across England and Wales in 2017 and the clinical outcomes of treatment in patients with COPD assessed for PR between January and April 2017. It also documents attainment against relevant pulmonary rehabilitation guidelines and quality standards as published by the British Thoracic Society (BTS) in 2013 and 2014. The report is relevant to anyone with an interest in COPD. It provides a comprehensive picture of pulmonary rehabilitation services, and will enable lay people, as well as experts, to understand how PR services function currently, and where change needs to occur. The information, key findings and recommendations outlined in the report are designed to provide readers with a basis for identifying areas in need of change and to facilitate development of improvement programmes that are relevant not only to pulmonary rehabilitation services, but also to commissioners and policymakers. There is no scheduled review date for the report. | | Supersedes | • Steiner M, Holzhauer-Barrie J, Lowe D, Searle L, Skipper E, Welham S, Roberts CM. Pulmonary Rehabilitation: Time to breathe better. National Chronic Obstructive Pulmonary Disease (COPD) Audit Programme: Resources and organisation of Pulmonary Rehabilitation services in England and Wales 2015. National organisational audit report. London: RCP, November 2015. www.rcplondon.ac.uk/projects/outputs/pulmonary-rehabilitation-time-breathe-better\
• Steiner M, Holzhauer-Barrie J, Lowe D, Searle L, Skipper E, Welham S, Roberts CM. Pulmonary Rehabilitation: Steps to breathe better. National Chronic Obstructive Pulmonary Disease (COPD) Audit Programme: Clinical audit of Pulmonary Rehabilitation services in England and Wales 2015. National clinical audit report. London: RCP, February 2016. www.rcplondon.ac.uk/projects/outputs/pulmonary-rehabilitation-steps-breathe-better\
• Steiner M, McMillan V, Lowe D, Saleem Khan M, Holzhauer-Barrie J, Van Loo V, Roberts CM. Pulmonary rehabilitation: Beyond breathing better. National Chronic Obstructive Pulmonary Disease (COPD) Audit Programme: Outcomes from the clinical audit of pulmonary rehabilitation services in England 2015. London: RCP, December 2017. www.rcplondon.ac.uk/projects/outputs/pulmonary-rehabilitation-beyond-breathing-better | | Contact | [email protected] | Appendix C: References
1 British Thoracic Society. *BTS quality standards for pulmonary rehabilitation in adults*. London: BTS, 2014. www.brit-thoracic.org.uk/standards-of-care/quality-standards/bts-pulmonary-rehabilitation-quality-standards/ [Accessed January 2018].
2 Steiner M, Holzhauer-Barrie J, Lowe D, Searle L, Skipper E, Welham S, Roberts CM. *Pulmonary Rehabilitation: Time to breathe better. National Chronic Obstructive Pulmonary Disease (COPD) Audit Programme: Resources and organisation of Pulmonary Rehabilitation services in England and Wales 2015*. National organisational audit report. London: RCP, November 2015. www.rcplondon.ac.uk/projects/outputs/pulmonary-rehabilitation-time-breathe-better [Accessed January 2018].
3 Steiner M, Holzhauer-Barrie J, Lowe D, Searle L, Skipper E, Welham S, Roberts CM. *Pulmonary Rehabilitation: Steps to breathe better. National Chronic Obstructive Pulmonary Disease (COPD) Audit Programme: Clinical audit of Pulmonary Rehabilitation services in England and Wales 2015*. National clinical audit report. London: RCP, February 2016. www.rcplondon.ac.uk/projects/outputs/pulmonary-rehabilitation-steps-breathe-better [Accessed January 2018].
4 British Thoracic Society Reports, Vol 4, Issue 2, 2012. IMPRESS Guide to the relative value of COPD interventions. www.respiratoryfutures.org.uk/knowledge-portal/impress-documents/guide-to-the-relative-value-of-copd-interventions/ [Accessed January 2018].
5 British Thoracic Society. *BTS guideline for pulmonary rehabilitation in adults*. London: BTS, 2013. www.brit-thoracic.org.uk/standards-of-care/guidelines/bts-guideline-on-pulmonary-rehabilitation-in-adults/ [Accessed January 2018].
6 Steiner M, McMillan V, Lowe D, Saleem Khan M, Holzhauer-Barrie J, Van Loo V, Roberts CM. *Pulmonary rehabilitation: Beyond breathing better. National Chronic Obstructive Pulmonary Disease (COPD) Audit Programme: Outcomes from the clinical audit of pulmonary rehabilitation services in England 2015*. National supplementary report. London: RCP, December 2017. www.rcplondon.ac.uk/projects/outputs/pulmonary-rehabilitation-beyond-breathing-better [Accessed January 2018].
7 Dyer F, Marriner P, Cheema K and Bott J. Is a practice incremental shuttle walk test really necessary? *Chron Respir Dis* 2001;8(3):201–205. doi: 10.1177/1479972311415128 http://journals.sagepub.com/doi/pdf/10.1177/1479972311415128 [Accessed January 2018].
8 Griffiths TL, Burr ML, Campbell IA, et al. Results at 1 year of outpatient multidisciplinary pulmonary rehabilitation: a randomised controlled trial. *Lancet* 2000;355:362–8 https://pdfs.semanticscholar.org/4059/328b782e144d96442633654bd88c0c07dc11.pdf [Accessed January 2018].
9 Pulmonary rehabilitation site locations map. www.nacap.org.uk/nacap/welcome.nsf/map.html [Accessed January 2018]
10 Pulmonary rehabilitation workstream: audit resources. www.rcplondon.ac.uk/projects/outputs/pulmonary-rehabilitation-workstream-audit-resources [Accessed January 2018].
11 Hakamy A, McKeever TM, Steiner MC, Roberts CM, Singh SJ and Bolton CE. The use of the practice walk test in pulmonary rehabilitation program: National COPD Audit Pulmonary Rehabilitation Workstream. *Int J Chronic Obstr Pulm Dis* 2017;12:2681–6. www.dovepress.com/the-use-of-the-practice-walk-test-in-pulmonary-rehabilitation-program-peer-reviewed-article-COPD [Accessed November 2017].
12 Puhan MA, Gimeno-Santos E, Cates CJ, Troosters T. Pulmonary rehabilitation following exacerbations of chronic obstructive pulmonary disease. *Cochrane Database Syst Rev* 2016;12 http://onlinelibrary.wiley.com/doi/10.1002/14651858.CD005305.pub4/full [Accessed September 2017]. 13 Keating A, Lee A, Holland AE. What prevents people with chronic obstructive pulmonary disease from attending pulmonary rehabilitation? A systematic review. *Chron Respir Dis* 2011;8(2):89–99. doi: 10.1177/1479972310393756.
14 Institute for Quality Improvement. Science of improvement: Testing changes. [www.ihi.org/resources/Pages/HowtoImprove/ScienceofImprovementTestingChanges.aspx](http://www.ihi.org/resources/Pages/HowtoImprove/ScienceofImprovementTestingChanges.aspx) [Accessed December 2017].
15 Royal College of Physicians. COPD audit: regional QI workshops. [www.rcplondon.ac.uk/projects/outputs/copd-audit-regional-qi-workshops](http://www.rcplondon.ac.uk/projects/outputs/copd-audit-regional-qi-workshops) [Accessed December 2017].
16 Lewis A, Bruton A, Donovan-Hall M. Uncertainty prior to pulmonary rehabilitation in primary care: A phenomenological qualitative study in patients with chronic obstructive pulmonary disease. *Chron Respir Dis* 2014 Jun 30; 11(3): 173–180. Published online 30 June 2014. doi: 10.1177/1479972314539981. For further information on the overall audit programme or any of the workstreams, please see our website or contact the national asthma and COPD audit team directly:
National Asthma and Chronic Obstructive Pulmonary Disease Audit Programme (NACAP) formerly National COPD Audit Programme Royal College of Physicians 11 St Andrews Place Regent’s Park, London NW1 4LE Tel: +44 (020) 3075 1526 Email: [email protected] www.rcplondon.ac.uk/nacap @NACAPaudit #COPDaudit #COPDPRaudit #COPDPRbreathebetter
If you would like to join our mailing list and be kept informed of updates and developments in the National Asthma and COPD Audit Programme, please send us your email address and contact details.
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192f55fd9f85250ec9cfaef6302675d28d129fcc | 2018 periodic review of Network Rail (PR18)
Initial consultation
May 2016 Contents
Summary: A more efficient, safer and better used network for passengers and freight customers 3
1. Introduction 6
2. Context for the review 8 Growing demand from passengers and freight customers 8 Performance and efficiency 8 Reclassification and public spending 9 Political and operational devolution 10 Industry structures and incentives 11 Technological change and High Speed 2 12
3. Focusing the review where it can have most impact for passengers and freight customers 14 Our proposed prioritisation 14 Proposed aim for the review 17 How we will deliver our aim and objectives 17
4. Our proposed approach to the review 20 A focus on regulating at a route-level 20 Improving system operation 22 Refining the framework for outputs and how these are monitored 23 Increasing transparency around costs and improving incentives 24 Supporting new ways to treat enhancements 26 ERTMS and related technology 28
5. Developing the high-level framework for the review 30 A potential framework for our determination 30 Outputs 31 Revenue requirement and duration of CP6 32 Financial framework and change control 32 Incentives framework 35 Monitoring and encouraging good performance 36 Overview of difference between CP5 and our proposed potential approach for CP6 37
6. Process and engagement 39 Introduction 39 Main phases of PR18 39 Our proposed approach to engagement 40 Other lead parties 41 Implementation of PR18 43 Responding to this consultation 44
Annex: References 46 Summary: A more efficient, safer and better used network for passengers and freight customers
Rail passengers and freight customers want a safe, reliable and efficient railway. Our job is to support the rail industry to deliver this and to ensure that every pound of Network Rail’s expenditure is well spent. This review of Network Rail will play an important part in doing this, providing the framework for establishing the funding it requires, what it must deliver and the charges it can levy on train operators.
We welcome your views on our initial proposals. These include: focusing our regulation on each of Network Rail’s devolved ‘routes’, supporting route customers in playing a bigger role; and targeting our regulation on how Network Rail manages and operates the system as a whole, encouraging it to get more value out of the existing network by making better use of it. Our approach would also facilitate greater political devolution of transport decision-making and support new ways of handling enhancements.
Significant achievements and opportunities ahead
Our review will build on recent successes: passenger numbers are at a post-war high, freight growth has delivered substantial environmental and economic benefits, and over the last ten years, satisfaction levels have improved. Network Rail has played a significant role in these achievements: delivering record levels of investment and improving the quality, safety and reliability of the network, while reducing costs. As a result, the railways continue to make a hugely important contribution to society, with lower levels of taxpayer funding.
But with these successes come a number of challenges. The recent cost increases and delays to some major enhancements make it even more critical that the industry demonstrates that funds provided by taxpayers, passenger fares and freight charges are all being well spent. This points to the need to continue progress on efficiency, make better use of the current network and ensure that decisions to expand or improve the network are well-informed and that delivery is effective. Meanwhile, the expectations of passengers and commercial pressures on freight continue to rise. And so must standards of network performance and service quality.
There are also significant opportunities. There is continued support for major investment in rail projects, illustrated by: the emphasis placed by the UK Government on the role of rail in the ‘Northern Powerhouse’; the Scottish Government’s City Deal commitments for rail and recent publication of its rail freight strategy; the Welsh Government’s Metro proposals; Crossrail; and High Speed 2. Longer term, there is also the prospect of improved technology, supporting growth and greater efficiency.
A period of significant change
Against this background, the industry (and Network Rail in particular) is facing a period of significant change. Some of this is led by Network Rail, notably the shift towards greater decision-making by each of its devolved routes, accompanied by its reorganisation of central functions around a ‘system operator’ and ‘technical authority’. This shift is mirrored in the move towards greater local decision-making by governments and regional transport authorities.
Reclassification of the company as a public sector organisation in 2014 means that it now competes directly with other public spending priorities and has a much closer relationship with the Department for Transport. This has led to Network Rail borrowing directly from the UK Government, subject to binding borrowing limits. This has affected how Network Rail manages the risk of overspending which, along with its public sector status, emphasises the importance of both its reputation as an incentive and its overall financial position.
Throughout this period of change we need to remain focused on what the network needs to deliver over time and how much this will cost. As a result of the Hendy review, there has been a significant change of several billion pounds to planned enhancement work, some of which has now moved from control period 5 (CP5, 2014-2019). There are now around £9.5bn of enhancements planned for control period 6 (CP6, likely to be 2019 to 2024). When combined with planned asset sales – which would reduce future income streams (e.g. from property rents) over CP6 – and uncertainty about the performance and efficiency levels that Network Rail can achieve by the end of CP5, this may imply some tough choices.
**We need to prioritise**
With limited stakeholder and ORR resources, we need to focus on areas where the review can make a significant impact on outcomes for passengers, freight customers and those providing funds to the railways. We think this means further work to improve efficiency and to get the most value out of the existing network. We also need to manage risks to asset condition and safety. Reflecting this, our proposed aim for the review is to support: ‘a more efficient, safer and better used railway, delivering value for passengers, freight customers and taxpayers in CP6 and beyond’.
To do this, we will establish a framework that focuses on achieving an efficient cost of operating, maintaining, renewing and enhancing the network for current and future users and taxpayers, while protecting the ongoing safety of the network. We will also support Network Rail in improving its understanding of the capacity and performance of the network, to inform decisions about how best to use and invest in the network.
**Our proposed approach**
This implies an ambitious agenda to deliver benefits for passengers and freight customers, requiring a step-forward in how we regulate Network Rail, as well as your ideas and support.
We propose to **regulate at a route-level**, supporting both the changes being made by Network Rail and a greater focus by routes on the needs of their customers. This includes making greater use of reputational incentives by formally and transparently recognising the achievement of route management teams in delivering improvements.
Alongside this shift towards routes, we propose to adopt a **tailored approach to the regulation of Network Rail’s system operator role**: its timetabling, capacity management, analysis and long-term planning functions. This would support it in making improvements to achieve better use of the network and also protect the ability of train operators to move passengers and freight across route boundaries. This could facilitate further traffic and revenue growth within the current network, improving overall value for money. This will require us to **improve how we measure what Network Rail delivers for passengers and freight customers**, including at route-level and by the system operator. The industry has been looking at how best to align the measurement of operational performance with what matters to passengers, something that we will look to build on as part of our monitoring of Network Rail. We will also ensure that our monitoring of maintenance and renewals provides effective oversight of asset quality and safety.
We will build on the work already underway to **improve the information available on what drives cost on the network**, explore how changes to track access charges might support industry-wide cost reduction, and look for incremental improvements to the incentives on all parties to deliver reliable train services and minimise the disruption from engineering work.
Finally, we set out some options for a **more flexible approach to investment in the network**, which would allow governments to choose from a menu of options for the regulatory treatment of enhancements. This will: support those governments wanting a more direct role in the monitoring and delivery of improvement projects; allow routes and local funders to take a larger role, within the funding constraints; and support alternative funding models, including private funding. We will also be available to those governments and other funders who want us to play an active role in the scrutiny of projects.
**Next steps**
This is an exciting and important opportunity, and one that implies significant change, not just for Network Rail’s routes and system operator but also for train operators, stakeholders and us. To be successful, we need the thoughts, ideas and involvement of the whole sector. This includes Network Rail, train operators, governments and other funders and customer representatives. This will be key to enabling us to deliver a review that is firmly rooted in the practicalities of the industry and which can make a real contribution to ensuring that the railway supports users, taxpayers and the economy, both now and in the future.
______________________________________________________________________
**Figure 1: Draft high-level milestones**
| Initial consultation | Conclusions on this consultation | ORR’s guidance to Network Rail on its strategic business plans | Governments set out requirements for CP6 and likely funding available | Network Rail’s strategic business plans | Consultation on our draft determination | Our final determination | Network Rail delivery plan published | CP6 begins | |----------------------|----------------------------------|-------------------------------------------------------------|---------------------------------------------------------------|----------------------------------------|----------------------------------------|------------------------|-------------------------------------|------------| | May 2016 | Late 2016 | February 2017 | May / early June 2017 | October 2017 | June 2018 | October 2018 | March 2019 | April 2019 |
1. Introduction
Purpose of this document
1.1 This document is our first major consultation on the 2018 periodic review (PR18). PR18 will determine:
- Network Rail Infrastructure Limited’s (Network Rail’s) outputs and funding in control period 6 (CP6, which we expect to run from 1 April 2019 to 31 March 2024). This will feed through into the service passengers and freight customers receive and, together with taxpayers, ultimately pay for;
- the charges that Network Rail’s passenger, freight and charter train operator customers will pay for access to its track and stations in CP6; and
- the wider ‘regulatory framework’, including the financial framework for Network Rail and the incentives to encourage it and train operators to perform well.
1.2 This document reflects both our work over the last year and the significant wider debate on Network Rail’s structure and broader issues. Its purpose is to:
- generate a discussion on how PR18 can support better outcomes for passengers, freight customers and taxpayers;
- seek views on our proposed priorities and objectives and the broad scope of the review;
- enable stakeholders to comment on our proposed high-level approach to PR18 and contribute views and ideas on the potential policy framework that could support this; and
- explain the proposed process for PR18, including how we would engage with stakeholders, to enable them to plan their involvement.
Structure of this document
1.3 The structure of the rest of this document is as follows.
- Chapter 2: Context for the review: the current issues facing the railway which are relevant to PR18.
- Chapter 3: Our proposed priorities and objectives for PR18, which take account of the context.
- Chapter 4: Our proposed high-level approach to PR18 to deliver our objectives.
- Chapter 5: Developing the high-level policy framework to implement our proposed approach to PR18. This seeks views on key issues that we will need to decide on relatively early, to inform subsequent decisions.
- Chapter 6: Process and engagement for PR18.
- Annex: References.
Working papers and other documents
1.4 We will shortly be publishing five working papers and a note concluding on our August 2015 system operation consultation. A brief overview of these working papers is set out in Figure 1.1 below, along with links to them and other relevant documents.
1.5 The working papers are intended to share some of our early thinking and provide an opportunity for interested stakeholders to comment on more detailed issues, options and proposals. This engagement will help inform our thinking, particularly ahead of formal consultation on more detailed proposals. 1.6 We have also produced a separate glossary that explains the key terms used in this document. We will update this over the course of the review as further documents are published.
Timetable
1.7 The three main phases of PR18 are described in chapter 6. Our draft timetable for the review sets out the timing of milestones in more detail. This includes our ‘final determination’, which will set out our final overall decisions on PR18 (in October 2018). The draft timetable (with an overview of the key milestones) is available on our website. We will keep this up to date, including following engagement with stakeholders on this consultation.
Next steps
1.8 This consultation closes on 10 August 2016.
1.9 At the end of each chapter, we have included a question box inviting comments on the points we have discussed. We also welcome any other points that stakeholders wish to make. We have produced a pro forma containing the questions, should you wish to use this to respond to us. Details on how to respond are set out in paragraph 6.39.
Figure 1.1: Associated PR18 documents (with weblinks)
| Initial consultation | |----------------------| | Related working papers (available from late May/early June 2016) | | WP1: Route regulation | WP2: System operation | | Potential approach for CP6, including proposed techniques and a strawman for implementation | Initial views on potential issues and opportunities | | WP3: System operation | WP4: Outputs | | Initial views on the regulatory framework for Network Rail’s system operator function | Our initial thinking in relation to the CP6 outputs framework | | WP5: Enhancements | | | Explores options for the funding of enhancements in CP6 |
| Other relevant documents | |--------------------------| | August 2015 system operation consultation conclusions | | Update on our review of charges (April 2016) | | Live timetable and summary of key milestones | | PR18 glossary | Our PR18 projects and contacts | 2. Context for the review
2.1 PR18 takes place at a time of significant change for the railway, and Network Rail in particular. This chapter sets out what we see as the context for the review, the main opportunities and constraints.
2.2 While the legal framework for the periodic review is unchanged, our approach to regulating Network Rail needs to reflect the changing context; not least the reclassification of Network Rail in 2014 and lessons learnt on how best to deliver enhancements.
Growing demand from passengers and freight customers
2.3 Network Rail’s network is increasingly busy, with train kilometres up by nearly 25% since 2005-06. Capacity improvements have benefitted passengers and freight customers and allowed more services to run, but passenger numbers and freight volumes are forecast to grow even further.
2.4 A busier network increases the challenge for Network Rail across its roles: there are more constraints on the time available to maintain and renew the infrastructure; timetabling additional services is more complex; greater passenger numbers need to be accommodated at stations and when boarding trains; and capacity constraints limit the expansion of services despite the strong demand for them.
2.5 Meanwhile, passengers are funding an increasing proportion of the costs of running the railway, with the balance met by taxpayers. Understandably, there is a focus on fares, value for money and the level of service that passengers expect in return.
2.6 The freight sector also continues to evolve, responding to the shift towards intermodal freight and the relative decline in coal and steel volumes. This raises issues around how the network might offer the operational flexibility that freight customers increasingly need.
Performance and efficiency
2.7 Between 2004 and 2012 Network Rail made significant improvements in its financial performance and efficiency, but these have since declined. Similarly, network performance for passenger and freight operators improved over the same period, but since then overall passenger performance has fallen to a ten year low.
Figure 2.1: Public performance measure and freight delivery metric since 2011-12 (Source: ORR and Network Rail) 2.8 Although Network Rail has successfully delivered many major improvement projects, there have been some high-profile examples where it has undertaken work in ways that had unintended and significant adverse consequences for passengers (e.g. the 2014 Christmas engineering works).
2.9 Similarly, its ability to deliver major enhancements has been questioned following significant increases in costs for some projects. This led to us finding, in 2015, that Network Rail was in breach of its network licence with regard to systemic weaknesses in the planning and delivery of its enhancement programme. It also led to the Hendy review of Network Rail’s CP5 enhancements portfolio. This review of the timing, scope and scale of a series of major projects confirmed that completion of the investment plans would go beyond CP5 into CP6, requiring a commitment of several billion pounds in CP6. In total, £9.5bn of expenditure on enhancement projects is now forecast to be incurred in CP6. All of these are planned to start their development in CP5. Also, £2.5bn of CP5 renewals work is now planned to be delivered following CP5.
2.10 These issues also raised questions about the roles of ORR and the Department for Transport (DfT) in setting the CP5 enhancements portfolio in England & Wales. In response, Dame Collette Bowe has completed a review of the process governing the planning of enhancements, setting out recommendations for how Network Rail, ORR and DfT should manage this. Separate arrangements will be agreed with Transport Scotland.
2.11 This has a number of implications, including the need: for the regulatory framework to adapt and reflect lessons learnt; and to encourage Network Rail to deliver more effectively with the resources it has, where it can have the most impact for users. More generally, the expectations for the company will need to be realistic and informed by the likely level of performance at the end of the current control period in 2019.
Reclassification and public spending
2.12 With effect from September 2014, Network Rail was reclassified as a public sector organisation. This led to some important changes, including greater involvement by the UK Government in the company and the treatment of Network Rail’s debt as public sector debt. This has had a number of significant consequences.
2.13 First, the company is now subject to different and less flexible financial constraints, notably through the UK Government setting a binding borrowing limit in England & Wales and, separately, in Scotland (in consultation with the Scottish Government). Given the cost pressures Network Rail has faced in CP5, these constraints have led Network Rail to defer renewals spend, defer and re-scope some enhancements projects and start an asset disposal programme. They have also increased the need for strong financial discipline within the company.
2.14 Looking ahead, Network Rail’s debt is forecast to increase to £51bn by the end of CP5 (based on projections from our last review – PR13, see Figure 2.2 below). This debt is used to fund capital expenditure that is added to Network Rail’s regulatory asset base (RAB). This would increase the RAB to £71bn by 2019. As previously discussed in our 2013 long term regulatory statement, the financial sustainability of this debt is an issue, particularly as the funding needed to service the debt will likely also grow. 2.15 Second, funding of the railway now has the same impact on public finances as, say, spending on education or health. This has increased UK Government involvement in a range of spending decisions that were previously left to the company (and overseen by ORR) and sharpens the focus on how rail investment compares to the other alternatives.
2.16 In light of the wider fiscal constraints on governments, this is likely to reduce the scope for new substantial capital investment to accommodate growing demand, on top of the substantial levels of investment currently planned over the next decade. Network Rail also needs to fund maintenance and renewals activities over time, and to do so in ways that achieve ‘minimum whole life cost’ of its assets. There is a link here between the funds available today and the costs borne by future passengers, freight customers and taxpayers.
2.17 These factors make it increasingly important to get the most out of the existing network and to target the limited capital spending where it will have the greatest impact.
2.18 More generally, these changes raise questions about the nature of the incentives Network Rail faces. In particular, the significant public and political scrutiny on the company increases the importance of reputation in prompting it to act. And while financial performance and efficiency remain important, the financial incentives to improve them are now different.
**Political and operational devolution**
2.19 In November 2015, Network Rail reorganised itself to put a stronger focus on its already devolved route businesses (referred to as ‘routes’ in this document), increasing the discretion that route managers have over operational decisions. This has been accompanied by the reorganisation of some central functions, including the creation of a directorate undertaking ‘system operator’ functions, one focused on providing support services to routes (pooling certain resources for the company as a whole) and a ‘technical authority’.
2.20 While we have increasingly focused our attention on routes since PR13, our regulatory approach in CP6 will need to reflect these
______________________________________________________________________
1 The centrally based system operator function within Network Rail covers activities such as timetabling, capacity allocation and long term planning. Our use of the term ‘system operator’ in this document relates to this function. more recent changes in how Network Rail operates. We also need to respond to the opportunities for greater route-level engagement that increased devolution brings for customers and local stakeholders.
2.21 Separately, political devolution could lead to a greater formal role for each of the national governments and also for regional authorities in transport decision-making (such as Transport for the North and Midlands Connect). This is in addition to the already well developed and evolving role of Transport for London. While these devolution matters are for government, the outcome has the potential to affect the periodic review and could increase the need for flexibility to adapt to new funding models. We will work with these bodies to facilitate any increased role for them.
Industry structures and incentives
2.22 For PR18 to support improvements for users and taxpayers, it needs to reflect the structure of Network Rail and the wider industry arrangements. This represents a significant challenge, given the scope for change at the moment, for example:
- the Shaw report into the future shape and financing of Network Rail, published in March 2016, has made recommendations to the UK Government on the future of Network Rail (see Box 2.1 below). Some of these relate to how we regulate Network Rail (and are broadly consistent with our proposed approach to PR18), whereas other aspects are for others to consider – in particular, Network Rail and the UK Government, who each expect to respond to the report later this year;
- by CP6, Network Rail plans to have raised £1.8bn from its assets in England & Wales, including potential disposals of its commercial estate and freight sites. This would imply an increase in total track access charges to offset the fall in Network Rail’s annual property income. The company is also considering a range of options (including different management models and disposals) for some of its stations, telecoms assets, and for its electrical distribution and traction power supply assets;
- the deep alliance between Network Rail’s Scotland route and the ScotRail franchise aims to deliver better outcomes for passengers, and raises the question of how the regulatory framework can best support this; and
- the Welsh Government is considering new models for delivering services on the Valley Lines, which might include changes to how this infrastructure is owned and/or operated.
2.23 While there will be challenges in developing a regulatory framework that is sufficiently flexible, there could also be opportunities for changes that unlock benefits. One such example relates to the funding arrangements for the railway, where the UK Government has:
- announced that a greater proportion of industry funding in England & Wales will be channelled through franchised train operators (rather than directly to Network Rail); and
- set out its interest in exploring how franchised train operators might be exposed to a wider set of changes in network charges. 2.24 This could improve incentives on train operators to work with Network Rail to reduce system-wide costs, and also would increase engagement in periodic reviews, improving scrutiny.
2.25 Further, following a review by the Competition & Markets Authority (CMA), there is work underway to consider how open-access passenger operators might play a larger role in delivering rail services. One part of this would involve reforms to the charging framework which, when combined with a proposed government-set levy on open access operators, would mitigate the adverse financial impacts of open-access entry on government funding while increasing the benefits of competition for passengers.
Box 2.1: The Shaw report
The Shaw report recommended that rail infrastructure management be centred on the needs of passengers and freight customers. In particular, this should come through strengthened route-level devolution within Network Rail, supported by a strong national system operation function and independent regulation. As part of this, it suggested the creation of a devolved route in northern England and a 'virtual freight route', which Network Rail is considering.
It also made recommendations on: how the role of government in the railway could be clarified, including through a long-term rail strategy; how enhancements planning could be improved; alternative ways to pay for the growth of the railways, both through smaller scale route-level investments to fund additional capacity and a potential role for private sector finance. It also drew attention to the need to develop the skills and diversity of its workforce.
Technological change and High Speed 2
2.26 The availability of new technology is likely to be a significant feature of CP6 and beyond. In particular, the deployment of new technology by Network Rail and the industry, including the European Rail Traffic Management System (ERTMS), traffic management and other systems (which Network Rail refers to collectively as the 'Digital Railway') could, in time, increase the capacity available on the network and bring other benefits.
2.27 The industry is currently developing business cases for the 'Digital Railway', which will inform decisions on the pace and the extent of the roll-out. These decisions will include whether ERTMS should be specified and funded outside of the periodic review process. But however it is specified and funded, these decisions will have major implications for Network Rail’s approach to maintaining and renewing its signalling equipment in CP6 and also affect decisions on the most appropriate way to increase capacity.
2.28 High Speed 2 (HS2) could also affect Network Rail in CP6, including the outputs that Network Rail will be able to deliver with the current network during the construction phase. It has potential implications for the deliverability of Network Rail’s renewals and enhancements programme, given the shared supply chain with HS2. More generally, it will have implications
______________________________________________________________________
2 ‘Digital Railway’ includes initiatives based around ERTMS (which includes the European Train Control System (ETCS), Traffic Management and GSM-R) and further systems (such as C-DAS). for how to maximise the benefits from connecting the two networks, to best support the UK economy and provide value to passengers and taxpayers.
Views sought and questions
This chapter sets out the main issues and opportunities that we consider set the context for the next periodic review. We invite stakeholders to comment on whether they agree or whether they consider there are additional significant points (and if so, to explain how these might affect the review). 3. Focusing the review where it can have most impact for passengers and freight customers
3.1 This chapter invites views on a proposed set of priorities for our review of Network Rail, reflecting the context of the previous chapter.
3.2 The approach we take to the review must be guided by our statutory duties and, given the limited resources and time available to stakeholders and to ORR, the most important priorities. We think this prioritisation should reflect where:
- we are well-placed to make a difference to the interests of passengers and freight customers, either directly or by facilitating change or action by others; and
- impacts are more significant, including where risks are high and need to be managed to sustain current successes.
Our proposed prioritisation
3.3 In order to consider how we might focus our work, we have identified six high-level outcomes relating to what Network Rail delivers, and which our review could support. We set these out in Figure 3.1. While the review will contribute to all of these outcomes, we set out below our proposed prioritisation.
Figure 3.1: High-level outcomes delivered by Network Rail
| A network that is… | More efficient | Better used | Expanded effectively | |--------------------|----------------|-------------|----------------------| | Taking cost-effective decisions on operating, maintaining and renewing the network. | Finding ways of improving performance and accommodating more services on the current network. | Informing decisions on enhancements, and delivering agreed projects in a safe, timely and cost-effective way. | | Safer | Available | Reliable | | Maintaining, and finding ways to improve, safety standards on the current network and as it is enhanced. | Taking effective decisions around possessions, mitigating the overall impact of these on end users. | Taking effective decisions to limit delays and cancellations, and their impact on users. |
Proposed high priority areas
A more efficient network
3.4 There is a challenge for Network Rail to demonstrate that it is as efficient as it could be, as inefficiency ultimately results in higher costs for passengers, freight customers or taxpayers. This is in even sharper focus given constraints on public spending, the costs faced by passengers and the need to support the competitiveness of rail freight.
3.5 There is also an opportunity for us to change our regulatory approach to support improvements in both how we set efficiency assumptions and monitor financial performance. This would build on Network Rail's own initiatives to move greater responsibility to its eight route businesses, by making greater use of comparison between routes to inform realistic cost allowances, increase the role of route customers, and make best use of reputational incentives to drive improvements. It will also be important to increase transparency around the cost drivers of the network and improve the link between these and what train operators pay.
A better used network
3.6 While there are £9.5bn of enhancements now planned for CP6, the constrained fiscal environment suggests there may be limited public funding available for further major projects. This makes it increasingly important to get the most out of the existing infrastructure in order to accommodate increasing passenger and freight growth, improve overall value for money and support the wider economy.
3.7 There is also potential for changes in how we regulate to support better timetabling, to improve performance and encourage growth within the current network. This would involve work to: strengthen incentives on Network Rail’s ‘system operation’ functions to maintain the benefits of a national network; look for improvements in how we measure performance; and explore changes to the charges for using the network aimed at improving how Network Rail and train operators make use of the network.
A network that is expanded effectively
3.8 Enhancement projects will continue to account for a substantial proportion of the costs of the network. Under Network Rail's current structure, any inefficient spending impacts on taxpayers and users. It is therefore important that the process for specifying and funding new enhancements is well informed, so that investment is targeted where it can have most impact and delivery is efficient and manages any necessary disruption.
3.9 The lessons of PR13/CP5 and the recommendations of the Bowe Review make clear the need for improvements in how enhancements are specified and delivered. Network Rail and DfT have now agreed a memorandum of understanding relating to enhancements. In addition, we have been working with DfT, the Scottish Government and Network Rail to identify options for handling enhancements in future, including how projects can be scrutinised in a manner that best reflects a government funder’s view on the best way to protect taxpayers’ interests. These options include a government specifying, funding and scrutinising enhancements separately from a periodic review. This could support greater alignment between network enhancement and franchising decisions.
3.10 To deliver this additional flexibility around the timing of enhancements decisions, the linkages with the wider regulatory framework need to be managed. For example, changes to the enhancements pipeline might affect the timing of renewals activity and the funds available for maintenance activity, while the delivery of projects will affect the service levels received by train operators, passengers and freight customers.
3.11 We think developing and refining these options is an area where significant further work is needed. This will need to be an area of focus in PR18, so that the periodic review and the approaches to enhancements work effectively together. For example, there will need to be a clear mechanism for how outputs set in PR18 might need to be revised if, during CP6, new enhancements are specified and delivered in a way that affects them. Likewise, there will need to be clarity on how Network Rail will manage enhancements within its funding and debt limits and how it will identify the appropriate level of renewals for CP6. These arrangements also need to complement the existing investment framework that supports government, train operator and third-party investment in the network.
Proposed areas for continued focus
A safer network
3.12 Great Britain has one of the safest railways in the world; a position that requires continued focus and attention to maintain.
3.13 At this stage, we do not anticipate significant stand-alone safety-related projects to be delivered through the periodic review, unless specified by the Secretary of State (on behalf of Great Britain as a whole) in his high-level output specification (HLOS). But throughout the review, we will maintain our focus on safety to ensure that Network Rail is sufficiently funded to manage (and, where appropriate, reduce) safety risks, including in areas such as occupational health and worker safety. This includes ensuring there is adequate spending on safety-critical maintenance and renewals.
3.14 Reflecting this, safety will play a significant role in determining our approach.
Proposed areas for incremental improvement rather than fundamental review
A network that is available and reliable
3.15 Network Rail makes a number of important trade-offs when planning and undertaking maintenance and renewals activity, including how best to balance the requirements of passengers and freight customers with its need to access the network for engineering works. There are two broad aspects to this:
- the possessions and performance regimes in track access contracts (referred to as ‘Schedules 4 and 8’) provide the principal financial incentive to encourage appropriate decision-making by Network Rail and train operators; and
- the ‘regulated outputs’ that we typically set in respect of network availability, punctuality and avoiding cancellations to encourage Network Rail to improve.
3.16 Feedback on the possessions and performance regimes indicates that most (but not all) stakeholders think that the broad structure of these regimes is fit for purpose. We have considered this feedback and we do not propose major changes to these in PR18. Instead, we propose to focus on incremental improvements. This could still lead to some important changes, including a review of the linkages with passenger compensation following our response to the Which? super-complaint. This more focused review should reduce the burden on industry in this area.
3.17 Similarly, with the framework for outputs (and for monitoring delivery of these), we see this as an area for incremental improvement and simplification, rather than wholesale redesign. This would include changes to ensure outputs more closely reflect what matters to passengers and to take account of the role of route scorecards (which Network Rail has begun to use as a way for its routes to agree priorities with train operators and for progress to be measured against these).
Proposed aim for the review
3.18 In summary, we propose to focus our work on areas that particularly impact upon the overall efficiency of the network and on changes that will support improvements in how we make use of the existing network. This will benefit passengers and freight customers, by putting downward pressure on cost and by supporting additional services and performance, against a background of an inevitably constrained budget for additional enhancements.
3.19 We also think we can update our regulatory approach to support Network Rail to deliver these improvements: namely, through more targeted regulation at a route and system operator level.
3.20 Further, we are looking at options for greater flexibility in the approach to enhancements. In practice, this means that some funders may choose to take a larger role in ensuring that these projects are effectively scoped and delivered efficiently. There is, however, an important role for ORR here, not least in making this work alongside the periodic review process and monitoring. This shift in focus also serves to highlight the importance of good quality information around the options for enhancements (to inform those looking to fund improvements) – an important element of Network Rail’s system operator role.
3.21 Finally, safety will continue to play a significant role in determining our approach, particularly in our assessment of whether there are sufficient levels of maintenance and renewals.
3.22 Consequently, our proposed aim for CP6 is:
“A safer, more efficient and better used railway, delivering value for passengers, freight customers and taxpayers in control period 6 and beyond”
3.23 To deliver this aim in line with our proposed focus for the review, we have developed the following objectives:
- to establish a framework that encourages Network Rail to:
- ensure the ongoing safety of the network;
- improve the efficiency of operating, maintaining, renewing and enhancing each of the routes in CP6 and beyond; and
- improve its understanding of the capacity and performance of the network.
- to support government funders and operators to make better informed decisions about expansion and use of the network.
How we will deliver our aim and objectives
3.24 As we develop our proposals in more detail, we propose to place particular emphasis on the need to identify opportunities to:
- encourage a greater role for Network Rail’s train operator customers and stakeholders, and ensuring decisions are focused on the interests of current and future end users and taxpayers; develop a framework that is suited to regulating Network Rail as a public sector organisation;
facilitate devolution of transport decision-making to regional funders and realise the opportunities presented by devolution of responsibilities to Network Rail’s routes; and
ensure that funders can take informed choices, including by improving the understanding of costs and the capability of the network.
3.25 We have noted above how the priorities link to key aspects of our proposed work programme. This work is discussed in more detail in the next chapter, and is also summarised in Figure 3.2 below.
3.26 In each case, we will need to develop options and detailed impact assessments. This will include understanding the costs of transition and implementation, which will inform the thinking on which changes to make and how quickly they might be implemented. For example, in some areas, we may only be able to make limited progress during PR18 or by the end of CP6, with further progress to be made subsequently.
3.27 Consistent with our statutory duties, we think that this programme of work will allow us to deliver improved outcomes to:
- passengers, through: the potential for lower costs to translate into lower fares; improved management of the network providing for additional services to be accommodated; and incremental improvements to the management of performance;
- freight customers, through: safeguarding network-wide coherence; improved timetabling and system management; and working with governments to ensure that the benefits of freight are reflected in the overall costs they face;
- taxpayers, through: lower network costs; and improved information about when and how best to fund additional investment in the network; and
- the wider economy and society, through: lower network costs and a better used, more reliable, railway that supports economic growth and delivers environmental benefits through reduced road congestion.
Figure 3.2: Our proposed approach to delivering our priorities Views sought and questions
We welcome views on the proposed relative priorities for the review, as well as any other areas that should be prioritised (in which case, we would particularly value views on what should not be prioritised as a consequence). 4. Our proposed approach to the review
4.1 This chapter discusses our high-level approach to delivering our aim and objectives for the review. In particular, how we propose to:
- focus on regulating at a route-level;
- improve the regulation of system operation;
- refine the framework for outputs and how these are monitored;
- increase transparency around costs and improve incentives; and
- support new ways to treat enhancements.
4.2 To do this, we propose to make a number of changes to how we regulate Network Rail which, taken together, mean that this review is likely to be significantly different from previous ones. We will also consider the extent to which the regulatory framework needs to reflect the pace of the roll-out of the ‘Digital Railway’, recognising that this is currently uncertain.
A focus on regulating at a route-level
4.3 Network Rail is now organised around eight route businesses, which are supported by a system operator function and centrally-based business units providing services to them (e.g. major projects, procurement, HR, etc.).
4.4 This presents an opportunity to improve how Network Rail is regulated, by focusing more at route-level (going beyond our existing approach of regulating Scotland separately from England & Wales). This would allow us to put greater reliance on comparison between the route businesses, rather than having to rely on comparisons with other overseas networks. It would also improve understanding (by Network Rail, ORR and others) of key cost drivers and enable the most effective approaches across the company to be highlighted and used more widely.
4.5 Route-based regulation would also provide a response to the challenge of providing effective incentives for a large, publicly owned business. In rail, the reputations of businesses and individuals matter. We can use this pride in the railway to recognise those who are innovating and improving efficiency, while also providing an additional stimulus for those in under-performing areas to raise their performance. This can usefully supplement the information and incentives that are created through financial incentives and monitoring.
How this could work
4.6 A focus on route-level regulation could involve a range of different techniques, employed by us and/or Network Rail. As part of the periodic review we could:
- request that business plans and submissions to ORR come from each route. This would allow routes to take different approaches, and submit evidence that reflects the challenges and opportunities at a route level, within an overall structure set by Network Rail centrally; encourage greater involvement by train operators and stakeholders in informing route plans, so these can be based on better evidence and more closely reflect the priorities and interests of their end users (within funding constraints);
facilitate scrutiny by train operators and stakeholders at a local level, complementing our role in the assessment of asset policies and efficiency;
use data to benchmark each route’s performance, which would provide better information to check and challenge route-level business plans. We would not expect these techniques to be definitive – in part due to the currently limited data and some of the differences between routes – but they could allow us to target our scrutiny where it will have most impact and to provide a basis for better informed conversations with route managers; and
set outputs and funding at a route-level, which would allow us to use comparison of route-level plans and performance to provide greater assurance on whether output targets would be realistic, fair and deliverable, as well as reflecting the involvement and evidence from stakeholders (as discussed above).
4.7 In CP6, following the periodic review and our determination, our monitoring and the incentives we set Network Rail could involve:
greater use of comparison between the routes, building on the monitoring already taking place at route-level;
publication of scorecards to report routes’ relative performance in a range of areas – allowing government and devolved funders, operators and users to understand better the performance of routes and hold route managers to account – supporting reputational effects and highlighting good practice;
management incentives could allow the link between the performance of route teams and the rewards they receive to be strengthened; and
information coming directly from routes, with our detailed scrutiny being focused more on those with weaker justification for their costs and activity levels, and less effective systems for collecting and managing robust data.
4.8 It may not be practicable to apply all of these techniques fully in the current review. For example, it may be the case that some of them can only be rolled out in full over a longer period. But we think that applying at least some of them in this review is likely to deliver benefits for customers, just as they have done in the regulation of airports and the water, gas and electricity distribution networks.
4.9 Route-level regulation should not mean an overly burdensome review involving eight times as much work. We will need to work differently. We will need to see, in a transparent way, the information that a route should be using to manage its activities, but using the above techniques could allow us to place greater reliance on route comparison and greater customer engagement, so that our detailed scrutiny is increasingly targeted and risk-based.
4.10 Our ability to do this would be increased by:
Network Rail supporting this shift in regulation, including through changes to working practices and culture, and improvements in benchmarking data. Our ability to take a more focused approach in PR18 will depend on the quality of the available data to enable effective comparisons. Another key change will be to find ways to increase routes’ accountability for their own results. This might involve them providing certain information directly to us. Indeed, the Shaw report noted the importance of routes submitting full and separate regulatory accounts. This might mean that the role of the ‘centre’ changes somewhat, focused more on providing challenge and assurance and helping to make decisions on the use of scarce resources, leaving more decisions to route managers; and governments providing the flexibility (in their high-level output specifications (HLOSs)) for route-level outputs to be determined by us, which would facilitate route-level variation and allow each route team to have its own set of realistic regulatory targets, against which it is held to account. This in turn provides for the needs of route stakeholders and current and future consumers to be better reflected in the setting of these targets, and for these to reflect the best available evidence at the time. We recognise of course that it is for governments to decide how they specify their HLOSs, and that the approach taken in Scotland might need to be different to reflect that the Scottish HLOS relates to a single route.
4.11 We will need to do more work to develop these ideas, and note that Network Rail has provided significant support for the concept of moving more responsibility towards its routes. We think that there is a significant opportunity here to increase the effectiveness of regulation, so that our oversight can complement that undertaken by the ‘centre’ of Network Rail and its board; providing better assurance without necessarily increasing the overall costs of that regulation. Our subsequent working paper on route-level regulation will look at some of these issues in detail.
Improving system operation
4.12 The rail network has supported a substantial increase in both passenger journeys and freight volumes. Recently, this has been possible through the lengthening of passenger and freight trains, significant investment in infrastructure and efforts to make better use of the available network capacity.
4.13 Investment in the network and rolling stock inevitably comes at a significant cost. This emphasises the importance of Network Rail making the best possible use of the existing network, building on the significant growth in the use of its network over the last decade.
4.14 At present, the effectiveness of Network Rail’s system operation functions is not subject to specific regulation or monitoring by us; rather, our regulation mainly focuses on Network Rail’s infrastructure management functions. We also have a set of incentives that arguably place significant weight on certain aspects of passenger and freight performance (e.g. public performance measure (PPM) and freight delivery metric (FDM)), whilst providing limited stimulus to accommodate additional traffic or to identify better ways to use the current network.
4.15 For CP6, we think that our regulation of Network Rail should identify the ‘system operator’ activities that Network Rail undertakes centrally, and involve a tailored and more focused approach to these functions. This would mitigate the risk of increased devolution to routes leading to incoherent planning and poor service provision to those crossing between route boundaries.
4.16 Routes currently play a key role in undertaking some important aspects of operating the system, notably the operation of signalling and leading the response to most disruption. As this role is not expected to change, we would not expect our regulation of the central system operator to include these activities. This means that when we determine route-level outputs and the related monitoring framework, we will need to consider how these route-level system operation activities should be captured.
How this could work
4.17 While there is a range of different approaches we could take, our approach to regulating Network Rail’s centrally based system operator might involve a combination of the following.
- **A set of performance measures or outputs.** These might include some quantitative measures (e.g. national or system-wide operational performance, scale of timetable conflicts) and customer-facing measures (e.g. operators’ satisfaction with timetabling processes).
- **Financial incentives on the system operator,** reflecting key aspects of overall performance and facilitating any changes by Network Rail to more closely link system operator performance to the remuneration of relevant staff.
- **Financial information about the system operator,** including data about its costs and assets and how these might be expected to evolve over time. With the main priority of the system operator being to realise the value of the network, our focus could be on the value it adds, while retaining an appropriate level of scrutiny on its costs.
- **Greater transparency about performance,** to allow train operators, stakeholders and funders to challenge how well the system operator functions are being delivered, enhancing reputational incentives.
4.18 We will also need to consider how regulation can best support Network Rail’s initiatives to improve its analytical and timetabling capability. This might involve different forms of oversight, such as monitoring the delivery of improvement projects or measurement of the ‘maturity’ of certain key processes.
4.19 We will shortly be publishing two working papers on how our regulation in this area might develop, on which we welcome thoughts and ideas from stakeholders. We will also publish a conclusions note from our August 2015 consultation on system operation at the same time.
Refining the framework for outputs and how these are monitored
4.20 The outputs framework (including the associated arrangements for monitoring outputs) plays an important role during a control period. It encourages Network Rail to improve outcomes for passengers and freight customers, and provides for transparent oversight of its performance in key areas, including efficiency and its maintenance and renewals activities.
4.21 We will review the outputs framework, with a view to making changes to reflect the greater focus on Network Rail’s routes and system operator role. This is likely to focus on: increasing the involvement of train operators and other local stakeholders in setting outputs, so outputs better reflect the needs of customers and those funding the railway;
improving how the experience of passengers is reflected in output measures and monitoring. This would build on recent work led by the industry to consider the case for measuring operational performance in ways that reflect all delays to services (at all stations) and take account of the number of passengers on each service. It would also cover other areas where Network Rail is responsible for delivery (e.g. network availability); and
exploring the appropriate outputs for system operation activities.
4.22 In terms of monitoring, we are exploring the following:
increased transparency, so that train operators and stakeholders can increasingly hold routes and the system operator to account, supported by our own oversight;
linked to the above, the role of route scorecards in the framework; and
whether our approach to monitoring maintenance, renewals and asset condition reflects the risks that spending constraints might present for renewals volumes, in terms of the implications for longer term efficiency and safety.
4.23 More generally, we will look at the overall balance of the outputs framework in light of route-level regulation. This may include stepping back from more detailed monitoring where a route has demonstrated that it is effective in a particular area. Similarly, we will need to look at the extent of our role as Network Rail becomes increasingly accountable to its train operator customers, as they, in turn, take a bigger role.
4.24 At this stage, we do not propose to focus on reforms to the measurement of freight performance, as the feedback we have received indicates that FDM is broadly fit for purpose.
4.25 Our subsequent working paper on outputs will set out our initial thinking on how the outputs framework might be improved for CP6. This is intended to initiate a dialogue with stakeholders on different approaches.
Increasing transparency around costs and improving incentives
4.26 Access charges and the incentives around performance and possessions affect the decisions that Network Rail, train operators and funders make, influencing both the cost of maintaining and renewing the network and how efficiently network capacity is used. They can therefore play an important role in improving outcomes for passengers, freight customers and taxpayers.
4.27 The potential for governments to channel more funding through train operators (rather than through direct grants to Network Rail) and to increase franchised operators’ exposure to Network Rail’s costs provides the potential for a range of improvements in how charges affect behaviours. How this could work
4.28 We have been working with stakeholders to explore options for improving the structure of charges, both through our own engagement with them and by drawing upon the work led by the Rail Delivery Group (RDG). We consulted in December 2015 and in April 2016 published an update setting out our view that there are three broad ways to deliver improvements for CP6 and that these would be the focus of our work in this area. These are to:
- **develop a better understanding in the industry of what drives infrastructure costs** (i.e. those relating to the costs of providing and investing in the network), including improving information about where these costs fall and what activities/types of use causes them to be incurred;
- **improve the current short-run variable charges** (i.e. those relating to the costs of operating and maintaining the network). This could address known weaknesses with existing short-run variable charges and could involve considering options to link charges more closely with the costs faced by routes; and
- **explore how charges might better reflect infrastructure costs** and how they vary over time and by use. This could lead to higher charges in costly locations – where operators cause these higher costs to be incurred – and lower charges in less costly areas and for operators who are not causing costs to be incurred.
4.29 Our update confirmed that we were not proposing to take forward options that directly link charges to the relative value of capacity in different parts of the network (to users and society). But we will need to ensure that the overall charging structure sends sensible signals to make best use of scarce parts of the network, whilst also facilitating use of those parts of the network where there is spare capacity.
4.30 Linked to this, we noted in our December 2015 consultation that open access operators currently pay short-run variable charges, but do not pay fixed track access charges. As a result, while franchised services contribute to both short-run variable costs and a proportion of fixed costs, open access operators only contribute towards short-run variable costs. We noted that this indicated a need to consider whether some open access operators should make a greater contribution to network costs. The CMA’s work in this area (see paragraph 2.25) is also relevant to this. Our proposals on the structure of charges in late 2016 will consider this further.
4.31 We will continue to work with industry to refine and evaluate detailed options for individual charges (including the capacity charge) within these prioritised areas, and will look for opportunities to simplify or abolish charges that do not deliver sufficient benefits.
4.32 We will also continue our work to identify incremental improvements to the incentives for possessions and performance (‘Schedules 4 & 8’). This reflects the views received earlier this year from stakeholders, which indicated that our focus should be on improving these regimes rather than considering fundamental changes. This will also include consideration of any changes to Schedule 8 relating to the super-complaint on passenger compensation, on which we issued our report in March 2016. Supporting new ways to treat enhancements
4.33 There are a number of changes that highlight the need to consider new approaches to the treatment of enhancements in this review. These include:
- **the problems that have been experienced in the delivery of some PR13 enhancements**, where the forecast cost of some schemes has increased well beyond the levels expected at the time of PR13. This has led to the whole programme of projects in England & Wales being reviewed for its deliverability, with material changes proposed to the timing of some major enhancement projects as a result;
- linked to the above, **a number of projects specified by government and included in PR13 were not well developed** at the time of the review. This led to the setting up of the ECAM(^3) mechanism to address the associated cost uncertainty, but ECAM itself has been the subject of recent debate;
- **the impact of reclassification on the financial framework for Network Rail**, which has meant the UK Government has imposed binding borrowing limits on the company. This reduces Network Rail's ability to manage the consequences of over-spends or changed funder requirements on individual projects through issuing additional debt;
- moves towards **political devolution and the increased diversity of funders**, whereby national and regional governments, transport authorities and other third parties could play a larger role in identifying and funding enhancements;
- the establishment of a **memorandum of understanding between DfT and Network Rail** that clarifies each party's role in enhancement projects in England & Wales;
- the potential benefits from **aligning major enhancement, franchising and rolling stock decisions**, which could point towards moving away from a five yearly specification of enhancements using the periodic review process. Instead there could be a ‘pipeline’ of enhancements with decisions to commit to specific enhancements at a variety of decision points, for example at the same time as decisions on franchises.
4.34 DfT has highlighted potential benefits from changes to take the funding of enhancements outside of a periodic review and has asked us to explore the implications. This could help to address the alignment point above and provide a more flexible approach to the funding of enhancements.
4.35 To explore this option and, more broadly, decide on the overall approach to enhancements in PR18, it is useful to review what criteria should apply and what the main questions are which need to be answered in terms of:
______________________________________________________________________
(^3) The **Enhancements Cost Adjustment Mechanism** (ECAM) involves ORR assessing – within the control period – whether Network Rail's cost estimate for each project is fully justified, whether it has sufficiently considered opportunities for more cost effective delivery in line with best practice and whether the scope of the project has been developed in line with Network Rail's governance with input from key stakeholders.
- the different decisions affecting enhancements;
- what the pros and cons of alternative approaches might be; and
- what the role of ORR and other parties should be.
4.36 Possible criteria include whether the overall approach:
- supports the planning and delivery of enhancements;
- supports the necessary interactions between enhancements and the rest of Network Rail’s business for planning, delivery and monitoring purposes, and hence also for the assessment of financial risks;
- promotes efficiency in the costing and delivery of enhancements and a clear and robust process for RAB additions;
- works for a variety of both current and future funders, public and private, and facilitates different funding models;
- promotes transparency around the planning, delivery and financial aspects of enhancements; and
- supports clarity of roles between all parties.
4.37 Working to these criteria would protect the interests of users and funders and should build trust and confidence in the overall process in the future.
4.38 The main questions and issues that would need to be considered could be grouped under three headings: planning; financial; and regulatory. We have set out below what think these may include.
Planning
- It would need to be decided how different enhancement projects might be treated – for example: would all projects covered by the Hendy review be funded within PR18, with only new projects be funded outside PR18? And would the concept of ring-fenced funds be retained and funded within PR18?
- What should the role of Network Rail’s routes in the enhancement planning process be, in light of the potential for them to have more responsibility for decision-making and our proposals for a shift towards route-level regulation?
- For projects to be funded within PR18, DfT and Transport Scotland would commit to these in their HLOSs. But for other projects to be funded outside PR18 we would need to decide who commits to enhancement projects and by when. One model could be that DfT commits to projects at the same time that franchises are re-let, but there may be other trigger points. The Welsh Government, regional authorities and sub-national transport bodies will have their own perspectives on this.
- Once projects are committed (in, say, a development or delivery sense), should Network Rail publish all of its commitments in a delivery plan, whether or not these are part of the periodic review and however they are funded? Currently all PR13 funded projects milestones are published but not the milestones for many investment framework projects.
- There is currently a change control process around the Network Rail delivery plan – would this process need to be altered under different funding scenarios? Financial
- How does the decision to fund within or outside a periodic review affect the setting of the borrowing limit and our HLOS affordability assessment?
- The choices around how enhancement projects are funded, as the funding decision could be separated from PR18, but projects could be also funded through grant funding instead of the current debt funding. This would mean projects were paid for upfront rather than through their cost being spread over time.
Regulatory treatment
- The delivery of enhancement projects needs to be monitored and, if necessary, enforced in line with Network Rail’s licence. Does whether projects are funded within PR18 or not affect how that process works?
- There needs to be clarity around the link to RAB additions, and the charges train operators pay, which are partly based on the RAB. RAB additions are made on the basis of efficient costs. Previously, the ECAM process set a baseline efficient cost and a mechanistic underspend/overspend framework was applied when determining the value to add to the RAB. We are currently discussing with DIT ending the ECAM process in England & Wales and using the Hendy review as an efficient baseline, which would help to meet the Bowe recommendations on clarity of roles. If in the future enhancements were to be initially funded outside PR18, but the costs were still added to the RAB, we would need to establish a process to decide whether – and, if so, how much of – a project’s costs should be added to the RAB.
- There needs to be clarity around how the decision to fund projects within PR18 or not links to Network Rail’s business as a whole. For example, the timing and scale of projects will affect the setting and delivery of other outputs, the financial risk Network Rail faces and the forecasting of deliverability. This in turn affects how we monitor delivery by Network Rail against a number of its regulated outputs, including network performance and asset condition.
- We need to decide what happens to the current investment framework which already provides for enhancements to be funded outside of a periodic review.
- As Transport Scotland may not change its approach to funding some or all enhancement projects in PR18, are there any issues around how different approaches from different funders would work together?
4.39 We welcome views on the issues discussed in this section, including whether we have missed any material points. More detail on the topics covered will be provided in our forthcoming working paper on enhancements.
ERTMS and related technology
4.40 Under its ‘Digital Railway’ programme, Network Rail is coordinating its approach to ERTMS and related technologies, working with the industry. This programme would involve significant industry change, but has the potential to offer greater capacity, better connections and greater reliability.
4.41 The ‘Digital Railway’ programme raises significant cost implications. Network Rail is proposing that ERTMS be rolled out much sooner than it planned in PR13. The funding requirements for this mean that governments will have a key role in deciding the extent and timing of the roll out. As with enhancements, this suggests that different options for the treatment of the ‘Digital Railway’ need to be developed to allow flexibility for governments to decide the most appropriate way to fund elements of the ‘Digital Railway’.
4.42 Working with Network Rail, DfT and Transport Scotland, we have developed some broad regulatory options for treating the ‘Digital Railway’. In general terms, these are analogous to the options identified for enhancements, with funders either taking decisions in parallel to the periodic process (when evidence and funding allows decisions to be made), or as part of the periodic review process. It may well be the case that sufficient clarity will not exist about the timing and funding of the ‘Digital Railway’ programme for it to be included in our determination for CP6. If so, the impact of these decisions will, therefore, need to be handled through ‘change control’ processes, or a bespoke set of arrangements.
Views sought and questions
We would like to know if you agree with the overall approach that we have set out for the review.
We would also welcome additional suggestions and proposals for how we might adapt our regulation to the current context. It would be helpful if you could arrange your comments around the following: route-level regulation; system operation; outputs & monitoring; charges & incentives; approaches for enhancements; and ERTMS and related technology. 5. Developing the high-level framework for the review
5.1 We need to decide what the high-level approach described in chapter 4 would mean for the review and the determination that we will set Network Rail for CP6. We welcome ideas and thoughts from stakeholders on this. To inform thinking, in this chapter we set out a potential way we think this could work.
A potential framework for our determination
5.2 To implement our approach, our determination for Network Rail could comprise:
- a separate ‘settlement’ for Scotland and each of Network Rail’s routes in England & Wales, including specific financial arrangements (i.e. forecasts of efficient cost, assumed required revenue, debt and regulatory asset base) and a set of outputs. The settlement for Scotland would continue to reflect the separate legislative arrangements and the distinct role of the Scottish Government.
- a tailored and more focused approach to our regulation of Network Rail’s system operator functions, which might involve a full separate ‘settlement’ or be limited to separate outputs and increased transparency; and
- the framework for monitoring and holding Network Rail to account at the relevant level (e.g. route, system operator or overall). This would fit with how Network Rail is now structured, providing for clearer accountabilities for the management within the company. It would also align with a more customer-led approach by Network Rail’s business units and allow us to monitor and publicly report on the performance of each route / function against its settlement.
5.3 Although comprised of separate settlements, we would still establish a single determination for Network Rail as a whole (in one document, as in prior reviews), reflecting that it is ultimately a single regulated company. This is summarised in Figure 5.1.
Figure 5.1: A potential framework for our determination 5.4 Within this potential framework, there would be many issues and implications to be considered, including what these separate settlements would mean in practice. Many of these are likely to apply to any alternative proposals that may be suggested. We will work with Network Rail, governments and stakeholders, to identify and consider these, including:
- the appropriate way to regulate the ‘core service activities’ that would remain the responsibility of the ‘centre’ of Network Rail. These include the ‘technical authority’ and ‘corporate core’, and the route support functions (i.e. the ‘Route Services Directorate’, ‘Infrastructure Projects’ and ‘Digital Railway’). These terms are described on page 10 of Network Rail’s response to the Shaw report consultation;
- the fact that Network Rail remains a single company, corporately accountable for all its activities, which the framework would need to reflect;
- the role of Network Rail centre in relation to the routes and the system operator, such as: control of the money flows within the company; the centre’s oversight role for plans developed by the routes and system operator; how responsibility would be allocated for national outputs (such as for freight performance); and more broadly, how the centre can support our approach; and
- how provisions in track access contracts may need to change (for clarity, train operators would still only need one track access contract with Network Rail to use multiple routes).
5.5 Recognising the important issues that need to be considered if this potential approach was adopted, the rest of this chapter looks at each of the five key elements of a settlement (as per Figure 5.1) and considers some of the implications. Our forthcoming working papers on route-level regulation, system operation, outputs, and enhancements will provide more detail on these issues.
**Outputs**
5.6 Our proposal to regulate routes and the system operator function separately has implications for how outputs would be determined during the review. Our subsequent working paper on outputs will, among other things, look at:
- setting outputs at a route level, including how our role would need to change to reflect Network Rail’s closer engagement with train operators and its stakeholders (this is also discussed in paragraphs 6.25-6.29). This could include us specifying the minimum number of key output areas needed to assure network capability and enable route comparisons, providing for train operators and key stakeholders to then inform levels and any additional output areas (subject to funding constraints);
- improving the measurement of the performance delivered to passengers, so that it reflects more closely the impact of Network Rail’s delivery on outcomes for passengers;
- how we might develop better output measures for the centrally based system operator; and
- whether it is necessary to set outputs for Network Rail’s central core and the route support functions. Revenue requirement and duration of CP6
5.7 We intend to continue to use the ‘building block’ approach to set Network Rail’s funding. This approach is explained further on our website.
5.8 In line with the Railways Act 1993, we will set Network Rail’s funding requirement separately for Scotland and for England & Wales. Within this overall determination, we propose to set separate requirements for individual routes, with routes having separate regulatory accounts, and debt and RAB apportioned to them (consistent with the suggestion in the Shaw report).
5.9 In making any route-level expenditure assumptions or in setting outputs, we would make more use of comparison and benchmarking between routes. This could involve qualitative assessments between routes as well as some statistical analysis, where suitable data exists (taking account of differences between routes). We will need to establish how these processes complement the role undertaken by the centre of Network Rail to scrutinise route plans and ensure that they are consistent with the company’s resources (e.g. its funding and centrally held assets that are shared across routes). Our working paper on route-level regulation will set out our ideas on this.
5.10 Given Network Rail’s recent difficulties and the fact it is a public sector organisation, we will need to decide whether our efficiency assumptions should be based on what a fully efficient company might be expected to achieve, or reflect a realistic level of challenge for what Network Rail might reasonably be expected to achieve in practice. Either way, this choice will have implications for the charges faced by users and the incentives and motivation of Network Rail’s staff.
5.11 We would also need to make route-level assumptions on income. We would expect each of the following to be recognised at a route level:
- income received from access charges;
- receipts/payments under Schedules 4 and 8;
- property and other income (i.e. the ‘single till’ income); and
- any network grant.
5.12 At present, net income from activities such as commercial property offsets some of Network Rail’s other costs and leads to lower access charges (the ‘single till’ approach). We have not identified any convincing reasons to depart from this approach for this review. We note that the potential disposals of assets mentioned in paragraph 2.22 will affect the level of this income.
5.13 Further, we have not identified any convincing reasons to depart from a five year control period over which to set the revenue requirement. Subject to considering any views from the Secretary of State, Scottish Government and other stakeholders, we therefore expect CP6 to run from 1 April 2019 to 31 March 2024.
Financial framework and change control
Financial framework
5.14 The financial framework includes our approach to incentivising and monitoring Network Rail’s financial performance. This includes, among other things: setting Network Rail’s cost of capital (which remains important, not least because it is used to calculate the charge Network Rail levies on third parties investing in the railway, such as Crossrail);
- deciding the approach to the management of financial risk;
- the arrangements for making additions to the RAB, where appropriate; and
- the financial ring-fence (which limits Network Rail’s exposure to financial risk by placing restrictions on the company’s ability to take part in activities that are not core to its role as operator of rail infrastructure).
5.15 After reclassification, Network Rail ceased issuing debt on the financial markets and now borrows from the UK Government instead. This prompted the introduction of a hard limit on Network Rail’s expenditure in CP5, with separate borrowing limits for England & Wales and Scotland.
5.16 These limits have largely superseded the limits on the level of indebtedness that we determined in PR13. But they raise challenges as a fixed nominal borrowing limit does not self-adjust to deal with major changes to capital projects or inflation. Indeed, a fixed nominal borrowing limit exposes Network Rail to inflation risk. This has not been a major issue in CP5 as inflation has been lower than we forecast in PR13, but it could be a material issue in CP6.
5.17 We expect that the borrowing limits will remain in their current form for the foreseeable future. The borrowing limits and the process for agreeing them is the most important financial issue affecting Network Rail in CP6. It is important that all stakeholders understand how the process for setting the borrowing limits affects Network Rail’s planning and our determination. More generally, managing financial risk through nominal limits on total borrowing highlights the importance of maintaining sufficient flexibility in our regulatory processes and Network Rail’s plans to adjust in response to change, including its own out/under-performance.
Managing uncertainty and change control
5.18 The regulatory framework for Network Rail needs to be sufficiently flexible to manage a range of different sources of uncertainty and risk. These include a mix of factors, some of which are largely within Network Rail’s control, and some of which are not. These risk and uncertainty factors include, for example:
- uncertainty about the level of efficiency improvements that will be achieved;
- the cost of key materials and staffing costs;
- changes to the programme of enhancements, including their scope, timing and cost;
- operational risks and the potential for events outside of the company’s control; and
- risks with financing costs, e.g. interest rate risk.
5.19 In principle, there are a number of ways to manage these uncertainties and risks. However, many of the potential tools for managing the financial consequences of adverse changes are subject to important constraints and/or trade-offs:
- increased borrowing and government funding: these are constrained by available taxpayer funding, including the fixed borrowing limit;
- higher charges to users: these are constrained by the need to provide train operators with certainty on charging levels, the costs of making changes, and the need to include mechanisms to adjust charges in the relevant access contracts;
- reductions in the level of outputs delivered (in ways that save costs, in the short term at least): this would lead to a deterioration in the service provided to train operators, passengers and freight customers;
- reductions in volumes of maintenance and renewals: this would lead to deteriorations in asset condition and likely lead to the need to ‘catch-up’ on this work, increasing costs over time, or have implications for operational performance and safety; and
- delays to planned enhancements: this would limit growth and/or delay the delivery of planned improvements for passengers and freight customers.
5.20 It is therefore vital that the settlements in our determination are based on good quality information and include a financial buffer to respond to changing circumstances. So, we would not expect to set a determination that commits all of Network Rail’s available funds. It will also be important to retain sufficient flexibility should Network Rail be committed to delivering further enhancements or other major projects.
5.21 However, variances outside any buffer would prompt some difficult decisions and there needs to be a shared understanding of how these decisions would be taken. At this stage, we do not think changes to the level of train operators’ track access charges outside of a periodic (or ‘interim’) review would be appropriate.
5.22 In practice, this means that any variances outside the financial buffer would require adjustments to outputs, enhancements or funding from governments. Reflecting this, we will consider the extent to which the requirements that Network Rail is expected to deliver might be adjusted, as well as the basis for us to reopen our determination should a cost shock occur at a local or national level. (Any such reopening would be done through an ‘interim review’, which might apply to either England & Wales or Scotland, or both).
Out/under-performance at a route-level
5.23 The move towards route-level regulation has further implications for how Network Rail (and its routes) manage out/under-performance against the expenditure baselines we set it.
5.24 Given the limited funding available, it is important that routes have strong incentives to outperform their regulatory settlements and to grow their income (e.g. by enabling more services to run on their route). Transparency over this financial performance is important so that each route team is recognised for any additional income it generates.
5.25 Network Rail already produces route-level financial statements, which recognise income. To get the most out of a greater focus on routes, we will need to work with Network Rail to improve the accountability of routes in preparing these statements. 5.26 Each route will also need some protection from the risk of having to cover significant unexpected costs relative to the funding available to it (i.e. if its spending increases, income falls or a serious event occurs – like the storm damage at Dawlish in 2014). Therefore, Network Rail will need flexibility to reallocate money across the routes to ensure that appropriate decisions are taken. It will also need to have a process in place to ensure that moving resources between routes does not jeopardise the position with the borrowing limits for Network Rail in total.
5.27 It will be important to ensure that the impacts of moving resources between routes to deal with any financial risks are transparent, so that each route’s performance can be judged fairly. We will work with Network Rail to determine how its route-level regulatory accounts can clearly identify the financial consequences of these decisions and the reasons for making them, including the trade-offs it considered.
5.28 We will consult in late 2016 on how the routes can deal with financial risk in our financial framework consultation, including the role of Network Rail centre in relation to the routes and the implications of an overspend for any devolved regional funders in England & Wales. In the meantime, we welcome views on the proposal in the Shaw report for a ‘central route reserve’ mechanism to exist alongside a risk buffer within each route.
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5 Paragraph 2.70-2.73 of the Shaw report.
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**Capital expenditure-related change control**
5.29 Network Rail’s capital expenditure requirements for enhancements in CP6 will be significant, including for projects not completed during CP5. In chapter 4, we set out some issues relating to the treatment of enhancements in CP6. These will be explored in more detail in our enhancements working paper. One of the options is for a government funder to choose to manage the enhancements that they fund in a continuous process that is not linked to the conventional periodic review cycle (e.g. over five years).
5.30 To make these new arrangements work, there will be a need to reflect the impact of the changing enhancements profile on Network Rail. We are considering how we might include provisions and agree processes to do this (and likewise for any changes associated with the ‘Digital Railway’, given the uncertainty with this), so that the targets and borrowing assumptions set for Network Rail realistically reflect what is achievable.
**Incentives framework**
5.31 The shift to route-level regulation is likely to have implications for the contractual incentives framework we set. For example, it could affect the relative benefits of different options for the structure of charges (e.g. whether charges should better reflect costs faced by each route).
5.32 Also, the Schedule 8 contractual performance regime may need to change. This is because Schedule 8 benchmarks are currently based on train operator performance (PPM) trajectories, which are not route-specific, whereas we envisage that routes will be held to account on the basis of their own performance targets. The full implications of this will need to be worked through, including the choice of metrics, and we will discuss this with the industry, including the National Task Force.
5.33 We will work with stakeholders to identify and carefully consider the implications of route-level regulation for the incentive and contractual arrangements. We welcome thoughts on what the implications might be and will consult on proposals for the incentive framework later in 2016.
Monitoring and encouraging good performance
5.34 The shift to regulating at route and system operator level would provide the opportunity for a major change in how Network Rail is monitored.
5.35 We would expect route performance in CP6 to be measured against the funding and output levels set in each route’s settlement. To support effective performance alongside greater train operator and stakeholder scrutiny, we would set incentives on routes as part of PR18. This could involve:
- annual, public reporting of route-level performance, including publication of scorecards showing relative performance, to make the best use of reputational incentives and support train operators and stakeholders in holding Network Rail to account;
- a clearer link between route-level performance and the remuneration of senior staff within each route; and
- modifying our escalation process in which we highlight areas of concern in Network Rail’s performance (the ‘regulatory escalator’), to apply this more at a route-level. This would, for example, include producing our six-monthly ‘Monitor’ publication on a route basis, setting out our view on how we think Network Rail and its routes are doing, and engaging directly with a route when its performance falls below acceptable levels. As now, we would also expect Network Rail centre to play an important role in holding its routes to account, and if we considered it was not doing this effectively, we would raise this with it.
5.36 We broadly envisage similar arrangements for the system operator, which we will discuss in a forthcoming working paper.
5.37 To support the clearer accountabilities we want to encourage at route-level, we propose that the financial and performance information for each route (produced for regulatory reporting purposes) should be prepared and signed off by Network Rail’s routes, rather than by Network Rail centre (the centre would still sign off any required statutory statements).
Financial monitoring
5.38 In PR13, we developed a monitoring framework to take account of where Network Rail defers or brings forward work, so that we could better understand its financial performance. This framework feeds into a financial performance measure, which also helps us to understand the financial impact of Network Rail not delivering its outputs. Both we and Network Rail consider this to have been a significant improvement over the approach used in CP4. We will review this approach in PR18, reflecting the need to improve our monitoring of Network Rail at a route-level, including its performance against our determination and its route scorecards. We will consider the recommendations of the Shaw Review in this respect, and decide on our approach to implementing them.
Network licence enforcement and safety management system
5.39 Network Rail – with its routes and functions – remains a single company, and as such it will retain a single safety management system and be accountable to us through a single network licence.
5.40 Consistent with current practice, if we were to take licence enforcement action in CP6 for any alleged failing, we would clearly identify the part of the business responsible, to reinforce the reputational incentive to perform well.
Overview of difference between CP5 and our proposed potential approach for CP6
5.41 Table 5.1 gives an overview of what our potential approach to PR18 and CP6 could look like compared to PR13 and CP5.
| Table 5.1: Difference between PR13/CP5 and proposed approach for PR18/CP6 | |---------------------------------------------------------------| | **Element** | **PR13/CP5** | **Proposed for PR18/CP6** | |---------------------------------------------------------------| | **Route-level regulation** | | | | Business plans informed by route-level customer engagement | Partial¹ | More substantial | | Separate outputs for each route | No | Yes | | Specific funding and RAB allocations | Indicative only² | Yes | | Incentive framework applying at route level | Partial³ | Yes | | Transparency over resource transfers between routes | Partial | Full | | Charges reflect cost at route-level | Partial⁴ | Consider scope for more | | Monitoring at route-level | Partial⁵ | Yes | | Element | PR13/CP5 | Proposed for PR18/CP6 | |------------------------------------------------------------------------|----------|-----------------------| | Regulation of system operator | | | | Separate business plan (informed by customer engagement) | No | Yes | | Separate outputs | No | Yes | | Separate funding and RAB | No | Yes | | Management incentives linked to system operator performance | Partial | Yes | | Transparency and monitoring | Partial | Yes |
1. There was some engagement on route plans in PR13.
2. Scotland has a separate RAB, borrowing limit and is responsible for its share of Network Rail’s debt. Regulatory financial statements (showing the company’s performance, such as on maintenance and renewals spend) are produced at route-level.
3. Route-level efficiency benefit sharing (which encourages train operators to work with Network Rail to bring costs down) and the volume incentive (which encourages Network Rail, at a route-level, to accommodate unexpected demand, beyond what was forecast at the time of the most recent periodic review).
4. The fixed track access charge is built up on a route-basis.
5. In CP5, we have held route-level meetings with all routes to discuss their performance.
Views sought and questions
We welcome views on how our high-level approach could be implemented and on the potential framework set out in chapter 5. As part of this, we invite thoughts on what it is practicable to achieve in PR18 and in CP6, and what might be more realistic to achieve in the subsequent periodic review.
We would also welcome any further suggestions and ideas on how we might improve how we regulate Network Rail.
You may wish to read and comment separately on the working papers that we will publish following this consultation document. 6. Process and engagement
Introduction
6.1 Although led by us, PR18 is a multilateral process involving a wide set of stakeholders, with key roles for Network Rail, DfT and Transport Scotland. Our proposal for greater focus on devolved routes and the system operator, as well as moves to increase political devolution, means the review is likely to be of greater interest to stakeholders such as the Welsh Government and regional transport authorities. We need to ensure all parties that wish to engage in the review can do so effectively.
6.2 This chapter:
- gives an overview of the key phases of the review;
- sets out our approach to engagement and highlights the stages of the review where Network Rail and governments lead the process; and
- seeks views on how the industry wants to be involved in implementing PR18 and on issues relating to Network Rail’s right to object to the determination.
Main phases of PR18
6.3 We will need to work through a range of issues to implement our proposed approach. In particular, the move to route-level regulation means that the timetable for PR18 is likely to be different from the one for PR13. Our draft timetable will be revised and updated, particularly after further discussion with stakeholders. Notwithstanding this, we broadly expect there to be three main phases of work, as follows.
May 2016 to late spring 2017: Setting the framework
6.4 In this period, we will work with stakeholders to develop the framework for PR18, including the implications of our proposed approach for both how governments set out their HLOS requirements for CP6 and for how Network Rail (including its routes and system operator function) should produce its strategic business plans (SBPs) for CP6. In September 2016, the industry will publish its advice to governments on the choices available for CP6, to inform decisions in the HLOSs and SoFAs.
6.5 We currently expect that in February 2017 we will issue our legal notices requiring the Secretary of State and Scottish Ministers to provide their HLOSs and SoFAs in May/early June 2017.
Late spring 2017 to October 2018: Detailed development, review and our determination
6.6 Following the publication by the governments of their HLOSs and SoFAs, Network Rail will complete its strategic business plan (informed by customer engagement) and we will refine the detail of our policy framework and how it will work in practice. We recognise that there may also need to be a broader industry view on what is required to deliver the HLOSs (i.e. an industry plan), which we assume would be published alongside the SBPs. We will then review the SBPs and seek stakeholders’ views. In October 2018, we will issue our final determination of what Network Rail must deliver in CP6 and the funding it will receive for this. November 2018 to March 2019: Implementation
6.7 We will then move to implement our determination. Network Rail will finalise its price lists (which set out specific rates for access charges) and produce its delivery plan for CP6, consulting appropriately. We will finalise proposed changes to Network Rail’s access contracts with train operators and its network licence and issue the legal notices to implement these. Network Rail will then have the opportunity to decide whether to accept or reject the determination. If it accepts, PR18 will be implemented and CP6 will begin on 1 April 2019.
6.8 The current draft high-level milestones for PR18 are set out in the executive summary of this document. Our website sets out a ‘live’ version of our public timetable and a more detailed explanation of the key milestones. We welcome views on the timetable and any implications for it arising from our proposed approach to PR18.
6.9 We will alert stakeholders to any major changes to the timetable.
Our proposed approach to engagement
Consultation and collaborative engagement
6.10 Following feedback after PR13, we will make our documents more accessible (though inevitably there will be some formality, particularly as we approach our final determination). We will aim for these to be:
- in plain English;
- as short as practicable, with any detail set out in annexes for those that wish to read it; and
- supported, where appropriate, by impact assessments to explain the likely effects of proposals and decisions.
6.11 We will include explanations of how we have taken into account stakeholders’ views when we conclude on policy issues.
6.12 To support a more collaborative approach to developing our decisions in the review, we plan to make more use of ‘working papers’ on particular topics. These will set out our ideas and thinking, to enable discussion and further development with stakeholders. We encourage stakeholders to discuss these working papers with us and to provide less formal written responses than those that might be provided in more formal consultations.
6.13 Building on PR13, we will use workshops, working groups and meetings as appropriate to test ideas and discuss proposals, including those in working papers.
RDG’s working groups
6.14 RDG has proposed to host a number of working groups, which would be jointly run with us, to support policy development and discussion on PR18 issues. While recognising that RDG does not represent all stakeholders, we think that these groups could be a useful way for us to develop our approach, together with more formal consultation.
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6 In 2014, we commissioned an independent evaluation of PR13. This set out how we could improve for PR18, including in respect of the form, volume and number of our documents and more generally how we could better interact with those interested in the review. 6.15 We think it is important that these groups are open to non-RDG parties (where practicalities allow) and that they are transparent (e.g. with notes of the key points from discussions published, albeit unattributed to support open and frank discussions). We will work with RDG on the scope of these groups and the forward agendas, so that these align sensibly with our plan for developing policy.
6.16 The existence of these groups would not replace the need for bilateral and multilateral meetings and workshops, and we will continue to meet stakeholders on this basis. This will be particularly relevant for those organisations that do not attend the RDG hosted working groups. We may also need to establish specific working groups or ad hoc workshops on particular areas as the review progresses.
Optimum points for engagement
6.17 As the review progresses, the scope for stakeholders to influence decisions will change as the framework for CP6 becomes clearer. Engagement later in the review will focus more on detailed issues. We recognise that stakeholders’ interests over the course of the review will be different and will depend on the level of detail and potential impact of the changes to their organisation. We will aim to be clear on the scope of each consultation and to indicate which stakeholder groups are most likely to be interested in them.
Staying in touch – our projects, updates and contact lists
6.18 Our main project areas for PR18 are described on our website, along with the names of those leading the work at ORR.
6.19 We plan to provide regular web updates on PR18, and will notify stakeholders when these are posted. To support this, and ensure stakeholders receive the consultations they are interested in, we have set up a web-based system for stakeholders to opt-in and out of our PR18 contact lists, including provision for them to select the areas they are interested in. Please see this link to register.
Taking account of the interests of consumers
6.20 It is important that PR18 adequately reflects the interests of passengers and freight customers (i.e. consumers). We see our role in supporting this through ensuring:
- there is an effective process for customer and stakeholder engagement in the development of Network Rail’s plans for CP6, so that these take account of consumer preferences (see below);
- the outputs framework is framed around the interests of consumers (such as through a more passenger-focused measure of performance);
- that Network Rail’s delivery plans for enhancement projects are developed with consumers’ input, reflecting the recommendation of the Bowe review; and
- that we communicate our decisions in a way that is meaningful for consumers.
Other lead parties
Department for Transport, Transport Scotland and other national and regional authorities
6.21 The role of the Scottish Government and the Secretary of State in setting their HLOSs means that they have a major influence on what Network Rail will deliver in CP6. We must carry out the review in a way that we consider is most likely to ensure its implementation will make the best and most practicable contribution to achieving their HLOSs.
6.22 In previous reviews, wider stakeholders have been particularly interested in the enhancement schemes arising from HLOSs. How enhancements are specified and funded is something that is currently being reviewed, which could lead to at least one HLOS not including any new enhancement schemes.
6.23 Subject to this caveat, those wishing to influence government decisions on what they want delivered in CP6 (as determined through PR18) need to engage with DfT and Transport Scotland in good time ahead of the HLOSs (expected in May/June 2017). In respect of Scotland, following the publication of Network Rail’s Scotland Route Study in July 2016 and the subsequent industry advice to the Scottish Government on the choices available for the railway, Transport Scotland plans to consult on all key outputs for CP6 for which the Scottish Ministers are responsible for specifying. This will include those relating to the capacity and capability of the network in Scotland. The results from this will help to inform the Scottish Ministers’ HLOS.
6.24 We recognise that the Welsh Government and regional bodies such as Transport for London, Transport for the North and Midlands Connect have an important role in informing what is delivered in CP6, whether or not their role is recognised in the current statutory process for the review. Our review process will need to take account of their views and we will engage with them to ensure this.
Network Rail
Customer engagement in developing business plans
6.25 As noted elsewhere in this document, Network Rail’s devolution to routes and the creation of a specific system operator organisation within the company provide the opportunity for closer working with train operators and stakeholders. In particular, it will support a more customer-focused engagement process to inform what routes and the system operator deliver in CP6 (within the funding constraints and taking account of the views of those bodies that provide funding for the railway).
6.26 The goal for this engagement is that the plans of each route and the system operator reflect the priorities and views of their passengers and freight customers in respect of what should be delivered (as well as how, e.g. the timing and length of engineering possessions carried out by a route). In other regulated sectors, like water, processes have been established that also provide for direct engagement with end users. But these processes have taken a long time to develop.
6.27 With stakeholders, we need to decide what depth of engagement is achievable for this review, in terms of establishing processes for routes and the system operator to take account of what passengers and freight customers want. We are conscious that developing more direct forms of engagement with end users may be unrealistic for PR18. However, there should be opportunities for engagement with those well-placed to represent the interests of end users.
6.28 Train operators will clearly be key to this (along with any relevant regional funders). Indeed, the involvement of franchised operators should lead to greater alignment between Network Rail’s outputs and franchise commitments. But there may be circumstances when it is particularly important to obtain (or make use of existing) evidence directly from passengers. For example, franchised passenger operators whose franchises are due to expire shortly may have a different balance of priorities to passengers. This is one of the issues that we will need to work through with stakeholders. We also see a role for passenger representative bodies both at a national and more local level.
6.29 In addition to this engagement process, after Network Rail has submitted its strategic business plans to us, we envisage that there would be an opportunity for a stakeholder session with each route and the system operator, at which stakeholders can question and challenge the relevant Network Rail team.
Network Rail’s role in detailed policy development of charges
6.30 As infrastructure manager, Network Rail is responsible for calculating the access charges that train operators will pay. In PR13, Network Rail took the lead in developing detailed policy relating to access charges, within the overall framework that we set, and subject to our final agreement. We expect a similar process to take place in this review, which may involve specific working groups on charges (if not the RDG working groups).
Implementation of PR18
Engagement in the implementation process
6.31 The statutory framework gives us overall responsibility for implementing periodic reviews. There are typically tight time constraints for developing drafting to implement our determination, which can limit the scope for engagement with Network Rail and train operators. In PR13, although Network Rail played a bigger and helpful role in reviewing our drafting compared to PR08, there was little appetite from train operators to be involved.
6.32 Given that train operators and Network Rail are directly affected by the provisions we include in their contracts to implement our determination, we would like to understand if there is more appetite for them to be more involved in this process in PR18. For example, if policy decisions are able to be finalised sufficiently early in the process, there may be the opportunity for an industry working group to review and comment on proposed drafting, and potentially lead on developing drafting on certain provisions agreed with us.
6.33 We would be interested in stakeholder views on this, including what the best means of achieving greater involvement would be.
Network Rail’s right to object to our determination
6.34 Once we have commenced the formal implementation process, Network Rail will have the right to object to our determination. If it does so, this could lead to a reference to the Competition & Markets Authority (CMA), which would have to decide whether the determination (or those parts of it that relate to the referral to the CMA), if implemented, would operate against the public interest.
6.35 In PR13, Network Rail accepted our determination, but in doing so it included certain caveats – for example, in relation to its ability to deliver certain outputs that we had set. While legally these caveats had no status, they arguably raised a perception that Network Rail had not in fact fully accepted the determination. 6.36 It is crucial that Network Rail has the right to object to our determination and is able to exercise this right. This is important to ensure that: (1) if Network Rail accepts the determination, it is clearly accountable for delivering what we have specified; and (2) the checks and balances on us to deliver a fair determination work effectively. It would not be desirable or appropriate for Network Rail to accept our PR18 determination in a way that implies that it does not consider it could achieve it, as this risks undermining the periodic review process.
6.37 Within the existing legal framework setting out Network Rail’s right to object, we plan to review the process around Network Rail’s right to object, including:
- the role of routes and the system operator in any decision to accept or reject the determination (this is important to ensure their accountability for delivery of their settlements within the determination);
- how clarity of accountability can be improved if Network Rail chooses to accept the determination;
- the implications of reclassification for this process; and
- the contingency arrangements in the event that there is an objection (or any other delay).
6.38 We welcome any thoughts on this area.
Views sought and questions
We would be grateful for comments on the proposed phases of the review, including any views on the draft timetable (available on line) and our proposed approach to engagement. We also invite high-level views on the process for customer engagement by Network Rail’s routes and the system operator to inform their business plans, in terms of what is achievable for this review.
We would also welcome any views on how Network Rail and train operators would like to engage and be involved in the implementation process for PR18 and any thoughts on the process relating to Network Rail’s right to object to our determination.
Responding to this consultation
6.39 This consultation closes on 10 August 2016. Please submit your responses, in electronic form, to our PR18 inbox [email protected]. You may find it useful to use this pro forma.
6.40 We plan to publish all responses to this consultation on our website. Accordingly, when sending documents to us, we would prefer that you send your correspondence to us in Microsoft Word format or Open Document Format. This allows us to apply web standards to content on our website. If you do email us a PDF document, where possible please:
- create it from an electronic word processed file rather than sending us a scanned copy of your response; and 6.41 Should you wish any information that you provide, including personal data, to be treated as confidential, please be aware that this may be subject to publication, or release to other parties or to disclosure, in accordance with the access to information regimes. These regimes are primarily the Freedom of Information Act 2000 (FOIA), the Data Protection Act 1998 (DPA) and the Environmental Information Regulations 2004). Under the FOIA, there is a statutory code of practice with which public authorities must comply and which deals, amongst other things, with obligations of confidence.
6.42 In view of this, if you are seeking confidentiality for information you are providing, please explain why. If we receive a request for disclosure of the information, we will take full account of your explanation, but we cannot give an assurance that confidentiality can be maintained in all circumstances. An automatic confidentiality disclaimer generated by your IT system will not, of itself, be regarded as binding on ORR.
6.43 If you are seeking to make a response in confidence, we would also be grateful if you would annex any confidential information, or provide a non-confidential summary, so that we can publish the non-confidential aspects of your response.
## Annex: References
| Organisation | Date | Title | Link | |-------------------------------------|---------------|----------------------------------------------------------------------|------| | Competition & Markets Authority | March 2016 | Competition in passenger rail services in Great Britain: A policy document | Link | | Department for Transport | November 2015 | Report of the Bowe Review into the planning of Network Rail's Enhancements Programme 2014-2019 | Link | | Department for Transport | March 2016 | The Shaw Report: The future shape and financing of Network Rail – the recommendations | Link | | Department for Transport | March 2016 | Memorandum of understanding between the Department for Transport and Network Rail on rail enhancements | Link | | Network Rail | November 2015 | Report from Sir Peter Hendy to the Secretary of State for Transport on the replanning of Network Rail's Investment Programme | Link | | Network Rail | December 2015 | Network Rail Response to the Shaw Scope Report | Link | | Office of Rail and Road | July 2013 | Opportunities and challenges for the railway: ORR's long-term regulatory statement | Link | | Office of Rail and Road | August 2015 | System operation – a consultation on making better use of the railway network | Link | | Office of Rail and Road | December 2015 | Network charges - a consultation on how charges can improve efficiency | Link | | Office of Rail and Road | March 2016 | Office of Rail and Road super-complaint response report: Which? Super-complaint - compensation arrangements in the market for passenger rail services | Link | | Office of Rail and Road | April 2016 | An update on ORR’s review of charges | Link |
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595de0fa2811626f88f12f35dc7626d04ec0d129 | Social enterprise, mutual, cooperative and collective ownership models
A practical guide
# Contents
| Section | Title | Page | |---------|-------|------| | Introduction | | 4 | | Section 1: Making the change | | 5 | | 1.1 | What is a social enterprise? | 5 | | 1.2 | Defining the business case | 5 | | 1.3 | Accessing resources | 7 | | 1.4 | Procurement issues | 8 | | Section 2: Establishing the new venture | | 9 | | 2.1 | Establishing a business | 9 | | 2.2 | Forms | 9 | | 2.3 | Useful case studies | 10 | | Section 3: Employee-led organisations – types of models | | 11 | | 3.1 | Social enterprise | 11 | | 3.2 | Community Interest Companies (CIC) | 11 | | 3.3 | Companies limited by guarantee | 12 | | 3.4 | Mutuels or Industrial and Provident Societies (IPS) | 13 | | 3.5 | Workers’ cooperatives | 14 | | 3.6 | Charitable status | 14 | | Section 4: Transfer of Undertakings (Protection of Employment) TUPE | | 16 | | 4.1 | TUPE – a brief overview | 16 | | 4.2 | Situations where TUPE applies | 17 | | 4.3 | Who and what transfers? | 17 | | 4.4 | Employers’ liability | 18 | | 4.5 | Information and consultation obligations | 18 | | 4.6 | Post-transfer issues | 19 | | 4.7 | ‘Second generation’ transfers | 20 | | 4.8 | Pensions | 20 | Disclaimer
The information in this guide has been prepared by Local Government Group (LG Group) in association with Goldsmith HR Services. It represents the views of the LG Group and should not be treated as a complete and authoritative statement of the law. This guide is for general use and cannot cover every circumstance, nor does it cover specific protected rights that apply to a very limited number of employees. Readers may wish, or will need, to take their own legal advice on the interpretation of any particular piece of legislation.
While every care has been taken to ensure the accuracy of the information in this guide we cannot guarantee that inaccuracies will not have occurred. No responsibility whatsoever will be assumed by the LG Group for any direct or consequential loss, financial or otherwise, damage or inconvenience, or any other obligation or liability incurred by employers relying on information in this guide.
The guide was up-to-date at the time of publication in February 2011 and reflects the current legislation. Changes to legislation can be made by the Government in the future. This publication is intended to provide helpful and practical guidance for councils when considering how in-house services can be delivered through various different models.
Many social enterprises, staff mutuals, cooperatives and other employee-led models are expected as a result of the decentralisation agenda and the Localism Bill (see Appendix A). This guide concentrates on the main employment issues for councils and offers guidance in responding to employee requests to deliver local services. It includes the top ten things to consider when responding to an employee request to run a social enterprise, along with some sample letters which councils may want to use, some useful sources of information and some points to take into account regarding TUPE, pensions and procurement issues. Section 1: Making the change
1.1 What is a social enterprise?
The Government’s definition of a social enterprise is: “a business or service with primarily social objectives whose surpluses are principally reinvested for that purpose in the community, rather than being driven by the need to maximise profit for shareholders and owners”.¹
This guide focuses on the set-up of social enterprises and explores some of the associated benefits and challenges. However, it should be noted that change can take many forms and should not be solely limited to social enterprise. There are many different models of delivery which councils may want to consider and further information on managing change is available by clicking onto the following link: Change toolkit: www.idea.gov.uk/idk/core/page.do?pageId=5817020
1.2 Defining the business case
Key to any successful change or social enterprise is the development of a robust business case, including:
- how stakeholders, including communities and Trade Unions, are engaged
- realistic financial modelling
- partnership options.
The Government has committed to “giving public sector workers a new right to form employee-owned cooperatives and bid to take over the services they deliver”.² A model for this approach exists within the NHS and is described below.
1.2.1 The NHS Right to Request model
The Right to Request enables frontline NHS staff employed by Primary Care Trusts (PCTs) to set up a social enterprise to deliver healthcare services to NHS patients.
The scheme entitles clinical staff to request to deliver their services through a social enterprise. Staff have the right to put forward a social enterprise proposal to their PCT board, and to have this proposal considered. PCTs are obliged to consider these applications and, if a proposal is approved, to support the development of that social enterprise. This includes awarding them a contract for the provision of services for an initial period of up to five years. Innovation and the improvement of health outcomes must be central to all Right to Request applications.
Any member or group of frontline PCT staff can exercise their Right to Request. Once proposals are approved and the new provider organisation is set up, staff transfer
¹ http://tinyurl.com/ydmhnqm ² Building the Big Society, May 2010 http://tinyurl.com/3pwhx54 to this organisation under the Transfer of Undertakings (Protection of Employment) Regulations (TUPE). This means that the existing terms and conditions of employment, including access to the NHS Pension scheme, are legally protected at the point of transfer.
The process, briefly, is as follows:
1. Staff identify local needs, patient priorities and community requirement.
2. Staff talk about ideas with colleagues and gauge interest.
3. An expression of interest is put forward to the PCT board, which includes: • a summary • the background • aims and objectives, including vision, mission and strategic objectives • range of services • stakeholder engagement • partnership/collaboration • costs • risks • governance • timescales.
At this expression of interest stage, it is not expected that full details are provided; it is more that the issues have been understood. The expression of interest is submitted to the PCT board, and subject to the Strategic Health Authority (SHA) assurance process.
4. Should the expression of interest be approved, a detailed five year integrated business case is developed and submitted, again subject to the SHA assurance process. This can take around six months and longer for complex services.
5. Staff are engaged and business skills developed. Any skills gaps would have been explored in both the expression of interest and business case stage.
6. Again, subject to the SHA assurance process, approval for the business case is received from the PCT board and SHA.
7. The social enterprise is established in ‘shadow form’, with staff still employed by the PCT. This runs for six months while any necessary adjustments are made.
8. Staff are transferred to the independent body under TUPE.
1.2.2 Approval processes
As shown in the NHS model above, there is a defined assurance process in place. The draft Localism Bill states that councils may only reject the expression of interest on grounds specified by the Secretary of State by regulations. Pending further guidance, councils would be well advised to plan for how requests to form Social Enterprises are responded to. Suggested criteria could include:
1. Costs – are they understood by the applicant(s), and are there suitable financial projections?
2. Community benefit – who is the service being provided to, and does the proposal meet minimum statutory or custom and practice service levels?
3. Growth potential – has the applicant understood the nature of the ‘business’ they are proposing and to what extent are they in competition with existing businesses or similar new start-up social enterprises?
4. Staff cohesion – is there a clear mandate from all members of the applicant staff group?
5. Support – what support from the council is being asked for? What support can the council offer independently of the request? 1.3 Accessing resources
“The Government has committed to setting up a Big Society Bank to give social enterprises, charities and voluntary organisations access to greater resources. It will be set up using money from dormant bank accounts (those untouched for 15 years or more and available for spending in England) and will encourage investment in social change.”
It is anticipated that this resource will be available from April 2011, although, at the time of writing the application process is not clear.
1.3.1 Sources of funding
A number of national and regional organisations and agencies currently provide funding and support to help social enterprises.
Funding may be available through the following sources:
Loan finance may be more accessible to social enterprises from community development organisations and micro-finance institutions, including Community Development Finance Institutions (CDFIs), rather than from conventional sources such as banks. CDFIs specialise in providing finance to new and growing businesses, including social enterprises in disadvantaged areas. Most CDFIs are members of the Community Development Finance Association (CDFA), which can provide further information.
Tel: 020 7430 0222 Website: www.cdfa.org.uk
Bridges Ventures manages the Social Entrepreneurs Fund, which invests in social enterprises. Further information on their application criteria is available on their website.
Tel: 020 7262 5566 Website: www.bridgesventures.com/social-entrepreneurs-fund
The ‘Real Help for Communities’ Modernisation Fund is a package of support aimed at helping social enterprises in England to survive the current economic downturn. Funding ranges from bursaries of £1,000, grants up to £10,000 and interest-free loans of between £30,000 and £500,000. Further information on eligibility and the application process is available on the Modernisation Fund website.
Website: www.modernisationfund.org.uk
The Local Investment Fund provides loan finance of between £25,000 and £250,000 to social enterprises in England. They also manage a number of regional community loan funds providing loan finance of between £15,000 and £100,000.
Tel: 020 7680 1028 Website: www.lif.org.uk
The Social Enterprise Loan Fund provides loans of up to £250,000, to cover working capital and the purchase of fixed assets, land or property, to social enterprises in England. Further information and regional contacts, as well as a list of sources of help for social enterprises, are available on their website.
Tel: 020 7680 1028 Website: www.tself.org.uk
Futurebuilders provides grants, loans and business support to social enterprises in England. They have a number of funds available, including funds to help social enterprises tender for public sector contracts. There is further information on what is available on their website.
Website: www.futurebuilders-england.org.uk
3 www.cabinetoffice.gov.uk/content/big-society-overview The Adventure Capital Fund provides finance and support packages to businesses in England that work to improve their local communities. See the website for further information on funding criteria and availability. Tel: 020 7488 3455 Website: www.adventurecapitalfund.org.uk
Ulster Community Investment Trust (UCIT) provides loans and business support to community organisations and social enterprises in Northern Ireland. Guidelines for applicants, as well as an application form, are available to download from their website. Tel: 028 9031 5003 Website: www.ucitltd.com
London Rebuilding Society manages four loan funds specifically for social enterprises in the Greater London area. The society also organises regular events and courses as well as providing advice and support. Tel: 020 7682 1666 Website: www.londonrebuilding.com
Councils should advise employees who are considering setting up a social enterprise to discuss their needs with resource support organisations to decide the most appropriate route. These discussions will uncover what combinations of support are available, and what liabilities those place on the new Social Enterprise.
1.4 Procurement issues
At the time of writing, it is not clear what impact Government policy will have on procurement rules as they currently exist (see Appendix 1: Localism Bill), and the subsequent impact on social enterprises. The European Union (EU) procurement thresholds currently stand at just over £100,000, requiring a tender process. However, it is worth remembering that:
“Even when a tender process is not subject to the Directives, (for example because the estimated value of a contract falls below the relevant threshold), EU Treaty-based principles of non-discrimination, equal treatment, transparency, mutual recognition and proportionality apply. Some degree of advertising, which is appropriate to the scale of the contract, is likely to be necessary to demonstrate transparency. This is in line with the UK objective of achieving value for money in all public procurement – not just those covered by the EU Procurement Directives.”
At the time of writing, there is no clear guidance or case law to define which contracts have to be advertised and EU Directives may still apply, even to services exempt from Notices in the Official Journal of the European Union (OJEU).
Councils would be well advised to obtain current and constantly updated information on the procurement position and to make this an absolute priority, in particular developments through the Localism Bill. Future legislation will help to clarify these issues.
Key issues
Many organisations exist to offer support and advice, both for a fee and free, and councils should ensure that social enterprise requestors are getting the best-quality advice and best value for money.
Given the emerging nature of social enterprise delivery of council services, current and accurate advice on procurement and funding matters is essential.
______________________________________________________________________
4 Introduction to the EU procurement rules: OGC Guidance March 2008 Section 2: Establishing the new venture
2.1 Establishing a business
Establishing the right kind of body appropriate for a social enterprise will vary according to local circumstances. There is no one ‘right’ way to create the business, as shown in section 1 of this guide. Employees would be well advised to consult:
- an independent company formation agent and/or
- a suitably experienced and qualified accountant and/or
- a specialist legal firm.
Appendix B of this guide lists information and support services which employees could access.
2.2 Forms
The forms to create a company and associated guidance are available online and from the following sources:
Companies House www.companieshouse.gov.uk
Details on forming a Community Interest Company www.cicregulator.gov.uk
Details on forming Industrial and Provident Societies www.fsa.gov.uk/Pages/Doing/small_firms/MSR/index.shtml
Mutual application form www.fsa.gov.uk/pubs/forms/MS_appform_notes.pdf
Details on registering a charity www.charity-registration.com/form_a_charity.html
However, it should be noted that there is no requirement for staff to make all, or any, of their side of the preparations before expressing an interest in the work. They can incorporate themselves after becoming the preferred tenderer if the authority accepts tenders from non-corporate bodies who are willing, if successful, to incorporate themselves within whatever timescale the contract lays down. This is now becoming increasingly common practice, as it enables non-corporate consortia to submit tenders.
2.3 Useful case studies
The Office for Public Management (OPM) have conducted research into shared ownership in practice and the findings from case studies of employee and community ownership of public services can be found by clicking the following link: OPM case studies: www.opm.co.uk/resources/33583
Key issues
The social enterprise agenda offers opportunity to those council employees who are natural leaders and show entrepreneurial skills to come to the fore. However, there are important considerations:
• Ideally, the set-up of a social enterprise venture should be driven by all staff, although it is inevitable that leaders will emerge. Councils should take care to ensure that the whole range of opinions and ideas are considered.
• Councils should satisfy themselves that sufficient motivation and impetus exists to see through the complexities of setting up the venture. Half-hearted applications would be unlikely to reach fulfilment or be successful long-term in a business context. Section 3: Employee-led organisations – types of models
In the context of employee social enterprise, the types of and descriptions of employee-led organisations can be complex and overlapping. This section describes some current models, highlighting the key elements and differences between each. When creating an employee-led solution to delivering services, it is important to bear in mind that there is no one ‘right’ way to go about it, and a mutual decision would need to be negotiated between employees and employers that offers benefit to both parties. Both parties are strongly advised to take detailed legal advice on the formation of a constitution of the new venture.
Social enterprise for example, has been in place for some years in the leisure services sector and there are currently around 130 ventures nationwide with many different models. They are, for instance, constituted as charities, companies limited by guarantee, and workers’ cooperatives.
The types of bodies available:
3.1 Social enterprise
Social enterprise should best be viewed as an overall term to describe a venture, rather than a delivery vehicle in and of itself.
The Government’s definition of a social enterprise is: “a business or service with primarily social objectives whose surpluses are principally reinvested for that purpose in the community, rather than being driven by the need to maximise profit for shareholders and owners”.
The key characteristics of a social enterprise are:
1. They trade, ie sell, goods and/or services and any profit or ‘surplus’ made as a result of their trading activities is either ploughed back into the business or distributed to the community they serve.
2. They have a clear social purpose. This may include job creation, or the provision of local facilities eg a nursery, community shop, or social care for the elderly.
3. They are owned and managed by their employees.
A social enterprise can be a Community Interest Company, a Company Limited by Guarantee, a Company Limited by shares, or an Industrial or Provident Society. Many also take charitable status, such as Housing Associations.
3.2 Community Interest Companies (CICs)
CICs are companies limited by shares or guarantee which have applied for registration and have satisfied the Regulator of Community Interest Companies (CREG) that
5 http://tinyurl.com/ydmhnqm they are in the public or community interest. CICs are those formed under the Companies Act 1985 and are bound to use their assets, income and profits for the benefit of the community they are formed to serve.
The Companies Act 2004 requires every CIC to have an asset lock (see 3.2.2. Asset Lock) and interest and dividend caps.
3.2.1 Forming a CIC Forming a CIC is essentially the same as the formation of any standard company (see section 2.1), with one important distinction – the CIC must prepare a Community Interest Statement and pass a ‘Community Interest Test’ both at formation and throughout the life of the company, which must satisfy CREG.
3.2.2 Asset lock ‘Asset lock’ is a general term used to ensure that the assets of the CIC (including any profits or other surpluses generated by its activities) are used for the benefit of the community.
A transfer of assets must satisfy certain requirements
Where assets transfer from a public sector body to a CIC, certain requirements must be met. This means that the CIC’s assets must either be retained within the CIC to be used for the community purposes for which it was formed, or provision is made so that if they are transferred out of the CIC, the transfer must satisfy one of the following requirements:
• It is made for full consideration (ie at market value), so that the CIC retains the value of the assets transferred. • It is made to another asset-locked body (a CIC or charity, a permitted industrial and provident society or non-UK based equivalent) which is specified in the CIC’s articles of association. • It is made to another asset-locked body with the consent of the Regulator. • It is otherwise made for the benefit of the community.
The benefit to councils of the asset lock is that, should the CIC fail, or be transferred to another organisation, all assets remain for the benefit of the community and cannot be used for other purposes.
3.3 Companies limited by guarantee
Companies limited by guarantee have corporate status and are private limited companies where the liability of the members is limited. They provide a satisfactory basis for most non-profit making activities and are often registered as charities.
A guarantee company does not have a share capital, but has members who are guarantors instead of shareholders. Limitation of liability takes the form of a guarantee from its members to pay a nominal sum in the event of the company being wound up while they are a member, or within one year of their ceasing to be a member.
The amount of money that is guaranteed can be as little as £1 and will be stated within the constitution of the company (the Memorandum & Articles of Association).
3.3.1 Why form a company limited by guarantee?
Guarantee companies are useful for non-profit organisations that require corporate status. This means that its profits are not distributed to its members but are ploughed back into company activities. Of course, this does not mean that the guarantee company cannot make a profit, as indeed it is almost paramount that it can and does so. Where an organisation is likely to enter into contracts it may need the benefit of limited liability to protect its board of trustees and its members, who may be involved on a voluntary basis. The following are examples of these contracts:
- employment contracts
- purchasing land, buildings or property
- contracting with service or product providers
- contracts with fund raisers.
A guarantee company provides a clear legal identity. This provides the ability for the company to own property in its own name and a democratic structure where its participants are required to adhere to the strict laws and regulations governing limited companies generally.
3.3.2 What are the differences between a company that is limited by guarantee and a company that is limited by shares?
A guarantee company does not have shares. The members of the company do not own the company but are the decision makers for the company. This means that the profits of the company cannot be distributed to the members through dividends and that they do not have any claim upon the assets of the company.
The members of the company may appoint directors often called ‘Trustees’, who are given the responsibility for creating and implementing policies for the company. The directors also enjoy limited liability, provided that they have not acted negligently, or fraudulently, and have not allowed the guarantee company to continue trading when it was insolvent (this is known as ‘wrongful trading’).6
3.4 Mutualls or Industrial and Provident Societies
An Industrial and Provident Society (IPS) is an organisation set up to carry out a trade or business for community benefit. It is incorporated, which means that it has gone through the registration process that converts a new or existing business into a corporate body, making it a legal entity in its own right. IPSs are regulated by the Financial Services Authority, which took over from the Registrar of Friendly Societies (both being supervised by the Treasury).
3.4.1 Types of IPS
IPSs fall into two categories. An IPS qualifies for registration if:
- It is a society for carrying on any industry, business or trade; and it is either:
- i. a bona fide cooperative; trading for the mutual benefit of their members
- or
- ii. if its business will be run for the benefit of the community (that is, people other than its own members), and there are special reasons why it should be registered as an industrial and provident society rather than as a company under the Companies Act 1985.
IPSs may in general conduct any legal business except that of investment for profit.
Both types of IPS have a share capital, but it is usually not made up of equity shares like those in a company limited by shares, which appreciate or depreciate in value with the success of the enterprise that issues them. Rather they are par value shares, which can only be redeemed (if at all) at face value. The profits and losses of an IPS are thus the common property of the members. The share
6 http://tinyurl.com/3dqgyqy typically acts as a ‘membership ticket’, and voting is on a one member, one vote basis. The maximum individual shareholding is currently set at £20,000 (although other IPSs may hold more shares than this).
Key features
An IPS has:
• a written set of rules • a legal identity • the ability to own property • the ability to enter into contracts • additional legal requirements, eg company law • limited liability (ie the liability on management committee members is usually limited to a nominal amount) • a profit-making ability, which is put back into the organisation.
It is important to note that limited liability does not protect individuals that act negligently, improperly, fail to meet obligations under company law or trades without sufficient assets to cover debts, and so forth.
Common examples: community businesses
Consumer, agricultural and housing cooperatives, working men’s clubs, Women’s Institute, markets, allotment societies, mutual investment companies, friendly societies and housing associations usually incorporate as IPSs, as do some social enterprises. This process is facilitated by the existence of ‘model rules’ developed by various federal bodies, which reduce the legal costs, as bespoke model rules do not have to be created. Credit unions and building societies, which sprang from the same roots, are now governed by specific legislation.
3.5 Workers’ cooperatives
A workers’ cooperative exists for the mutual benefit of its members and has its own registered objects, which state permitted activities and rules.
Cooperatives are organised on a one member, one vote basis. Members are equal and elect management committees to run the business in accordance with members’ instructions. No member can hold a majority shareholding and shares may not exceed £20,000 each except those held by other cooperatives, or those held by councils if assisting a cooperative which is also a housing society.
Any surpluses have to be dealt with in accordance with their rules and if they are distributed, this must be done in the form of dividends.
3.6 Charitable status
A charitable body must be established for public benefit and all of its purposes must be exclusively charitable. This means that its funds and assets have to be used for charitable purposes, which severely restricts the payment of salaries or dividends, or the award of business contracts to its trustees.
Charitable bodies are exempt from income and corporation taxes on all their income provided these are used for charitable purposes, but not VAT. To qualify for an exemption, any trade has to be conducted in the course of carrying out the primary purpose of the charity; or in the course of work done by the beneficiaries of the charity. If the charitable body has revenue-producing activities it can still preserve its charitable status by hiving off these activities to wholly-owned (non-charitable) subsidiary companies.
Constraints on the use of charitable funds and assets make any earlier transfers, donations or grants to a charity virtually irreversible and bodies which do anything which results in the loss of their charitable status do not just carry on as non-charitable bodies; their charitable property can instead be used only for some new charitable purpose.
There is also considerable competition for charitable funding so a key consideration is that funds can be found to establish the charity.
3.6.1 Charitable purposes An organisation can register as a charity only if it has purposes that are wholly and exclusively charitable and are for the benefit of the public. As part of the registration process, applicants must explain how their organisation’s aims satisfy these legal requirements.
The Charities Act 2006 defines 13 possible purposes for charities in England and Wales. A charity cannot have some purposes that are charitable and others that are not.
Those purposes are:
01. prevention or relief of poverty
02. advancement of education
03. advancement of religion
04. advancement of health or saving of lives
05. advancement of citizenship or community development
06. advancement of the arts, culture, heritage or science
07. advancement of amateur sport
08. advancement of human rights, conflict resolution or the promotion of religious or racial harmony or equality and diversity
09. advancement of environmental protection or improvement
10. relief of those in need, by reason of youth, age, ill-health, disability, financial hardship or other disadvantage
11. advancement of animal welfare
12. promotion of the efficiency of the armed forces of the Crown or of the police, fire and rescue services or ambulance services
13. other purposes currently recognised as charitable and any new charitable purpose which are similar to another charitable purpose.
Charity formation is complex and highly regulated, and should this approach be taken, specialist advice is essential. Aside from the CIC formation discussed in section 3.2, it may be possible to create a venture which is also a charity and therefore qualifies for tax incentives. Again, specialist advice would be recommended at the formation stage.
Key issues As this section illustrates, there are many alternative forms of bodies available to deliver social enterprise ventures. No type of body has all the pros and none of the cons.
Councils should ensure when considering social enterprise requests:
• that employees have considered all options and the proposed body is appropriate to deliver the service needs • that employees have taken robust advice on the best route and researched similar ventures to present fully rounded options.
A summary of legal structures for social enterprises is available via the following link: Business Link: www.businesslink.gov.uk Section 4: Transfer of Undertakings (Protection of Employment) TUPE
4.1 TUPE – a brief overview
Where a social enterprise body is established to deliver local services, the question will arise of whether local authority employees who may currently be delivering those services should transfer to the social enterprise under the Transfer of Undertakings (Protection of Employment) Regulations 2006 (the TUPE Regulations).
The question of whether TUPE applies will depend on whether there has been a ‘relevant transfer’ (see 4.1.1 below) from the authority to the social enterprise. Where there is a ‘relevant transfer’, the expectation is that those employees working in the transferring part of the service will transfer to the social enterprise, with their terms and conditions of employment protected under TUPE.
4.1.1 Relevant transfers
Under the TUPE Regulations a ‘relevant transfer’ occurs when:
• A business, undertaking (or part of one) is transferred from one employer to another as a going concern. This is known as a ‘standard transfer’.
• A client engages a contractor to carry out work on its behalf, or where it re-assigns such a contract – including bringing the work back ‘in-house’. This is known as a ‘service provision change’ transfer.
4.1.2 Standard transfers
The TUPE Regulations state that a standard transfer will occur in the case of a “transfer of an undertaking, business or part of a business situated immediately before the transfer in the United Kingdom to another person where there is a transfer of an economic entity which retains its identity”.
Therefore, to ascertain if there is a relevant transfer, four questions must be answered:
• Was there a transfer ‘to another person’? (‘Person’ in this context does not solely mean an individual; it is as equally applicable to an organisation.)
• Did an ‘economic entity’ transfer? (In this context an ‘economic entity’ can apply to a public sector entity such as a building.)
• Did the economic entity ‘retain its identity’ after the transfer?
• Was that entity ‘situated immediately before the transfer in the United Kingdom’?
If the answer to these questions is yes, then it is a relevant transfer, offering employees protection under the TUPE Regulations.
4.1.3 Service provision change transfers (SPCs)
The TUPE Regulations set out three types of SPCs:
1. Where ‘activities cease to be carried out by a person (‘a client’) on his own behalf and are carried out instead by another person on the client’s behalf (‘a contractor’). This is commonly known as ‘contracting out’ or ‘outsourcing’.
2. Where ‘activities cease to be carried out by a contractor on a client’s behalf (whether or not those activities had previously been carried out by the client on his own behalf) and are carried out instead by another person (‘a subsequent contractor’) on the client’s behalf’. This concerns ‘second generation’ transfers – see section 4.7.
3. Where ‘activities cease to be carried out by a contractor or subsequent contractor on a client’s behalf (whether or not those activities had previously been carried out by the client on his own behalf) and are carried out by the client on his own behalf’. This is commonly known as ‘bringing back in-house’.
In the context of the establishment of a social enterprise, the ‘client’ would often mean the council. Therefore, for example, if a social enterprise took over a council’s library services and operated them on the council’s behalf, it may mean that an SPC transfer occurs and the employees working in library services would transfer to the social enterprise.
4.2 Situations where TUPE applies
A relevant transfer under TUPE has been found to apply to:
- mergers
- sales of businesses by sale of assets
- a change of licensee or franchisee
- contracting out of services
- changing contractors.
However, TUPE does not apply to:
- transfers by share take-over
- transfers of assets only (for example, the sale of equipment alone would not be covered, but the sale of a going concern including equipment would be covered)
- transfers of a contract to provide goods or services where this does not involve the transfer of a business or part of a business
- the supply of goods for the client’s use (for example, supplying food to a client to sell in its staff canteen, rather than a situation where the contractor runs the canteen for the client).
4.3 Who and what transfers?
When a relevant transfer occurs, the new, transferee employer automatically takes over the contract of employment of the employees working in the undertaking that transfers, along with the rights and liabilities in connection with the contract. Continuity of employment is protected on the transfer.
In a social enterprise situation, it will often be the case that the undertaking which transfers to the social enterprise will be a relatively small part of the council’s functions. Therefore the parties will need to establish which of the council’s employees should transfer to the social enterprise. This is a question of working out who is ‘assigned’ to the undertaking. The TUPE Regulations do not define what ‘assigned’ means, but it is normally a question of working out how much time the relevant individual spends working in the undertaking that is to transfer. If they spend most of their time working in the undertaking, then the expectation would be that they transfer. However, other factors such as the value of the individual to the undertaking and their contractual terms may be relevant. In terms of the rights and liabilities that transfer, these are:
- express terms in the employee’s contract of employment (including terms negotiated at a national and local level), for example:
- pay scales, rates and pay intervals
- job title
- job function
- place of work
- hours of work
- salary
- holiday entitlement
- enhanced contractual sick pay
- enhanced contractual maternity pay
- notice
- disciplinary grievance and other procedures
- implied terms in the contract of employment – those terms that both parties are taken to have agreed to, which include:
- terms that are too obvious to need recording
- terms that are part of the custom and practice of the business or industry
- terms that can be logically deduced from the conduct of the parties.
As rights and liabilities in connection with the contract transfer (not just the contractual terms themselves) so does liability for statutory claims, also transfer. For example, liability for a discriminatory act which occurred before the transfer date would transfer to the new, transferee employer.
Trade union recognition may also transfer to the new, transferee employer. This will be the case where after the transfer; the transferred employees maintain a distinct identity in the social enterprise.
The position on pensions is set out in section 4.8.
### 4.4 Employers’ liability
Generally speaking, at the point of transfer, liability for the employees becomes that of the ‘transferee’ party (the social enterprise organisation that will now deliver the service). This includes liability for claims arising out of acts of omissions done by the transferor employer (in this type of case normally the council) up to the date of the transfer. However, sometimes the transferor employer will agree to indemnify the transferee employer for any liabilities it may take on in respect of the period up to the transfer. Whether that will be appropriate will depend on the particular circumstances of the social partnership.
### 4.5 Information and consultation obligations
On a TUPE transfer both the transferee and transferor employer are under a duty to inform and consult on the transfer with the appropriate representatives of all affected employees. In the case of a transfer of employees from a council, it is anticipated that the appropriate representatives would be the trade union representatives. For those employees not covered by trade union representatives or other formal workplace representatives, elected representatives would have to be put in place. Affected employees include not only the transferring employees, but those remaining with the transferee (ie council employees, who will be affected by the transfer). There is no set time scale over which the informing and consulting process must take place. However, it is important that enough time is allowed to enable meaningful consultations to take place, as a failure to inform or consult can result in each affected employee being awarded up to 13 weeks’ pay. Both the transferee and transferor can be liable to pay that award.
This is an outline of the informing and consulting obligations, and on a transfer, further advice should be sought on the full extent of the parties’ duties. Further information on TUPE is available by clicking here: e-guide to TUPE: www.lge.gov.uk/tupeguide (Registration/login required)
4.6 Post-transfer issues
In many cases the social enterprise will simply continue to apply the existing terms and conditions that transferred. However, sometimes it may be necessary to make changes to terms and conditions.
The TUPE Regulations are designed to protect the transferring employees. Therefore, the Regulations restrict the ability to make changes to terms and conditions or to make dismissals, where those changes or dismissals are connected to the transfer.
However, the key to being able to make changes or dismissals will often be linked to whether the employer has an economic, technical or organisation (ETO) reason for the change or dismissal. In a social enterprise situation, this will often be the case (see section 4.6.3 below). It is important though that the process is handled properly to comply with legal obligations and to maintain good employee relations. Sections 4.6.1-4.6.3 outline how and when changes can be made.
4.6.1 Changes to terms and conditions
Under TUPE, changes to terms and conditions will be possible if they are agreed and:
a. are unconnected to the TUPE transfer (this will not often be the case)
or
b. if the changes are related to the transfer, that the changes are for an economic, technical or organisational ETO reason, entailing changes in the workforce. Changes in the workforce means changes in job functions, or numbers in the workforce as a whole.
If the change to the terms and conditions is unconnected with the transfer, it does not mean that the variation is necessarily lawful. In summary, the change will only be lawful if the employee agrees to it.
4.6.2 Dismissals
Dismissals are possible in a TUPE situation, provided:
a. the dismissal is unconnected with the transfer (for example it is for an unrelated disciplinary matter)
or
b. if the reason is connected with the transfer, it is for an ETO reason.
As with variations to contracts it is important that the correct processes are followed and further information is available by clicking here: e-guide to variations of contracts: www.lge.gov.uk/variationguide (Registration/login required) 4.6.3 The economic, technical or organisational (ETO) reason It cannot be stressed too strongly that the ETO must be valid, real and justifiable, and the party making the changes must be relying on its own ETO reason. If this cannot be proven, any purported variation of the contracts would be void or any dismissals connected with it would be viewed as automatically unfair.
The Regulations do not define what an ETO reason is, but in the context of a social partnership, examples may be:
a. Economic: the need to improve profitability and therefore increase the viability of the social enterprise.
b. Technical: the introduction of new machinery/equipment that requires less labour.
c. Management: the removal of supervisory grades, with those supervisory functions being carried out by other existing management posts.
In a social enterprise context, part of a responsible business planning process must include detailed financial projections; business strategies and so forth. The social enterprise could show that it is has an ETO reason as part of its business plan, but it must be a genuine and valid.
It is important that social enterprises managing transferred employees are very clear about the reasons for variation and ensure that essential steps are taken, including:
- undertaking individual consultation with those involved
- where appropriate, undertaking collective consultation with union or elected employee representatives
- where a workforce reduction is necessary to create a viable business, a thorough and exhaustive process is undertaken to ensure fair selection.
Even if all these steps are followed, there is no guarantee that the ETO changes or dismissals cannot be challenged.
4.7 ‘Second generation’ transfers
Where a service transfers from the original provider to a subsequent transferee, TUPE will apply to the subsequent transfer. So, in the case where a transfer has been made, it subsequently transfers to another provider and the original terms and conditions have remained unchanged, current conditions would be maintained. If terms and conditions have been changed, it is those latter terms that would transfer to the subsequent transferee.
4.8 Pensions
Rules on pension transfers are complicated for the pension non-professional. When considering social enterprise transfers, the council should consult with the pensions manager of their LGPS administering authority and may need to take legal and actuarial advice to ensure that the pension implications (and costs) associated with such a transfer are fully understood and accounted for. 4.8.1 Overview The combination of:
a. DCLG Circular 03/2003 (Local Government Act 1999: Part 1 Best Value and Performance Improvement) and Annex D of that Circular, which contains the Code of Practice on Workforce Matters in Local Authority Service Contracts and
b. Sections 101 and 102 of the Local Government Act 2003
provides a package of measures designed to ensure protection of the terms and conditions of transferred staff as well as fairness for new workers taken on to work on local authority service contracts alongside a workforce transferred from the local authority.
The Directions Order issued under Section 101 requires that transferring local authority employees must be offered the right to acquire future pension benefits which are:
• the same as, or • broadly comparable to, or • better than
those they had as an employee of the local authority. This can be achieved by providing the transferred employee with continued access to the LGPS or by providing them with a broadly comparable scheme.
A broadly comparable scheme has to be scrutinised by a qualified actuary in accordance with the Government’s Actuary’s Statement of Practice to ensure there is no material detriment overall in future pension rights. Additionally, bulk pension transfer terms between the LGPS and the broadly comparable scheme may be agreed.
Paragraph 10 of the Code of Practice requires that new employees taken on to work on the contract after the work is outsourced are offered one of three options regarding pensions. These are:
• membership of the LGPS • membership of a good quality employer pension scheme being either a contracted out, final salary defined benefit scheme, or a defined contribution scheme. For defined contribution schemes the employer must match employee contributions of up to 6 per cent • a stakeholder scheme under which the employer must match employee contributions of up to at least 6 per cent.
4.8.2 Access to the LGPS Access to the LGPS can be achieved in a number of ways, depending on the type of employer to whom the employees are being transferred.
Town and Parish Councils A Town or Parish Council can pass a resolution specifying individual employees or a class of employees as being eligible for membership of the LGPS.
Companies under the control of the local authority A company under the control of a local authority can pass a resolution specifying individual employees or a class of employees as being eligible for membership of the LGPS. ‘Under the control’ has the meaning given in section 68 or, as the case may be, section 73 of the Local Government and Housing Act 1989 (except that any direction given by the Secretary of State must be disregarded). Community admission bodies
The following employers can apply to the pension fund administering authority to be a community admission body, thereby allowing their staff to participate in the LGPS under an admission agreement:
- A company which, for the time being, is subject to the influence of a local authority. ‘Subject to the influence’ has the meaning given in section 69 of the Local Government and Housing Act 1989.
- A body, other than the governors or managers of a voluntary school, which provides a public service in the UK otherwise than for the purposes of gain and which either:
- has sufficient links with the local authority for there to be a community of interest (whether because their operations are dependent on each other or otherwise), or
- is approved by the Secretary of State for the purposes of admission to the LGPS.
- A body, other than the governors or managers of a voluntary school, to the funds of which a local authority contributes.
Whilst such employers can apply for admission body status, the pension fund administering authority is under no obligation to accept the application. Where it does so, the admission agreement would be subject to the terms set by the pension fund administering authority.
Transferee admission bodies
A transferee admission body is an employer, other than a community admission body, that provides:
- a service or assets in connection with the exercise of a function of a local authority, as a result of the transfer of the service or assets under a contract or other arrangement or
- a public service and is approved by the Secretary of State for the purposes of admission to the LGPS.
Full guidance on this can be found in ‘Admitted body status provisions in the Local Government Pension Scheme when services are transferred from a local authority or other scheme employer’, Department for Communities and Local Government, Crown Copyright, 2009.
Unlike community admission bodies, the pension fund administering authority cannot veto an application from a transferee body if the transferee body and the local authority letting the contract both agree to meet the requirements of the LGPS Regulations.
4.8.3 Brief overview of admission body status (ABS)
As a brief overview, 10 key points to consider on ABS in an employee-led spin-out are:
01. It is important to discuss pension issues at the earliest possible opportunity with both the ‘letting authority’ (the council of the spin-out venture) and the ‘LGPS administering authority’ (the organisation running the pension service). These could be the same organisation.
02. ABS is not a requirement of the contracting-out process, so the employees considering the spin-out should consider a ‘broadly comparable pension’ and balance the options as part of their business proposal.
03. It is the administering authority that enters into the agreement with the new (spin-out) body but, in the case of a transferee admission agreement (other than one approved by the Secretary of State), the letting authority must also be a party to that agreement. In the case of a transferee admission agreement an administering authority cannot decline to admit the spin-out body if the spin-out body and the letting authority agree to meet the relevant requirements of the LGPS Regulations (but the administering authority can decline an application from a spin-out community body).
04. The transferred employees and any new employees specified in the admission agreement as being eligible for membership of the LGPS are treated as if they were employed by a scheme employer, but their participation is contractual not statutory.
05. Admission agreements can be ‘closed’ or ‘open’: a. ‘closed’ – only those employees engaged at the point of transfer can participate in the scheme b. ‘open’ – both transferred and new employees can participate in the scheme.
06. However, in the case of a transferee admission agreement, employees of the spin-out body only remain eligible for participation in the LGPS for so long as they continue to be employed in connection with the delivery of the local authority’s outsourced function. This could mean that should the spin-out diversify into other ventures, not connected with the authority’s outsourced function, those employees engaged in such other work could cease to be eligible for continued participation in the LGPS.
07. In the case of a transferee admission agreement (other than one approved by the Secretary of State), the letting authority should carry out, with appropriate actuarial advice, an assessment of the level of risk that could arise upon the spin-out’s premature termination, insolvency, or winding-up. This may result in the spin-out having to provide a bond or indemnity to meet the level of risk (unless the letting authority agrees that a lower level of bond or indemnity, or no bond or indemnity, is required, in which case the letting authority would, in effect, be acting as guarantor for any pension deficit arising upon the spin-out’s premature termination, insolvency, or winding-up). The cost of the bond or indemnity, or level of risk to be covered by the letting authority, would need to be factored into the business case.
08. In the case of a community admission agreement, the pension fund administering authority may seek a bond or indemnity or look to the letting authority to act as a guarantor for any pension deficit arising upon the spin-out’s premature termination, insolvency, or winding-up. The cost of the bond or indemnity, or any level of risk to be covered by the letting authority, would need to be factored into the business case.
09. In conjunction with their actuary, an administering authority is required to establish an employer’s contribution rate for a new employer (the spin-out body) participating in the scheme. The costs associated with obtaining this should be factored into the business case. It is usual, when assessing the new employer’s (spin-out’s) contribution rate, for any existing past service underfunding liability in respect of the transferring employees, to be retained by the local authority from whom the employees are transferring.
10. The spin-out will need to obtain their own legal and actuarial advice, as appropriate, to assess the potential pension costs for them as an employer during the lifetime of the contract.
Key issues
Councils should be certain that all transfer issues are addressed and resolved at the earliest stage, to avoid the potential for damaging claims arising from the transfer. In particular, where workforce reductions are a necessary part of the business model:
- that a proper and thorough consultation and selection process is undertaken
- that proper engagement with all affected (both directly and secondarily affected) staff is undertaken by both the social enterprise requestor and the council
- that particular attention is paid to pension issues. Whatever pension option is chosen by the new employer for future pension provision, discussions about pensions early in the process are essential. Section 5: The top 10 things to consider
In this section, we summarise the important things for employers to consider when responding to a social enterprise request. This list is not intended to be extensive or exhaustive and pending formal guidance on the implications of the Localism Bill; it is intended as a starting point for discussion with applicant employees.
1. Viability
On the assumption that councils have at least an outline business case to consider, does the business case demonstrate enough business acumen and planning to suggest it could be a viable proposition? By what criteria will councils decide? Are the liabilities and responsibilities on each party clear?
2. Capability
Have the applicants identified any skills gaps that exist which need to be filled in terms of running a business? Have they identified and engaged with support mechanisms? What support can the council offer on equitable terms with other social enterprise applicants?
3. Procurement rules
As described in section 1.4, the procurement position as it currently stands is complex, so professional procurement advice to the council at the point of employee request is essential.
4. Social impact
Has the applicant a clear sense of the customer base of the new social enterprise? What stakeholder engagement has taken place, and what results are being presented? Has the applicant considered an increase or decrease in service demand, and is there an outline strategy to deal with both eventualities?
5. Sustainability
Has the applicant a clear business strategy for the long-term sustainability of the venture? Have they considered the ‘competition’, both public sector spin-outs and private sector organisations and identified potential business opportunities?
6. Approval mechanisms
Has the council, either singly or collectively with other councils, defined by what method it will approve or reject requests? Is the framework the same in each case, or will it be adaptable enough to respond to the different needs and priorities of each request?
7. Sovereignty
Who is the eventual ‘owner’ of the business? What will happen in the case of property or other resource transfers? Detailed advice to both parties should be sought on leasing/loan/gifting arrangements from expert advisers in the particular field. 8. **Shared services**
Has the applicant considered and discussed plans with matching services from adjacent councils? If a matching service nearby is planning a social enterprise venture, what potential is there to create a shared approach to minimise later competition for business?
9. **Timescales**
As shown in the NHS model (section 1.2.1.) creating a social enterprise can be a lengthy process, which could take as long as a year to complete. Councils will need to consider the time it will take to establish social enterprises, in particular any parallel running arrangements in terms of overall organisational budget and service provision pressures.
10. **Monitoring**
What monitoring and/or quality assurance process is the applicant proposing, or what such assurances will the council require to ensure that quality public services are maintained? Is there a current contractual, commissioning model that could be applied or adapted? The transition to shared ownership can be complex and often challenging. There is no 'one-size fits all' answer as each council will have different customers, characteristics and choices to make. Each new organisation must be formed to meet the demands and opportunities of the unique circumstances it faces. This guide is intended to provide helpful guidance on how the transition can be made from traditional public service delivery to social enterprise.
However, the transition is just half of the journey. At the time of writing, social enterprises are not guaranteed any form of contract and will need to compete against other private and public organisations. They will also face the lack of stability of future contracts, which can have a negative impact on staff morale and cause real difficulty in attracting private funding. However, once the transition is complete, and a contract has been awarded, effective monitoring and evaluation is essential to help ensure that services delivered are of the highest possible quality, and that they embody the highest standards of integrity, credibility and accountability. Ongoing monitoring and evaluation will help ensure that the social enterprise is working with the greatest possible effectiveness and efficiency, whilst providing value for money and, above all, making a real difference.
What will success look like for social enterprises? For conventional businesses and entrepreneurs, success means cash or growth and this is no different with regard to social enterprises. However, success means much more than that in the case of a social enterprise such as all the wider social, environmental or economic impacts that the business is creating. In this way, social enterprises can be said to have a ‘triple bottom line’.
The ‘triple bottom line’ is a term that was coined by John Elkington in 1994. It was originally conceived to find a language that would explain how corporations should care about more than financial profit and to also think about the social and environmental value they add – or destroy.
Therefore, when evaluating contracts awarded to social enterprises, it is important to also be looking at the social and economic value created and ensuring that environmental and economic impacts are fully accounted for.
Finally, please note that this guide is not intended to be a definitive statement of the law and, as ever, councils need to take their own legal and financial advice. Key issues
The transition to new ventures is best achieved where Trade Unions are key partners throughout.
Leadership and management are key to the success of the new venture.
Insurance, VAT, IT, human resources, procurement, finance and accountancy are core services, which councils could offer to new ventures to help smooth the transition.
Potential ‘deal-breakers’ should be resolved at the outset (assets, employee terms and conditions, VAT, pensions).
Under current legislation, social enterprises may face a lack of stability of contracts, and therefore may have to compete against other private and public organisations.
For more detailed, professional employment advice, please contact [email protected] or for a more informal discussion, please contact [email protected] in the first instance. Appendix A: The implications of the Localism Bill – Community Right to Challenge
At the time of writing (February 2011), the Localism Bill has entered the Commons Committee Stage, and the Public Bill Committee has invited evidence from experts and interest groups from outside parliament. This section focuses on the implications of the Bill as currently drafted.
The Localism Bill allows for the delivery of traditionally in-house services to be run through various different models. It gives ‘relevant bodies’ the right to submit an ‘expression of interest’ to run a ‘relevant service’.
‘Relevant bodies’ are defined as:
a. a voluntary or community body b. a body of persons or a trust which is established for charitable purposes only, c. a parish council d. in relation to a relevant authority, two or more employees of that authority e. such other person or body as may be specified by the Secretary of State by regulations.7
In the context of employee ‘spin-outs’, it is subsection 5 (d) that confers this right.
A ‘relevant service’ is defined as:
“in relation to a relevant authority, means a service provided by or on behalf of that authority in the exercise of any of its functions, other than a service of a kind specified in regulations made by the Secretary of State.”8
NB The ‘services specified in regulations’ have not yet been made public.
The obligations on councils
Briefly summarised, and extracting some key points for consideration, the Right to Challenge as currently drafted, means that:
• A ‘relevant body’ may submit an expression of interest at any time.
• Or, councils may specify periods when expressions may be submitted, subject to the publication (including websites) of the details.
• Councils can refuse to consider an expression of interest outside specified times, subject to minimum times set down by regulation by the Secretary of State.
• If councils accept an expression of interest they must carry out a procurement exercise which has “regard to the value and nature of the contract that may be awarded as a result of the exercise.”9 (See section 1.4 of this guide ‘Procurement issues’.)
• The council must consider in both the expression of interest and the procurement exercise how they would promote or improve the social, economic
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7 Localism Bill, Chapter 3, 66 (5) 8 Localism Bill, Chapter 3, 66 (4) 9 Localism Bill, Chapter 3, 68 (3) or environmental well-being of the area. In the consideration of the procurement exercise, this “applies only so far as it is consistent with the law applying to the awarding of contracts…”.
Councils may only reject the expression of interest on grounds specified by the Secretary of State by regulations. (NB These regulations are not yet published.)
- With the agreement of the ‘relevant body’, councils may modify an expression of interest, if it would not otherwise be ‘capable of acceptance’.
- A ‘relevant body’ may withdraw the expression of interest, which does not prevent the council carrying out the procurement exercise.
______________________________________________________________________
**Key issues**
Subject to parliamentary approval, the Localism Bill will obtain Royal Assent in autumn 2011 and the Community Right to Challenge will commence from April 2012 at the earliest.
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10 Localism Bill, Chapter 3, 68 (7) Appendix B: Information sources
Social Enterprise Coalition www.socialenterprise.org.uk
The Social Enterprise Coalition represents a wide range of social enterprises, regional and national support networks and other related organisations.
Co-operatives UK www.cooperatives-uk.coop
Co-operatives UK is the national trade body that campaigns for cooperation and works to promote, develop and unite cooperative enterprises.
School for Social Entrepreneurs (SSE) www.sse.org.uk
SSE exists to provide training and opportunities to enable people to use their creative and entrepreneurial abilities more fully for social benefit. SSE supports individuals to set up new charities, social enterprises and social businesses across the UK.
Business Link www.businesslink.gov.uk
Business Link is a free business advice and support service, available online and through local advisers. However, the Business Link regional advisory service will close in November 2011.
Social Investment Business www.socialinvestmentbusiness.org
The Social Investment Business helps social enterprises, charities and community organisations prosper by providing innovative financial solutions and business support.
Cabinet Office www.cabinetoffice.gov.uk
The central government department responsible for promoting social enterprise and the voluntary sector.
Community Interest Companies Ltd www.cicregulator.gov.uk
This is the website of the Community Interest Companies Regulator.
The Employee Ownership Association (EOA) www.employeeownership.co.uk
EOA provides succession advice to companies considering transition to employee ownership; help to co-owned companies who want to make more of their employee ownership; and information to organisations and individuals with an interest in employee ownership. C1. Response to an initial employee-led social enterprise request (adapted from the NHS Right to Request Expression of Interest Guidance and Template and pending guidance on the implementation of the Localism Bill)
Dear (Employee(s))
Social enterprise venture
Thank you for your enquiry about forming a social enterprise venture to deliver services in (Service Area).
To ensure that your plans can be fully understood, and for the council to support you in developing your initiatives, it will be necessary for you to prepare and present to (decision-making panel) an outline business case, setting out your aims and objectives. The format in which you present this is of your own choice, but you should include:
• **A summary** – setting out your overall intent, and summarising the benefits.
• **The background** – what are the social, economic, environmental issues that make your idea a good one? How are services delivered now, and how does your idea improve on that?
• **Aims and objectives**, including:
o **Vision** – can you contain in one sentence what your ambitions are?
o **Mission** – the mission statement is a summary of what the organisation does or intends to do, for whom and where. You need to be able to communicate the work of your social enterprise in a way that everyone can understand.
o **Strategic objectives** – what is it the enterprise wants to achieve in a given period, say, three to five years?
• **Range of services** – a description of the services that your proposed social enterprise will provide. This could include a range of services or a single service area. Briefly explain how the enterprise will ensure the quality of delivery, and monitor and evaluate its performance.
• **Stakeholder engagement** – identify the people and organisations that will have to be involved and informed in the development of your social enterprise. This will include stakeholders such as staff, service users, community organisations and partner organisations.
Once the stakeholders are identified, consider the following questions in relation to each of them: • What is their involvement in the social enterprise? • What interest do they have in developing a social enterprise? • How will change affect them? • What influence do they have on the plans? • Who else needs to be engaged?
• Use the stakeholder analysis to identify the key stakeholders and consider how they will be affected by the proposed social enterprise development and how you plan to manage them.
The business case should also document the results of any consultation carried out in relation to your proposed social enterprise.
• **Partnership/collaboration** – if your proposal includes an intention to work in partnership or collaboration with existing social enterprises or other service areas and organisations, you should outline the details here. You should also illustrate how this will benefit service users and the wider community, for example through improved community engagement and ownership.
• **Costs** – it is unlikely that you will have a full understanding of the costs at this stage. You might wish to give an indication of what you think the costs of setting up and running a social enterprise will be and recommend that a full feasibility study be carried out if the submission is successful.
• This section should also include the resources required to progress to a full business case. This may include staff time to complete the case as well as training and business support to enable you to develop the business case.
• **Risks** – list and briefly describe the risks that are immediately obvious in relation to the project. This may relate to staff skills in certain areas, such as financial management, leadership and governance. It may also include competition and the nature of the market for the services you wish to provide.
• **Governance** – social enterprises are often characterised by inclusive governance arrangements. You will need to consider how you will involve staff and the local community in the management and direction of the social enterprise. Some social enterprises, for example, have service users as members and directors of the organisation.
• **Timescales** – provide a general statement as to the approximate length of the project and show approximate milestones. State that detailed timescales will be provided if this expression of interest is approved.
In response to this letter, it would be helpful if you could reply as soon as possible to let me know how long you require preparing your outline business case. In general this should take around two to three months to prepare. If there are any resources the council can provide, or external sources you wish to access, to assist you in this, please let me know. Whilst we must balance your request with ensuring current service provision, we will assist you as far as possible.
I look forward to receiving your proposal.
Yours sincerely
(Signatory) C2. Provisional acceptance letter
Dear (Employee(s))
Social enterprise venture
Thank you for submitting and presenting your outline business case. I am pleased to tell you that your case has been recommended to go forward to the development of a full detailed business case. Building on the work you have already carried out, we now need a fully costed business case which additionally includes:
• The full costs of setting up your venture. This should include, as accurately as possible:
1. your initial start-up costs
2. your on-going running costs
3. sources and level of funding you will apply for.
• Your proposed staffing structure, including your plans for:
1. workforce transfer and reductions (if necessary)
2. management and accountability arrangements
3. pension arrangements.
• Your business model, detailing how you are constituting your new venture, for example:
1. Are you setting up a private limited company, an industrial and provident society, or some other type of organisation to deliver the service?
2. Where do you see growth opportunities and how will you pursue these?
• Your community engagement strategy including:
1. how the local community will benefit from your venture
2. how you plan to engage with the community both now and in the future.
• Your implementation plans including:
1. if you require a period of ‘dual running’ whilst still employed by the council
2. how long you anticipate that period to be.
Your business case should be as detailed as possible, and presented in a clear and easily understandable format. You are strongly advised to take professional advice and assistance. A range of organisations exists to assist social enterprise ventures (reference to Appendix B and section 2.2 of this guide) and I would urge you to make contact with these as soon as possible.
Again, I would be grateful if you could advise me of how long you anticipate it will take you to prepare a fully detailed case. In general, this should take no longer than six months.
If there are any resources the council can provide in terms of support or of staff release time to work on this, please let me know. I am sure you would understand that must be balanced with service provision requirements, but all efforts will be made to accede to your request.
Yours sincerely (Signatory) Appendix D: Selected references and bibliography
Bibby, Andrew; The Employee Ownership Association, April 2009 ‘From colleagues to owners: Transferring ownership to employees’.
Brettle, Oliver; Benefits and Compensation International, Vol.37 No.4 November 2007 ‘The EU Acquired Rights Directive and its impact on business transfers’.
Cabinet Office, May 2010 ‘The Coalition: our programme for government’.
Charlton, John, Employer’s Law September 2010 pp 12-13 ‘The 10 biggest TUPE pitfalls’.
Davis, Peter; Geneva; International Labour Organisation; 2004 ‘Human Resource Management in cooperatives’.
Department for Business Innovation and Skills, January 2011 ‘Bigger Better Business; helping small firms start, grow and prosper’.
Department for Communities and Local Government, December 2010 ‘Decentralisation and the Localism Bill: an essential guide’.
Department for Communities and Local Government: London 2009 ‘Admitted body status provisions in the Local Government Pension Scheme when services are transferred from a local authority or other scheme employer’.
Derbyshire Wyn, Hardy Stephen, London, Spiramus Press, 2009 ‘TUPE: law and practice’ (second edition).
IDS Employment Law Brief No.913 November 2010 pp.12-18 ‘Service Provision changes and TUPE: a review’.
Incomes Data Services, London 2007 ‘Transfer of Undertakings’.
Landon Michael; Benefits and Compensation International; Vol. 40 No. 4 November 2010 ‘UK tax-favoured share plans: what’s next?’.
Local Partnerships, 2010 ‘The Journey: Becoming a Mutual or Social Enterprise’. NHS; Directorate of Commissioning and System Management/Social Enterprise Unit; March 2009 ‘The Right to Request; Making an expression of interest: Guidance and Template’.
Oakeshott Robert; Norwich, Michael Russell, 2000 ‘Jobs and fairness: the logic and experience of employee ownership’.
Office for Civil Society, 2010 ‘Building a Stronger Civil Society; a strategy for voluntary and community groups and Social Enterprise’.
Office for Public Management, August 2010 ‘New Models of Public Service Ownership: a guide to commissioning, policy and practice’.
Postlethwaite, Robert; The Employee Ownership Association, March 2009 ‘Structuring employee ownership; a guide to trusts, shares and tax help for co-ownership’.
Sengupta Sukanya; Industrial Relations Journal, Vol.39 No. 3; 2008 ‘The impact of employee share-ownership schemes on performance in unionised and non-unionised workplaces’.
Silcox, Sarah: The Employee Ownership Association ‘Making employee ownership work – a benchmark guide’.
Social Enterprise London ‘Transitions: An introduction for public sector staff, showing how making the transition to Social Enterprise could transform your public service’.
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9e599dc272eda3c0376fd22b019a7373713fa8a8 | Making Safeguarding Personal Toolkit
Practice Tool 5: Six core principles – ‘I’ statements You can use this tool from ‘What might good like for advocacy?’ (ADASS & LGA, 2017) as a check list with a person involved in safeguarding and to inform the ways in which professionals communicate with people about safeguarding.
| **Empowerment:** People being supported and encouraged to make their own decisions and informed consent. | ‘I am asked what I want as the outcomes from the safeguarding process and these directly inform what happens.’ | | --- | --- | | **Prevention:** It is better to take action before harm occurs. | ‘I receive clear and simple information about what abuse is, how to recognise the signs and what I can do to seek help.’ | | **Proportionality:** The least intrusive response appropriate to the risk presented. | ‘I am sure that the professionals will work in my interest, as I see them and they will only get involved as much as needed.’ | | **Protection:** Support and representation for those in greatest need. | ‘I get help and support to report abuse and neglect. I get help so that I am able to take part in the safeguarding process to the extent to which I want.’ | | **Partnership:** Local solutions through services working with their communities. Communities have a part to play in preventing, detecting and reporting neglect and abuse. | ‘I know that staff treat any personal and sensitive information in confidence, only sharing what is helpful and necessary. I am confident that professionals will work together and with me to get the best result for me.’ | | **Accountability:** Accountability and transparency in delivering safeguarding. | ‘I understand the role of everyone involved in my life and so do they.’ |
This tool, based on the six core safeguarding principles (DH, 2018, s4.13), is adapted from ADASS & LGA (2017: 26) MSP: What might good look like for advocacy: [www.tiny.cc/MSP-advocacy](http://www.tiny.cc/MSP-advocacy) Top Tips: Promoting Safeguarding
Maintain a stance of curiosity and stepping outside of institutionalised frameworks and procedures from time to time. Be able to deconstruct any stereotypes or conditions that are preventing expression and engagement with the person’s own voice. Where there are tensions and conflicts, be active in bringing these to the attention of those able to challenge and reduce barriers or unhelpful culture for involvement.
Use narrative and ‘I’ statements (as illustrated on previous page) to increase communication and user-led meaning-making alongside provision of appropriate support for communication and participation. This might involve:
> key people in the person’s life; providing support to attend and participate in meetings; holding meetings in places more familiar which suit the person; providing accessible records; allocating time and establishing a climate of trust; relationship-based practice; and training everyone, including administrative staff, to support a more open climate.
Take shared responsibility for exploring and managing risk with people and, where appropriate, appoint an advocate to help people understand their rights in the context of the harm itself, safeguarding procedures, interventions and the individual’s rights in relation to these (Sherwood-Johnson, 2016).
‘Top tips and pointers for good practice’ from: Trish Hafford Letchfield and Sarah Carr (2017) ‘Promoting safeguarding’ Chapter 5 in Cooper A and White E (Eds) (2017: 105-106) Safeguarding Adults under the Care Act 2014: Understanding Good Practice. London & Philadelphia: Jessica Kingsley
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c420be988b493abeb761b7aad92ecdbc11b919e9 | Pre-release Access to Official Statistics: European Forest Accounts
Last updated: December 2020
Next update due: December 2020
Introduction Our arrangements for pre-release access to Official Statistics are described in a Pre-Release Access Statement(^1).
This document supplements the statement by giving the names and/or job titles of all those persons to whom pre-release access has been granted to European Forest Accounts, as follows:
- Part 1 provides a list of those receiving pre-release access to the Official Statistics in their final form for briefing purposes. As this is a release covering Great Britain, the pre-release access period is limited to 24 hours.
- Part 2 provides a list of those receiving pre-release access for quality assurance purposes.
The justification for giving advance access to each listed recipient will be available on request.
Sheila Ward Forest Research
(^1) [https://www.forestresearch.gov.uk/tools-and-resources/statistics/about-our-statistics/code-of-practice/pre-release-access-to-official-statistics/](https://www.forestresearch.gov.uk/tools-and-resources/statistics/about-our-statistics/code-of-practice/pre-release-access-to-official-statistics/) Part 1: Pre-release access to final form (24 hours) (last updated December 2020)
Department for Environment, Food and Rural Affairs:
- Tim Brooks, Head of Trees, Woodlands & Forestry Policy
- Alasdair Bray, Policy Adviser
- Adam Bealby, Head of External Communications, FC Team
- Phoebe Brown, Communications Officer
Forestry Commission:
- Ian Tubby, Principal Adviser, Business and Markets, Forest Services
Forestry England:
- James Simpson, Director of Operations – Forestry and Land Management
Scottish Forestry:
- Alan Hampson, Head of Policy
- Bob Frost, Policy Adviser for Sustainable Forest Management
Welsh Government:
- PS First Minister
- PS Minister for the Environment, Energy and Rural Affairs
- PS Minister for Finance and Trefnydd
- PS Minister for Environment
- PS Permanent Secretary • Daniel Butler, Special Adviser • Tim Render, Director, Land, Nature and Forestry Division • Ceri Witchard, Deputy Director Land, Nature and Forestry Division • Elizabeth Lyon, Head of Forestry Resources Policy Branch • Jon Travis, Head of Forestry Reform • Heledd Owen, Head of Communications and Marketing, Natural Resources Dept • Simon Jenkins, Head of News
Forest Research: • James Pendlebury, Chief Executive • Clare Parker, Head of Communications Part 2: Pre-release access for quality assurance (last updated November 2020)
Forestry Commission:
- Ian Tubby, Principal Adviser, Business and Markets, Forest Services
Forest Research:
- James Pendlebury, Chief Executive
- Chris Quine, Chief Scientist
- Nicol Sinclair, Head of Inventory, Forecasting & Operational Support
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3d2c8e1ce707e347e4a4df3601e7aecded0573f3 | Pre-release Access to Official Statistics: Forest Resources Assessment
Last updated: December 2020 Next update due: tbc
Introduction Our arrangements for pre-release access to Official Statistics are described in a Pre-Release Access Statement¹.
This document supplements the statement by giving the names and/or job titles of all those persons to whom pre-release access has been granted to Forest Resources Assessment, as follows:
- Part 1 provides a list of those receiving pre-release access to the Official Statistics in their final form for briefing purposes. As this is a release covering Great Britain, the pre-release access period is limited to 24 hours.
- Part 2 provides a list of those receiving pre-release access for quality assurance purposes.
The justification for giving advance access to each listed recipient will be available on request.
Sheila Ward Forest Research
¹ https://www.forestresearch.gov.uk/tools-and-resources/statistics/about-our-statistics/code-of-practice/pre-release-access-to-official-statistics/ Part 1: Pre-release access to final form (24 hours) (last updated December 2020)
Department for Environment, Food and Rural Affairs:
- Tim Brooks, Head of Trees, Woodlands & Forestry Policy
- Alasdair Bray, Policy Adviser
- Adam Bealby, Head of External Communications, FC Team
- Phoebe Brown, Communications Officer
Forestry Commission:
- Ian Tubby, Principal Adviser, Business and Markets, Forest Services
Forestry England:
- James Simpson, Director of Operations – Forestry and Land Management
Scottish Forestry:
- Alan Hampson, Head of Policy
- Bob Frost, Policy Adviser for Sustainable Forest Management
Welsh Government:
- PS First Minister
- PS Minister for the Environment, Energy and Rural Affairs
- PS Minister for Finance and Trefnydd
- PS Minister for Environment
- PS Permanent Secretary • Daniel Butler, Special Adviser • Tim Render, Director, Land, Nature and Forestry Division • Ceri Witchard, Deputy Director Land, Nature and Forestry Division • Elizabeth Lyon, Head of Forestry Resources Policy Branch • Jon Travis, Head of Forestry Reform • Heledd Owen, Head of Communications and Marketing, Natural Resources Dept • Simon Jenkins, Head of News
Forest Research: • James Pendlebury, Chief Executive • Clare Parker, Head of Communications Part 2: Pre-release access for quality assurance (last updated November 2020)
Forest Research:
- James Pendlebury, Chief Executive
- Chris Quine, Chief Scientist
- Nicol Sinclair, Head of Inventory, Forecasting & Operational Support
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b1e1fb9184f54149982616d7ec42ab2ed6b5d63c | Pre-release Access to Official Statistics: Joint Wood Energy Enquiry
Last updated: December 2020
Next update due: December 2020
Introduction Our arrangements for pre-release access to Official Statistics are described in a Pre-Release Access Statement¹.
This document supplements the statement by giving the names and/or job titles of all those persons to whom pre-release access has been granted to Joint Wood Energy Enquiry, as follows:
- Part 1 provides a list of those receiving pre-release access to the Official Statistics in their final form for briefing purposes. As this is a release covering Great Britain, the pre-release access period is limited to 24 hours.
- Part 2 provides a list of those receiving pre-release access for quality assurance purposes.
The justification for giving advance access to each listed recipient will be available on request.
Sheila Ward Forest Research
¹ https://www.forestresearch.gov.uk/tools-and-resources/statistics/about-our-statistics/code-of-practice/pre-release-access-to-official-statistics/ Part 1: Pre-release access to final form (24 hours) (last updated December 2020)
Department for Environment, Food and Rural Affairs:
- Tim Brooks, Head of Trees, Woodlands & Forestry Policy
- Alasdair Bray, Policy Adviser
- Adam Bealby, Head of External Communications, FC Team
- Phoebe Brown, Communications Officer
Department for Business, Energy and Industrial Strategy:
- Peter Coleman, Head of bioenergy and land use science
Forestry Commission:
- Ian Tubby, Principal Adviser, Business and Markets, Forest Services
Forestry England:
- James Simpson, Director of Operations – Forestry and Land Management
Scottish Forestry:
- Alan Hampson, Head of Policy
- Bob Frost, Policy Adviser for Sustainable Forest Management
Welsh Government:
- PS First Minister • PS Minister for the Environment, Energy and Rural Affairs • PS Minister for Finance and Trefnydd • PS Minister for Environment • PS Permanent Secretary • Daniel Butler, Special Adviser • Tim Render, Director, Land, Nature and Forestry Division • Ceri Witchard, Deputy Director Land, Nature and Forestry Division • Elizabeth Lyon, Head of Forestry Resources Policy Branch • Jon Travis, Head of Forestry Reform • Heledd Owen, Head of Communications and Marketing, Natural Resources Dept • Simon Jenkins, Head of News
Forest Research: • James Pendlebury, Chief Executive • Clare Parker, Head of Communications Part 2: Pre-release access for quality assurance (last updated November 2020)
Forest Research:
- James Pendlebury, Chief Executive
- Chris Quine, Chief Scientist
- Nicol Sinclair, Head of Inventory, Forecasting & Operational Support
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528a5b8fb5ed7bd178e7b6f59604cba836e00695 | Pre-release Access to Official Statistics: Provisional estimates of the ownership type and property type of woodlands in Britain
Last updated: November 2020
Next update due: tbc
Introduction Our arrangements for pre-release access to Official Statistics are described in a Pre-Release Access Statement¹.
This document supplements the statement by giving the names and/or job titles of all those persons to whom pre-release access has been granted to NFI Estimates of the ownership type and property type of woodlands in Britain, as follows:
- Part 1 provides a list of those receiving pre-release access to the Official Statistics in their final form for briefing purposes. As this is a release covering Great Britain, the pre-release access period is limited to 24 hours.
- Part 2 provides a list of those receiving pre-release access for quality assurance purposes.
The justification for giving advance access to each listed recipient will be available on request.
Sheila Ward Forest Research
¹ https://www.forestresearch.gov.uk/tools-and-resources/statistics/about-our-statistics/code-of-practice/pre-release-access-to-official-statistics/ Part 1: Pre-release access to final form (24 hours) (last updated November 2020)
Forestry Commission:
- Jane Hull, Principal Advisor – Social Forestry
Scottish Forestry:
- David Signorini, Chief Executive
- Alan Hampson, Head of Standards, Evidence and Expertise
- Jonathan Taylor, Head of Scottish Forestry Executive Office
- John Cummings, Secretariat and Governance Officer
- Jason Hubert, Head of Business Development
- Bob Frost, Policy Manager
- Steve Williams, Senior Media Manager
Scottish Government:
- Fergus Ewing MSP, Cabinet Secretary for the Rural Economy and Tourism
- Mairi Gougeon MSP, Minister for Rural Affairs and the Natural Environment
- Roseanna Cunningham, Cabinet Secretary for Environment, Climate Change and Land Reform
- Bridget Campbell, Director for Environment and Forestry
- Fiona Harrison, Deputy Director Future Rural Policy Frameworks, Land Use and Land Reform
- Fiona Taylor, Head of Land Use and Land Reform
- Robin Cornwall, Senior Policy Officer Land Reform and Legislation
- Scott Rogerson, Communications
- Kate Higgins, Special Advisor Rural Economy and Connectivity
Welsh Government:
- Lesley Griffiths, Minister for Environment, Energy and Rural Affairs
- Jon Travis, Head of Forestry Reform • Elizabeth Lyon, Head of Forestry • Patrick Cowdy, Policy Advisor • Mark Hilleard, Policy Advisor
Forestry Land Scotland: • Michael Hymers, Director of Corporate Support • Trefor Owen, Director of Land Management • Simon Hodgson, Chief Executive • Paul Munro, Media Manager • Gwen Hamilton, Head of Communications
Forest Research: • James Pendlebury, Chief Executive • Clare Parker, Head of Communications Part 2: Pre-release access for quality assurance (last updated November 2020)
Forest Research:
- James Pendlebury, Chief Executive
- Chris Quine, Chief Scientist
- Nicol Sinclair, Head of Inventory, Forecasting & Operational Support
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c75b2244bd9fab5bcf04917554dc597fc3fa0e15 | Pre-release Access to Official Statistics:
NFI Squirrel stripping damage and presence of squirrels in woodland in Britain
Last updated: December 2020
Next update due: Tbc
Introduction
Our arrangements for pre-release access to Official Statistics are described in a Pre-Release Access Statement(^1).
This document supplements the statement by giving the names and/or job titles of all those persons to whom pre-release access has been granted to NFI Squirrel stripping damage and presence of squirrels in woodland in Britain, as follows:
Part 1 provides a list of those receiving pre-release access to the Official Statistics in their final form for briefing purposes. As this is a release covering Great Britain, the pre-release access period is limited to 24 hours.
Part 2 provides a list of those receiving pre-release access for quality assurance purposes.
The justification for giving advance access to each listed recipient will be available on request.
Sheila Ward Forest Research
(^1) [https://www.forestresearch.gov.uk/tools-and-resources/statistics/about-our-statistics/code-of-practice/pre-release-access-to-official-statistics/](https://www.forestresearch.gov.uk/tools-and-resources/statistics/about-our-statistics/code-of-practice/pre-release-access-to-official-statistics/) Part 1: Pre-release access to final form (24 hours)
Department for Environment, Food and Rural Affairs:
- Hugh Loxton, Environmental Integration and ELM, Trees, Woodlands & Forestry Policy
- Phoebe Brown, Communications Officer
- Adam Bealby, Head of External Communications, FC Team
Forestry Commission:
- Ian Gambles, Chief Executive Officer
- Richard Greenhous, Director of Forest Services
- Neil Riddle, Principal Adviser for Natural Environment
- David Cross, Evidence and Analysis Manager
Forestry England:
- Andrew Stringer, Head of Planning and Environment
- Nigel Foster, Lead Wildlife Manager
Scottish Government
- Cabinet Secretary for Environment, Climate Change & Land Reform
- Minister for Rural Affairs and Natural Environment
- Bridget Campbell, Director, Environment and Forestry
- Kate Higgins, Special Adviser
- John Cummings, Secretariat Officer
- Steve Williams, Press Officer
- Thomas Barker, Press Officer
- Hugh Dignon, Wildlife Management
- Matthew Bird, Biodiversity Team Scottish Forestry:
- David Signorini, Chief Executive
- Helen Sellars, Head of Sustainable Forestry Management
- Alan Hampson, Head of Standards, Evidence, Expertise and Policy
Forestry and Land Scotland:
- Simon Hodgson, Chief Executive
- Trefor Owen, Director of Land Management
- Michael Hymers, Director of Corporate Support
- Chris Nixon, Environment Manager
Welsh Government:
- Lesley Griffiths AM, Minister for Energy, Environment and Rural Affairs
- PS Minister for the Environment, Energy and Rural Affairs
- James Biott, Senior Strategic Policy Framework Adviser
- Jon Travis, Head of Forestry Reform
- Stuart Neil, Head of Agriculture and Rural Affairs Statistics
- Heledd Owen, Head of Communications and Marketing, Natural Resources
- Huw Jenkins, Communications Senior Information Officer
- Daniel Butler, Special Advisor
- Fiona McFarlane, Sustainable Forest Environment Policy Advisor
- Ceri Witchard, Deputy Director Land, Nature and Forestry Division
Forest Research:
- James Pendlebury, Chief Executive
- Clare Parker, Head of Communications
- Chris Quine, Chief Scientist
- Nicol Sinclair, Head of Inventory, Forecasting & Operational Support Part 2: Pre-release access for quality assurance
Forestry Commission:
- Rebecca Isted, Principal Adviser, Natural Environment
- Neil Riddle, Principal Adviser, Natural Environment
Forestry England:
- Neville Geddes, Lead Planning Manager
Natural Resources Wales:
- Chris Tucker, Specialist Advisor, Technical Forestry (Resilience)
Forest Research:
- James Pendlebury, Chief Executive
- Chris Quine, Chief Scientist
- Nicol Sinclair, Head of Inventory, Forecasting & Operational Support
Other:
- Chris Nichols, Conservation Evidence Manager, Woodland Trust
- Will Richardson, Director, Rural Development Initiatives
- Simon Lloyd, Chief Executive, The Royal Forestry Society
- Martyn Glynn, Chartered Forester & Rural Development Advisor, The Royal Forestry Society
- Glynn Jones, Environmental Economist, FERA
- Dan Small, Woodland Management Officer, The National Forest
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b66c3a55612c31b14f2c10e4f81d51d4dfc66f0e | Pre-Release Access to Official Statistics: Statement of Compliance
Last updated: June 2019
Next update due: January 2021
Introduction The Forestry Commission follows the requirements set out in the Code of Practice for Statistics(^1) (the 'Code') when publishing our statistics.
This statement sets out the Forestry Commission’s operational arrangements for implementing the separate requirements of the relevant Pre-release access to Official Statistics Order (the 'Order’). For most Official Statistics produced by the Forestry Commission, this is the Pre-release Access to Official Statistics Order 2008(^2). However:
- For statistics that are wholly Scottish devolved statistics, the Pre-release Access to Official Statistics (Scotland) Order 2008(^3) applies;
- For statistics that are wholly Welsh devolved statistics, the Pre-release Access to Official Statistics (Wales) Order 2009(^4) applies;
- For statistics that are wholly Northern Irish devolved statistics, the Pre-release Access to Official Statistics Order (Northern Ireland) 2009(^5) applies.
______________________________________________________________________
(^1) [https://www.statisticsauthority.gov.uk/code-of-practice/](https://www.statisticsauthority.gov.uk/code-of-practice/) (^2) [http://www.legislation.gov.uk/uksi/2008/2998/contents/made](http://www.legislation.gov.uk/uksi/2008/2998/contents/made) (^3) [http://www.legislation.gov.uk/ssi/2008/399/contents/made](http://www.legislation.gov.uk/ssi/2008/399/contents/made) (^4) [http://www.legislation.gov.uk/wsi/2009/2818/contents/made](http://www.legislation.gov.uk/wsi/2009/2818/contents/made) (^5) [http://www.legislation.gov.uk/nisr/2009/71/contents/made](http://www.legislation.gov.uk/nisr/2009/71/contents/made) These statutory rules primarily allow for giving relevant ministers, and a limited number of designated officials, access to official statistics once they have attained their final form prior to publication.
The arrangements are designed to ensure that such Pre-release access (PRA) is justified, limited, controlled and publicised and it complies with statutory requirements. Their purpose is to maintain public confidence in the integrity of official statistics while also allowing ministers to comment immediately on the implications of statistics covering policy or operational areas for which they are responsible.
This compliance statement applies directly to producers of Official Statistics in the Forestry Commission (including Forest Research) and is based on the arrangements that the Department for the Environment, Food and Rural Affairs (Defra) have in place.
Scope
- The relevant ‘Order’ is statutory and applies to all regular or ad hoc Official statistics which are First release statistics (or compendia releases that include first releases) and in their Final form.
- The ‘Order’ does not apply to Management information, administrative data or other statistics not in their final form. These are covered by the ‘Code’. The criteria for identification of official statistics are set out in National Statistician’s Guidance on Management Information and Official Statistics, available at https://gss.civilservice.gov.uk/policy-store/ns-guidance-management-information-official-statistics/.
- Except for those granted pre-release access under the relevant ‘Order’, access prior to publication is limited to those involved in the production of statistics, preparation of the release, quality assurance and for operational purposes such as publication [Code, practice T3.3]. • There apart, pre-release access is only to be granted to a small number of eligible recipients where it is deemed necessary to enable individuals (e.g. Ministers or Chief Executives) to be able to respond or take action at the time of publication.
General principles We aim to keep levels of pre-release access to the minimum allowed under the legislation in order to maintain public trust in the independence of the statistics we produce.
The principles we operate to are:
• Access to official statistics prior to publication is restricted to: o Named individuals within statistics and publishing teams; Quality Assurance providers [T3.3]. o Documented individual granted pre-release under the ‘Order’ [T3.4].
• All individuals with access to statistics prior to publication are clear about the point at which they will be released publicly and when they are in ‘final form’; their own role; how to prevent disclosure during the access period [T3.1, T3.5].
• The number of statistics to which pre-release access is granted prior to publication, is limited to either: o Releases where there is an expectation of high levels of media interest and hence the likelihood of requests for rapid responses to queries. o Releases that are the subject of a ministerial submission. o Releases that include statistics from or with high profile interest to other Departments, bodies or Devolved Administrations.
• Strict limits are placed on the minimum number of persons necessary to allow Ministers to either: o Provide responses to questions, or make statements about those statistics at, or shortly after, their time of publication. Take action just before, at, or shortly after the time of publication.
- Pre-release access is only granted:
- Where denying it would significantly impede the response.
- Only in circumstances where the public benefit would outweigh the detriment to public trust in official statistics likely to result from granting access.
- Access can be granted to all or part of a release as considered necessary.
- We are open about breaches of the pre-release access rules.
- Sanctions may be applied where conditions of access are breached.
**Period of Access**
The maximum period for pre-release access is governed by the relevant ‘Order’. For the majority of the organisation’s official statistics, this is a maximum of 24 hours before their public release on the following day – usually at 09.30. For outputs containing wholly Scottish or wholly Welsh statistics, the maximum period is 5 working days.
**Conditions of access**
- Pre-release access is confined to:
- Those who meet criteria which defines an ‘eligible recipient’.
- Statistics releases that meet the criteria set out in the above section.
- Pre-release access recipients must keep the statistics secure and under embargo prior to public release and must not:
- Disclose the statistics or any part of a publication containing those statistics to any person not listed as a pre-release recipient.
- Provide any indication of the size or direction of any trend revealed by the statistics.
- Use the access for personal gain, or taking any action for political advantage. Exploit the access to change or compromise the content, presentation, or timing of publication of official statistics.
- Recipients may share statistics prior to public release with someone who provides them with administrative support that does not include providing the recipient with advice.
**Special circumstances**
Pre-release access may also be granted under special provisions in the ‘Order’. The number of people granted access is strictly limited. However, access may be granted for more than 24 hours in certain circumstances but must be kept to the minimum necessary. For example:
- Access may be given to the compilers of complementary reports due to be published at the same time as, or shortly after the statistics so that they can incorporate the latest available figures. Such access may be longer than 24 hours.
- Access can be granted to permit the UK to comply with obligations to provide data to international organisations, for longer than 24 hours if necessary.
- In exceptional circumstances, journalists may be given access to particular complex compendia or other releases in order to give them time to absorb and understand the significance of a given release. Such access will never exceed 24 hours.
- In exceptional circumstances, pre-release access may be extended to someone who is not an ‘eligible person’ as defined in the ‘Order’. In which case the UK Statistics Authority will be informed and the reason for such exceptional access published.
In each case, such access will be documented in the published FC pre-release access list and in relevant release. Breaches of conditions In the event that we are aware that a lapse in release practices has occurred that has led to a breach of the conditions of access described in this statement the lead Statistician will notify the Defra group Head of Profession and the National Statistician; take action to prevent a recurrence; and provide the Authority with a written explanation using the Authority’s published procedures.
Sanctions Access conditions are strictly applied. When considering requests for pre-release access, account is taken of any failure by that person, in relation to a previous grant of pre-release access. In some instances being granted pre-release access will be dependent on recipients signing a declaration to confirm they understand and will uphold the rules. In the most serious cases of a breach of pre-release access conditions, future access will be denied.
Statutory responsibilities In line with requirements in the ‘Order’ (paragraph 9), we will ensure that we maintain (on the Forest Research website at https://www.forestresearch.gov.uk/tools-and-resources/statistics/):
- A list of all official statistics to which pre-release access has been granted.
- At the same time as or prior to the publication of each statistic subject to pre-release access, a list of the job title and organisation of persons granted access to that statistic on that occasion.
- This compliance statement, which sets out our operational arrangements.
We also maintain accurate records of all those who have access to official statistics before releases are finalised [Code T3.3]. Authority
This statement has been drawn up by the Forestry Commission’s Lead Statistician and is based on the guidance produced by Defra Group’s Head of Profession for Statistics. The Lead Statistician is responsible for ensuring the day-to-day implementation of these arrangements in the Forestry Commission. The Head of Profession is responsible for providing professional oversight and guidance to the Lead Statistician.
Any questions relating to the application of these arrangements to specific releases should be addressed to the statistician responsible for the issue of the release (as shown on the release itself) in the first instance.
Any enquiries about the contents of this statement should be directed to [email protected].
Sheila Ward FC Lead Statistician Forest Research 17 June 2019 Annex A: Definitions
Eligible recipients The Pre-Release Access to Official Statistics Order 2008 (the Order) describes an eligible recipient as:
a. A Minister (para 3(2) (a)-(g))
b. a person who, in the opinion of the Person responsible, is otherwise accountable to the public for the formulation or development of government policy or for the delivery of public services to which the statistic has direct relevance (for example the Chief Executive of an agency or other arm’s length body, or a senior official with direct policy responsibility) such as the Chief Medical Officer (para 3(2)(h)); or
c. An adviser to a Minister or accountable person (para 3(2)(i)).
Therefore an “eligible person” under c. above may be:
- Lead policy officials, where actively involved with preparing advice or a response, for each area covered by the published statistics requiring a response or action
- Lead statisticians for each area covered, if not already involved in the production of the statistics
- Expert advisers where required (for example, on medical matters)
- Designated press officers for each area covered
- Private secretaries in the relevant private office for each area covered
- Designated special advisers or equivalent, if needed. Final form Point when official statistics and commentary have been subjected to quality assurance and have been signed off by the responsible statistician as being ready for publication.
First release statistics Statistics being published for the first time
Head of Profession for Statistics Heads of Profession for Statistics are responsible for overseeing their own organisation’s statistical functions, and meeting their organisation’s statistical needs. They are also responsible for implementing the provisions set out in statistical legislation, both within their own organisation and more generally across the UK statistical system. Heads of Profession play a key role in building trust in official statistics.
Lead official/ Lead statistician The senior statistician or analyst in an arm’s length body who has been given the responsibility to lead on professional matters by the organisation and liaises with the Head of Profession for Statistics in a sponsoring department.
Official statistics Official statistics are statistics published by a Crown body, or a body listed within an Official Statistics Order.
National Statistics are a subset of Official Statistics certified as compliant with the Code by the UK Statistics Authority.
Experimental statistics are a subset of newly developed or innovative official statistics that are undergoing evaluation. Person responsible
The Order states that the ‘Person Responsible’, in relation to any official statistics is as defined in Section 67 of the Statistics and Registration Service Act 2007:
a. in the case of official statistics produced by the Board, the National Statistician,
b. in the case of official statistics produced by a government department, the Minister in charge of the department, and
c. in any other case, the person producing the statistics.
In practice, the Head of Profession undertakes the central role for determining pre-release access.
Pre-release access
Pre-release access is a privilege not a right and is determined by the Head of Profession or the designated Lead Official in and Arms’ length Body. It is defined as the practice of granting access to official statistics ‘in their final form’ in advance of publication to specific individuals (eligible recipients) not involved in production processes, i.e.:
- those having access to the statistics throughout the processes of production and publication and for operational purposes;
- those granted access to the statistics before they are in their final form for quality assurance purposes only.
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c077e36def73c3024566f7a00e751fe4250d4264 | Assessing the slip resistance of flooring A technical information sheet
Introduction
This technical information sheet looks at a number of test methods for assessing floor slip resistance and describes those HSE and the Health and Safety Laboratory (HSL) use in more detail. It is aimed at employers who need to perform accurate measurements of floor slipperiness, such as manufacturers and research and testing bodies. It will also help employers and other dutyholders assess slip risks in workplaces by helping them interpret flooring manufacturers’ test data. This should allow them to make an informed decision when they choose new floors or monitor existing floors.
Background
Slips and trips are the most common cause of injury at work. On average, they cause over a third of all major injuries and over 40% of all reported injuries to members of the public. HSE statistics suggest that most of these accidents are slips, most of which happen when floor surfaces are contaminated (water, talc, grease, etc).
Research by HSL for HSE has shown that a combination of factors can contribute to slip accidents. HSL has developed a slip potential model, which identifies the important factors contributing to a slip (see Figure 1).
Figure 1 Slip potential model The information sheet describes methods of assessing the slipperiness of floors. It aims to give employers enough information to select a method to test the slipperiness of the floor and interpret the results.
Assessment of slipperiness: The HSE approach
The Workplace (Health, Safety and Welfare) Regulations 1992 require floors to be suitable, in good condition and free from obstructions. People must be able to move around safely.
Research carried out by HSL, in conjunction with the UK Slip Resistance Group (UKSRG) and the British Standards Institution, has shown that commercially available, portable scientific test instruments can accurately assess the slipperiness of flooring materials.
HSL has developed a reliable and robust test method using these instruments to assess floor surface slipperiness. The method has been used as the basis of HSE and local authority advice and enforcement action.
The methodology is based on using two instruments:
- a pendulum, used in the pendulum coefficient of friction (CoF) test (HSE’s preferred method of slipperiness assessment, see Figure 2);
- a surface microroughness meter (see Figure 3).
Figure 2 The pendulum CoF test
Figure 3 Surface microroughness meters (left to right: Mitutoyo Surftest SJ201P, Surtronic Duo and Surtronic 25) This methodology is ideally suited to both laboratory-based assessment, and for use on installed floors.
**Pendulum**
The pendulum CoF test (also known as the portable skid resistance tester, the British pendulum, and the TRRL pendulum, see Figure 2) is the subject of a British Standard, BS 7976: Parts1-3, 2002.²
The method is based on a swinging, imitation heel (using a standardised rubber soling sample), which sweeps over a set area of flooring in a controlled manner. The slipperiness of the flooring has a direct and measurable effect on the pendulum test value (PTV) given.
The preparation of the standard rubber sliders is detailed in BS 7976: Parts1-3, 2002 and the UKSRG guidelines.³ There is a small difference between the two methods of slider preparation, and in certain limited situations the two methods may give slightly different results. HSE and the UKSRG believe the changes in the latest version of the UKSRG guidelines (2011) give the most useful results.
Research has confirmed the pendulum to be a reliable and accurate test, so HSE has adopted it as its standard test method for assessing floor slipperiness in both dry and contaminated conditions. However, to use it reliably, it needs to be operated and interpreted by a suitably trained and competent person. For profiled floors, several tests in different directions may be required to obtain a good understanding of profiled surfaces. So, only an experienced operator should assess these types of floors.
**Interpretation of pendulum results**
Pendulum results should be interpreted using the information reproduced in Table 1 (from UKSRG, 2011).
**Table 1** Slip potential classification, based on pendulum test values (PTV)
| Slip potential classification | PTV | |------------------------------|------| | High slip potential | 0-24 | | Moderate slip potential | 25-35| | Low slip potential | 36+ |
**Practical considerations**
Using Slider 96 rubber gives enough information for assessing slipperiness for shod pedestrians. For assessing barefoot areas, use Slider 55 rubber and for profiled flooring it may be helpful to use both slider materials. The pendulum test equipment is large and heavy, so consider the manual handing of the equipment carefully for testing in the field.
**Surface microroughness**
An indication of slipperiness in water-contaminated conditions may be simply obtained by measuring the surface roughness of flooring materials. Roughness measurements may also be used to monitor changes in floor surface characteristics, such as wear. Research has shown that measuring the Rz parameter allows slipperiness to be predicted for a range of common materials. Rz is a measure of total surface roughness, calculated as the mean of several peak-to-valley measurements.
**Interpretation of surface roughness**
When surface microroughness data is used to supplement pendulum test data, the roughness results should be interpreted using the information reproduced in Table 2 (from UKSRG, 2011). Where only roughness data is available, use it in conjunction with the Slips Assessment Tool (SAT) detailed below.
**Table 2** Slip potential classification, based on Rz microroughness values (applicable for water-wet pedestrian areas)
| Rz surface roughness | Slip potential | |----------------------|----------------| | Below 10 µm | High | | 10-20 µm | Moderate | | 20 + µm | Low |
**Practical considerations:**
**Roughness meters**
Research has shown that the Rz roughness parameter gives a good indication of floor slipperiness in water-contaminated conditions. The measurement of Rz using a hand-held meter is simple and quick. Roughness meters (see Figure 3) are unsuitable for use on carpet, undulating or very rough floors.
The figures quoted in Table 2 relate to floor surface slipperiness in water-contaminated conditions. If there are other contaminants, different levels of roughness will be needed to lower slip potential. As a general rule, a higher level of surface roughness is needed to maintain slip resistance with a more viscous (thicker) contaminant. Slips assessment tool (SAT)
HSE and HSL have produced a PC-based software package to help users to carry out a slip risk assessment of level pedestrian walkway surfaces. SAT prompts the user to collect surface microroughness data from the test area, using a hand-held meter. SAT supplements the surface microroughness data (Rz) with other relevant information from the pedestrian slip potential model. This includes the causes of floor surface contamination, the regimes used to clean the floor surface (both in terms of their effectiveness and frequency), footwear types worn in the area, along with associated human factors and environmental factors. On completion, SAT supplies a slip risk classification; this indicates the potential for a slip. SAT is designed to help in the decision-making process when considering the risk of slipping in a defined area, and can be used iteratively to show the influence of different control measures. However, do not rely on it when considering the performance of just the flooring; in this instance a suitable CoF test should be used. The SAT software can be downloaded free at www.hse.gov.uk/slips/sat/index.htm.
The HSL ramp test
The HSL ramp test (Figure 4) is designed to simulate the conditions commonly encountered in typical workplace slip accidents. This uses clean water as the contaminant and footwear with a standardised soling material. Barefoot testing may also be undertaken. The test method involves using test subjects who walk forwards and backwards over a contaminated flooring sample. The inclination of the sample is increased gradually until the test subject slips. The average angle of inclination at which slip occurs is used to calculate the CoF of the flooring. The CoF measured relates to the flooring used on a level surface. It is possible to assess bespoke combinations of footwear, flooring and contamination, relating to specific environments, using this method. HSL also uses the ramp to assess the slipperiness of footwear.
Figure 4 The UKSRG ramp CoF test Other ramp tests
Many European flooring manufacturers use ramp-type tests to classify the slipperiness of their products before sale. Such tests are generally carried out using German National Standard test methods (DIN 51097:1992 and DIN 51130:2004).
DIN 51097 uses barefoot operators with a soap solution as the contaminant, and DIN 51130 uses heavily-cleated EN:ISO 20345 safety boots with motor oil contamination. HSE has reservations about these test methods, as neither uses contaminants that are representative of those commonly found in workplaces and the way the results are reported and applied (see below) is a cause for concern.
Floor surface materials are often classified on the basis of the DIN standards. The classification schemes outlined in DIN 51130 (Table 3) and DIN 51097 (Table 4) have led to some confusion, sometimes resulting in the wrong floor surfaces being installed.
Table 3 DIN 51130 R-Value slipperiness classification
| Classification | R9 | R10 | R11 | R12 | R13 | |----------------|----|-----|-----|-----|-----| | Slip angle (º) | 6-10 | 10-19 | 19-27 | 27-35 | > 35 |
Table 4 DIN 51097 slipperiness classification
| Classification | A | B | C | |----------------|---|---|---| | Slip angle (º) | 12-17 | 18-23 | > 24 |
The R scale runs from R9 to R13, where R9 is slippery when wet, and R13 the least slippery. Floor surfaces that are classified by the DIN 51130 standard as R9 (or in some instances R10) will be slippery when used in wet or greasy conditions. Further problems may arise from the wide range of CoF within a given classification, for example R10 covers a CoF range from 0.18 to 0.34, which represents a very wide range of slip potential. Floor surfaces that are classified by the DIN 51097 standard as A (and in many instances B) will be slippery when wet.
Other tests
The instruments that have been dubbed ‘sled tests’ involve a self-powered trolley that drags itself across the floor surface. These tests do not recreate the conditions of pedestrian gait which give rise to most slip accidents. Data from such machines is unlikely to be relevant to pedestrian slipping in contaminated conditions.
The SlipAlert test involves a trolley rolling down a ramp and skidding across the floor surface. The results show good agreement with the pendulum when a properly prepared Slider 96 rubber is used. A large test area is required and as the test slider travels a significant distance over the floor, it measures the average slip resistance of the area, so small areas of slippery floor may not be identified. The device does give a good visual indication of changes in slip resistance, such as from dry to wet, and can be particularly useful for staff training around cleaning. Interpretation of manufacturers’ data
Most slip resistance information provided by flooring manufacturers is produced from as-supplied products (ie ex-factory). The slipperiness of flooring materials can change significantly due to the installation process, eg due to grouting, cleaning, burnishing or polishing; and after short periods of use. Inappropriate maintenance or longer-term wear also change the slip resistance of flooring. Data quoted simply as CoF should be viewed with uncertainty, as the type of CoF test used will critically affect the validity of the data.
The test data needed to characterise a floor should relate to the floor when finished for its intended use and with any contamination present in normal use.
References and further reading
References
1 Workplace health, safety and welfare. Workplace (Health, Safety and Welfare) Regulations 1992. Approved Code of Practice L24 HSE Books 1992 ISBN 978 0 7176 0413 5 www.hse.gov.uk/pubns/books/L24.htm
2 BS 7976-1: 2002 Pendulum testers. Specification British Standards Institution 2002
BS 7976-2: 2002 Pendulum testers. Method of operation British Standards Institution 2002
BS 7976-3: 2002 Pendulum testers. Method of Calibration British Standards Institution 2002
3 The assessment of floor slip resistance Issue 4.0 United Kingdom Slip Resistance Group 2011
4 DIN 51097: 1992 Testing of floor coverings; determination of the anti-slip properties; wet-loaded barefoot areas; walking method; ramp test German National Standard 1992
5 DIN 51130: 2004 Testing of floor coverings; determination of the anti-slip properties; workrooms and fields of activities with slip danger; walking method; ramp test German National Standard 2004
6 Evaluation of the Kirchberg Rolling Slider and SlipAlert Slip Resistance Meters Available at www.hse.gov.uk/research/hsl_pdf/2006/hsl0665.pdf Further reading
Safer surfaces to walk on, reducing the risk of slipping CIRIA C652 2006
More information about slips and trips can be found at www.hse.gov.uk/slips.
Further information
For information about health and safety, or to report inconsistencies or inaccuracies in this guidance, visit www.hse.gov.uk/. You can view HSE guidance online and order priced publications from the website. HSE priced publications are also available from bookshops.
British Standards can be obtained in PDF or hard copy formats from BSI: http://shop.bsigroup.com or by contacting BSI Customer Services for hard copies only Tel: 020 8996 9001 email: [email protected].
This document contains notes on good practice which are not compulsory but which you may find helpful in considering what you need to do.
This document is available at www.hse.gov.uk/pubns/geis2.pdf.
© Crown copyright If you wish to reuse this information visit www.hse.gov.uk/copyright.htm for details. First published 05/12.
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f0141f7363812d0773861b19fe43529178875df0 | GENDER PAY GAP 2010 Gender Pay Gap
When the Equality Act 2010 came into force, it contained a voluntary requirement under Section 78, for employers to release gender pay gap information. We have calculated the gender pay gap for HMRC by expressing women’s pay as a percentage of men's pay. This shows the overall gender pay gap for HMRC is 22% in favour of men.
In common with most equal pay reviews, we have adopted a practical approach to calculating pay gap by expressing gender pay as a percentage of the comparator's pay.
The table below shows the median salary of women, calculated as a percentage of men's median salary. The percentage of the gender pay gap is 78%, which means women are paid 78% of the salary received by men.
Table 1: Overall Gender Pay Gap
| Grades | Median Salary Women | Median Salary Men | Index (Men = 100%) | |--------|---------------------|-------------------|-------------------| | AA - G6 | 19,474 | 24,821 | 78% |
This straight comparison of women's and men's pay in HMRC does not provide a meaningful comparison however, as it does not take into account the HMRC grade structure, the different ratio of women and men within that grade structure and the different national and London pay scales for each grade. When these elements are taken into account and like for like comparisons are made, then the gender pay gap, where it exists, is considerably less than 22%.
Gender pay gap by grade and pay scale area
We have produced two tables to make a more meaningful gender pay comparison by comparing the median gender pay by grade and London and national pay areas. As with the overall gender pay gap, we have shown women's pay as a percentage of men's pay. Where the percentage rate for women is less than 100%, men have the lead while over 100% means that women have the lead. To analyse the results, we have used the Equality and Human Rights Commission's definition of a significant pay gap, which is a gap of 5% or more, or patterns of differences of 3% to decide where further investigation and explanation is required.
Table 2 compares women's and men's London median pay. It shows there are no gender pay differences from Administrative Assistant to Senior Officer grades. Only at Grade 7 and Grade 6 are there differences. In both cases length of service is probably a factor because when this is taken into account, there are no significant differences between women's and men's salaries – see table 4.
Table 2: Median London salaries by grade and gender
| Grade | Women | Men | Index (Men = 100%) | |-----------|-------|-------|-------------------| | Admin Assistant | 19,965 | 19,965 | 100% | | Assistant Officer | 23,892 | 23,892 | 100% | | Officer | 30,331 | 30,331 | 100% | | Higher Officer | 37,105 | 37,105 | 100% | | Senior Officer | 42,856 | 42,856 | 100% | | Grade 7 | 54,921 | 56,407 | 97% | | Grade 6 | 70,189 | 74,209 | 95% | Table 3 compares women’s and men’s national median pay. It shows there are small gender pay differences at Assistant Officer and Higher Officer grade. As with London there are also differences at Grade 7 and Grade 6 but once again length of service is probably a factor, because when this is taken into account there are no significant differences between women’s and men’s salaries – see table 4.
Table 3: Median National salaries by grade and gender
| Grade | Women | Men | Index (Men = 100%) | |----------------|-------|------|-------------------| | Admin Assistant| 15,727| 15,727| 100% | | Assistant Officer| 19,474| 18,851| 103% | | Officer | 26,227| 26,227| 100% | | Higher Officer | 32,303| 32,622| 99% | | Senior Officer | 39,643| 39,643| 100% | | Grade 7 | 49,154| 51,426| 96% | | Grade 6 | 63,220| 66,657| 95% |
Length of service
Table 4 below shows the median women’s salaries as a percentage of men’s salaries after length of service at Grade 7 and Grade 6 has been taken into account. They show that once length of service has been taken into account women’s and men’s salaries do not differ significantly.
Table 4: Median salary comparison by length of service
| Years of Service | G7 London | G7 National | G6 London | G6 National | G7 London | G7 National | G6 London | G6 National | |------------------|-----------|-------------|-----------|-------------|-----------|-------------|-----------|-------------| | 0 | 100% | 100% | 100% | 96% | 55 | 146 | 48 | 40 | | 1 | 100% | 100% | 99% | 102% | 147 | 218 | 61 | 89 | | 2 | 100% | 100% | 99% | 104% | 91 | 179 | 49 | 70 | | 3 | 101% | 99% | 97% | 99% | 63 | 138 | 30 | 57 | | 4 | 100% | 99% | 98% | 99% | 83 | 144 | 48 | 47 | | 5 | 100% | 100% | 101% | 100% | 54 | 111 | 28 | 37 | | 6 | 100% | 100% | 101% | 100% | 54 | 85 | 41 | 56 | | 7 | 100% | 102% | 99% | 100% | 62 | 96 | 37 | 51 | | 8 | 100% | 100% | 100% | 100% | 33 | 84 | 46 | 42 | | 9 | 100% | 100% | 100% | 100% | 26 | 47 | 29 | 30 | | 10 | 100% | 100% | 100% | 100% | 141 | 376 | 109 | 143 |
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c2f385eec3987586c058f4c10965953c8925c3df | Gender Pay Gap
Definition of gender pay gap
Gender pay reporting legislation requires employers with 250 or more employees to publish statutory calculations every year showing how large the pay gap is between their male and female employees and is expressed as a percentage. It differs from equal pay, which is concerned with pay differences between men and women who carry out the same jobs, similar jobs, or work of equal value.
Our data
1. Gender pay gap
Based on a snapshot date of 31 March 2017, our mean gender pay gap is 1.09% in favour of men. Our median gender pay gap is 1.98% in favour of women. In benchmarking terms, the median pay gap for the UK is 18.1% in favour of men and public sector 18.3% in favour of men. The private sector measures 24.5% in favour of men (ONS, 2016).
2. Gender distribution by salary quartiles
The lower and upper quartile shows the gap to be 16% and 6.66% in favour of men respectively and the middle quartiles 12% and 6.66% in favour of women respectively. 3. Bonus gap
The proportion of men and women receiving a bonus payment is 22.11% and 30.30% respectively with a difference of 8.19%. The mean bonus amount is in favour of women by 0.65%. The insignificant gap would suggest that our performance management strategy is fair and transparent.
Action we are taking
The main factors we believe influence this are the availability of agile flexible working patterns (particularly those that do not have an impact on pay such as compressed hours and the ability to work from home) which are popular with those returning from maternity or with caring responsibilities. In addition, we operate ‘blind recruitment’ at the application stage and offer all roles with the option of flexible working to ensure an inclusive recruitment experience.
In terms of performance management, we hold moderation meetings with HR present to guard against discrimination or favouritism and that all markings are fair and consistent. We are continuing to develop our diversity and inclusion training and awareness weeks and offer wellbeing initiatives throughout the year. We also provide an Employee Assistance Programme that is frequently used by staff for advice on a number of topics. Mentoring and career coaching are areas we are looking to increase uptake in and this will benefit both genders.
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ac4013127a2932d1352eff1868627a66cf9c24b2 | In 2017, the Government introduced world-leading legislation that made it statutory for organisations with 250 or more employees to report annually on their gender pay gap. Government departments are covered by the Equality Act 2010 (Specific Duties and Public Authorities) Regulations 2017 that came into force on 31 March 2017. These regulations underpin the Public Sector Equality Duty and require relevant organisations to publish their gender pay gap by 30 March annually. This includes the mean and median gender pay gaps; the mean and median gender bonus gaps; the proportion of men and women who received bonuses; and the proportions of male and female employees in each pay quartile.
The gender pay gap shows the difference in the average pay between all men and women in a workforce. If a workforce has a particularly high gender pay gap, this can indicate there may be a number of issues to deal with, and the individual calculations may help to identify what those issues are.
The gender pay gap is different to equal pay. Equal pay deals with the pay differences between men and women who carry out the same jobs, similar jobs or work of equal value. It is unlawful to pay people unequally because they are a man or a woman.
### Difference in hourly rate
Women’s mean hourly rate is **0.80% lower** than men’s
Women’s median hourly rate is **4.94% higher** than men’s
### Proportion of women in each pay quartile
| Quartile | Women | Men | |---------------------------|-------|-----| | **Top quartile (highest paid)** | 45.74% | | | **Upper middle quartile** | 58.46% | | Who received bonus pay
21.54% of women 22.48% of men
Difference in bonus pay
Women’s mean bonus pay is 10.64% higher than men’s Women’s median bonus pay is 0% lower than men’s
What our data shows
The mean difference in hourly rate suggests that we have a gender pay gap in favour of men that is near zero and this is virtually unchanged on last year. The median difference indicates a larger gap in favour of women, and this has increased by 2.96% on last year.
The proportion of women in each quartile helps to explain this. There are more men in the lowest quartile and there are more women in both the middle quartiles. This has the effect of increasing the middle or median value for women. Our lowest grade, in which roles are generally more physical in nature, is mostly undertaken by men.
The mean bonus pay for women is higher than for men because a bonus was paid to a member of the Senior Civil Service. If this bonus were not paid, the mean difference in bonus pay would be 0%.
Action we are taking
The main factors we believe influence our relatively low gender pay gap are the availability of flexible working patterns, in particular those that do not have an impact on pay such as compressed hours and the ability to work from home. These are popular with those returning from maternity or with caring responsibilities. In addition, we operate 'blind recruitment' at the application stage and offer all roles with the option of flexible working to ensure an inclusive recruitment experience.
We hold moderation meetings to guard against discrimination or favouritism and to help ensure all markings are fair and consistent. We are continuing to develop our diversity and inclusion training and awareness weeks and offer wellbeing initiatives throughout the year. Our Employee Assistance Programme, which is well used by our employees, gives advice and support on a range of issues and provides a professional counselling service.
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60e1802663c6b3b56042f9d60d5e6d119d5647ae | Gender Pay Gap Report Reporting Year 2019/2020
15 December 2020
# Contents
| Section | Page | |----------------------------------------------|------| | Gender Pay Gap | 3 | | What is Gender Pay Gap Reporting? | 3 | | The ORR gender pay gap | 4 | | Review of results | 4 | | Bonus payments | 5 | | Action to reduce the gender pay gap | 6 | | Annex 1 | 6 | | Annex 2 | 11 | Gender Pay Gap
What is Gender Pay Gap Reporting?
From 2017, all organisations employing 250 or more employees have been required to publicly report on their gender pay gap. The gender pay gap uses the hourly rates of men and women taken at a specific date (the ‘snapshot date’) and shows the percentage difference in earnings across the organisation between men and women.
Reporting specifically requires: the mean and median gender pay gaps; the mean and median gender bonus gaps; the proportion of men and women who received bonuses, and the number of men and women according to quartile pay bands. The ORR has a snapshot date of 31 March 2020.
This report analyses our gender pay gap figures in more detail, makes comparisons with our previous reported data where relevant, and sets out what we are doing to close the gender pay gap. The ORR gender pay gap
The data presented is a snapshot from 31 March 2020 covering 328 employees, of which 60.4% are male and 39.6% are female. The data shows that the ORR has a mean gender pay gap of 17.9% and a median gender pay gap of 17.4%.
| | Female pay against male is: | |--------------------------|-----------------------------| | | 2020 | 2019 | 2018 | 2017 | | Mean pay gap – hourly rate| 17.9%| 18.1%| 18.3%| 12.8%| | Median pay gap – hourly rate| 17.4%| 23.8%| 25.1%| 27.2%| | Mean pay gap – bonus payments| 7.2%| 29.0%| -22.9%| 19.3%| | Median pay gap – bonus payments| 25.0%| 15.1%| 0.0%| 9.6%|
Review of results
We are confident that people at ORR are paid equally for doing equivalent roles, taking into account skills, experience, performance and competence. However, our gender pay gap reflects the fact that we have more male employees in middle and senior positions and proportionately more female employees in junior positions. Both the mean and median gender pay gap has improved during the last two years.
Pay Quartiles are where an organisation is split into four equally sized chunks of employees based on their hourly earnings - and then the gender split is recorded. Using the quartile percentages our lower quartile (up to £20.21 per hour) is made up of 57.3% women while the upper quartile (from £34.35 per hour) is made up of 28.4% women. Some roles at middle to high grades, with correspondingly higher salaries, are traditionally male dominated, for example our Inspectors, and some lower graded roles such as administration roles, have been typically dominated by females.
Any actions to reduce any gender pay gap will take significant time to take effect, particularly where overall pay increases are low and any differential in favour of those in the lower quartile are small, however we are committed to reducing the Gender Pay Gap and further actions are outlined later in this report.
**Bonus payments**
The bonus pay gap figure is calculated on actual bonus payments received in the pay period up to 2020. 22.6% of females who received a bonus work part time (and therefore a pro rata bonus payment) compared to 9.2% of men, increasing the gap in favour of men.
People at all levels in ORR are eligible for performance related payments. People who have delivered an outstanding performance across the whole of a reporting year may receive a one off payment at the end of the year, whilst people who have made a special one-off contribution during the year may receive an in year award at any point during the year.
The proportion of men and women in receipt of a bonus payment has remained the same over the last 3 years. The mean pay gap is 7.2%, whilst the median pay gap is 25%. Out of the 198 male population, 71.7% received a bonus whilst out of the total female population of 130, 71.5% received a bonus this year. Action to reduce the gender pay gap
Since 2018 there have been reductions to both the mean and median hourly pay gap.
ORR continues to build on the actions outlined in the 2019 report. Last year we sought to achieve a 50/50 gender split outcome for feeder grades for Inspector roles. We also had several work streams in our 2018/19 diversity and inclusion programme to tackle the under-representation of certain groups, including women, in senior management positions. ORR also ensures that interview panel members undertake unconscious bias training and that wherever possible all interview panels are gender mixed.
ORR will continue to review these initiatives as part of its Diversity & Inclusion plan, working closely with our Diversity and Inclusion Network and SCS Diversity Champion.
It is recognised that the impact of actions to reduce the gap will take time, however three areas continue to be a priority for action to address the gender balance in our organisation.
Recruitment
In the period covered in this report the ORR surpassed its goal in achieving 50/50 gender split outcome for feeder grades for Inspector roles, 60% of successful applicants were women. We will continue to explore how to attract underrepresented groups into our organisation. Additionally, we have committed to the following:
- Increase in the number of vacancies advertised as available on flexible working, part-time, job share basis and the option to be based in any of ORR’s six office locations across the country;
- Offer flexible employment offer for all employees allowing regional and home working supported by mobile technology;
- All people involved in recruitment to undertake unconscious bias training;
- A continuation of ‘blind’ recruitment where all personal information including gender is redacted and not visible to those making decisions until the interview stage; and
- Ensure mixed gender selection panels are in place for interview panels wherever possible. Career pathways and performance
All employees will continue to be offered access to various talent programmes, aimed at supporting the right people into the right roles. In addition, ORR supports and promotes ‘Positive Action Pathways’ programme for all grades, which aims to tackle the under-representation of certain groups, including women, in middle and senior management positions. In parallel, ORR reviews succession planning annually, which provides a source of data that helps monitor diversity with a view to informing development opportunities. Annex 1
ORR has 326 employees, 60.4% of whom are male and 39.6% female (compared to 46.1% and 53.9% respectively in the whole Civil Service).
The proportion of female employees in ORR has increased by 2 percentage points over the last five years. 20% (65) of employees work part-time hours or a non-standard working pattern. Many staff take advantage of the ability to work from home, to help optimise their work-life balance.
Just 18% (59) of employees declared a minority ethnic background, compared to 12.7% in the Civil Service as a whole. 5% (17) of employees have reported a disability, which is lower than the Civil Service average of 11.7%.
The majority of colleagues are white (69%), whilst 18% are non-white. Over 60% of colleagues are aged 40 or over. Employees by religion
- Christian: 24.8% (2020), 23.8% (2019)
- Hindu: 0.9% (2020), 1.3% (2019)
- Jewish: 0.3% (2020), 0.3% (2019)
- Muslim: 1.5% (2020), 1.9% (2019)
- None: 27.6% (2020), 24.1% (2019)
- Other: 2.5% (2020), 1.6% (2019)
- Sikh: 1.5% (2020), 0.6% (2019)
- Undeclared: 46.4% (2020), 40.5% (2019) Annex 2
The charts show the protected characteristics for applicants (or those who started the application process) for ORR vacancies, advertised externally between 1 April 2019 and 31 March 2020.
**Gender**
- **2018/19**
- Male: 54%
- Female: 39%
- Prefer not to say: 7%
- Undeclared: 0%
- **2019/20**
- Male: 42%
- Female: 39%
- Prefer not to say: 4%
- Undeclared: 0%
There has been a 2% increase in female applicants this year.
**Disability**
- **2018/19**
- Yes: 6%
- No: 90%
- Prefer not to say: 4%
- Undeclared: 0%
- **2019/20**
- Yes: 6%
- No: 89%
- Prefer not to say: 5%
- Undeclared: 0%
There has been no change in the number of applicants declaring a disability this year.
**Sexual Orientation**
- **2018/19**
- Heterosexual: 89%
- Bisexual: 2%
- Prefer not to say: 10%
- Other: 0%
- **2019/20**
- Heterosexual: 89%
- Bisexual: 3%
- Prefer not to say: 8%
- Other: 1%
There have been minor changes over the last two years.
**Ethnicity**
- **2018/19**
- White: 54%
- Asian: 21%
- Black: 14%
- Mixed: 2%
- Other: 2%
- Prefer not to say: 7%
- Undeclared: 0%
- **2019/20**
- White: 55%
- Asian: 22%
- Black: 13%
- Mixed: 4%
- Other: 1%
- Prefer not to say: 5%
- Undeclared: 0%
There have been minor changes over the last two years. There has been a c70% increase in applicants between 16-24 years.
We continue to attract applicants from different faiths and beliefs.
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76d8fb16cbd3e98cec24ab47126f0d84bbc6d24d | Gender Pay Gap Report
31 March 2019 Introduction
In 2017, the Government introduced world-leading legislation that made it statutory for organisations with 250 or more employees to report annually on their gender pay gap. Government departments are covered by the Equality Act 2010 (Specific Duties and Public Authorities) Regulations 2017 that came into force on 31 March 2017. These regulations underpin the Public Sector Equality Duty and require relevant organisations to publish their gender pay gap by 30 March annually. This includes the mean and median gender pay gaps; the mean and median gender bonus gaps; the proportion of men and women who received bonuses; and the proportions of male and female employees in each pay quartile.
The gender pay gap shows the difference in the average pay between all men and women in a workforce. If a workforce has a particularly high gender pay gap, this can indicate there may be a number of issues to deal with, and the individual calculations may help to identify what those issues are.
The gender pay gap is different to equal pay. Equal pay deals with the pay differences between men and women who carry out the same jobs, similar jobs or work of equal value. It is unlawful to pay people unequally because they are a man or a woman.
Difference in Hourly Rate
Women's mean hourly rate is 2.18% lower than men's Women's median hourly rate is 3.40% lower than men's
Proportion of Women in Each Pay Quartile
Upper (Highest Paid)
| | | |----------|----------| | 44.44% women | 55.56% men |
Upper Middle
| | | |----------|----------| | 53.97% women | 46.03% men |
Lower Middle
| | | |----------|----------| | 59.52% women | 40.48% men |
Lower (Lowest Paid)
| | | |----------|----------| | 43.65% women | 56.35% men | Who Received Bonus Pay
20.1% of women 18.0% of men
Difference in Bonus Pay
Women's mean bonus pay is 0% lower than men's Women's median bonus pay is 0% lower than men's
What Our Data Shows
The mean and median differences in hourly rate suggest that we have a slight gender pay gap in favour of men. This is an increase of 1.38% in the mean from last year, and nearly the opposite in the median, which was in favour of women in 2018. We believe these small variances around zero each year are not a cause for concern however we are not complacent. An equal pay audit conducted by an external company on behalf of The National Archives concluded that we have no structural pay issues that would cause systematic, unjustifiable disparities in pay between males and females.
There has been a slight reduction in the percentage of women in the upper and upper middle quartiles, which probably goes some way to explain the change in difference in hourly rate. Women continue to make up the largest percentage of the middle quartiles, with men predominant in the upper and lower quartiles.
We share our non-consolidated bonus equally among all those who are assessed to be exceeding in their performance review. This means the mean and median bonuses are the same for men and women. A greater percentage of women were awarded a bonus, however this is a difference of only 6 people.
Action We Are Taking
The main factors we believe influence our relatively low gender pay gap are the availability of flexible working patterns, in particular those that do not have an impact on pay such as compressed hours and the ability to work from home. These are popular with those returning from maternity or with caring responsibilities. In addition, we operate 'anonymised recruitment' at the application stage and offer all roles with the option of flexible working to ensure an inclusive recruitment experience.
We hold moderation meetings to guard against discrimination or favouritism and to help ensure all performance markings are fair and consistent. We are continuing to develop our diversity and inclusion training and awareness weeks, including specific training on unconscious bias and inclusive leadership, and offer wellbeing initiatives throughout the year. Our Employee Assistance Programme, which is well used by our employees, gives advice and support on a range of issues and provides a professional counselling service.
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cbe6b7691c204668de6c9c403f9d8d943be5d782 | Gender Pay Gap Report
31 March 2020 Introduction
In 2017, the Government introduced world-leading legislation that made it statutory for organisations with 250 or more employees to report annually on their gender pay gap. Government departments are covered by the Equality Act 2010 (Specific Duties and Public Authorities) Regulations 2017 that came into force on 31 March 2017. These regulations underpin the Public Sector Equality Duty and require relevant organisations to publish their gender pay gap by 30 March annually. This includes the mean and median gender pay gaps; the mean and median gender bonus gaps; the proportion of men and women who received bonuses; and the proportions of male and female employees in each pay quartile.
The gender pay gap shows the difference in the average pay between all men and women in a workforce. If a workforce has a particularly high gender pay gap, this can indicate there may be a number of issues to deal with, and the individual calculations may help to identify what those issues are.
The gender pay gap is different to equal pay. Equal pay deals with the pay differences between men and women who carry out the same jobs, similar jobs or work of equal value. It is unlawful to pay people unequally because they are a man or a woman.
Difference in Hourly Rate
Women’s mean hourly rate is 4.1% lower than men’s Women’s median hourly rate is 7.4% lower than men’s
Proportion of Women in Each Pay Quartile
| Pay Quartile | Women (%) | Men (%) | |--------------------|-----------|---------| | Upper (Highest Paid) | 48.1% | 51.9% | | Upper Middle | 55.0% | 45% | | Lower Middle | 62.3% | 37.7% | | Lower (Lowest Paid) | 48.8% | 51.2% | Who Received Bonus Pay
18.6% of women 17.9% of men
Difference in Bonus Pay
Women's mean bonus pay is 13.5% lower than men's Women's median bonus pay is 0% lower than men's
What Our Data Shows
The mean and median differences in hourly rate suggest that we have a small gender pay gap in favour of men. This is an increase of 1.92% in the mean from last year and 4% in the median.
Women continue to make up the largest percentage of the middle quartiles. There are slightly more men in the upper and lower quartiles, however the balance has improved from last year.
The mean bonus pay for men is higher than for women because a bonus was paid to a member of the Senior Civil Service. If this bonus were not paid, the mean difference in bonus pay would be 0%.
Action We Are Taking
While we are confident that we have no structural issues that would cause systematic, unjustifiable disparities in pay between men and women, we are alive to the fact that the gap has been increasing slightly each year. We have taken steps to address pay issues across The National Archives in financial year 2020/21 with one of the aims being to reduce the likelihood of gender pay disparities from occurring.
Otherwise the main factors we believe influence our relatively low gender pay gap are the availability of flexible working patterns, in particular those that do not have an impact on pay such as compressed hours and the ability to occasionally work from home. These are particularly beneficial for those returning from maternity leave or with caring responsibilities. We've also been looking at ways to further increase our flexible working options and have learned a great deal with many of our employees working from home during the COVID-19 pandemic. In addition, we operate 'anonymised recruitment' at the application stage and offer all roles with the option of flexible working to ensure an inclusive recruitment experience.
We hold moderation meetings to guard against discrimination or favouritism and to help ensure all performance markings are fair and consistent. We are continuing to develop our diversity and inclusion training and awareness weeks, including specific training on unconscious bias and inclusive leadership, and offer wellbeing initiatives throughout the year. Our Employee Assistance Programme, which is well used by our employees, gives advice and support on a range of issues and provides a professional counselling service.
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561900630a806c003c4bda1530c6373c7887aaa3 | Gender Pay Gap Based on Data from 31st March 2019
Background We are required by law to carry out Gender Pay Reporting under the Equality Act 2010 (Specific Duties & public Authorities) Regulations 2017.
This involves carrying out six calculations that show the difference between the average earnings of men and women in our organisation. It will not involve publishing individual employees’ data.
We can use these results to assess:
- the levels of gender equality on our workplace
- the balance of male and female employees at different levels
It is important to note that gender pay reporting is different to equal pay.
- Equal pay deals with the pay difference between men and women who carry out the same jobs, similar jobs or work of equal value. It is unlawful to pay people unequally because they are a man or woman.
- The gender pay gap shows the difference in the average pay between all men and women in a workforce.
Results A snap shot of data was taken from 31st March 2019 and the results are below for the six required calculations.
It should be noted that we have a higher proportion of staff that are female (56%) than male (44%). Female staff from the majority of all four quartiles, from the highest paid to the lowest.
1. **The average gender pay gap as a mean average** A female’s hourly rate is 0.1% lower than a male. The mean hourly rate is £13.88 for male employees and £13.87 for females.
2. **The average gender pay gap as a median average** A female’s hourly rate is 6.3% lower than a male. The mean hourly rate is £12.77 for males employees and £11.97 for females.
3. **The average bonus gender pay gap as a mean average** A female’s hourly rate is 0% lower than a male. The Council does not consider that it pays bonuses in accordance with the criteria set out and therefore reporting on this element is not applicable.
4. **The average bonus gender pay gap as a median average**
A female’s hourly rate is 0% lower than a male.
The Council does not consider that it pays bonuses in accordance with the criteria set out and therefore reporting on this element is not applicable.
5. **The proportion of males receiving a bonus payment and proportion of females receiving a bonus payment**
Males 0%
Females 0%
The Council does not consider that it pays bonuses in accordance with the criteria set out and therefore reporting on this element is not applicable.
6. **The proportion of males and females when divided into four groups ordered from lowest to highest pay**
| | Male | Female | |-------|-------|--------| | Q1 | 49.4% | 50.6% | | Lower | | | | Q2 | 30.5% | 69.5% | | Lower | | | | Middle| | | | Q3 | 48.2% | 51.8% | | Upper | | | | Middle| | | | Q4 | 47.6% | 52.4% | | Upper | | |
There is a higher proportion of women than men in all four of the Council’s pay quartiles. However there is a higher concentration of women in the lower middle quartile, which has contributed to the gender pay gap.
**Next steps**
Blaby District Council is pleased to see that our mean gender pay gap continues to reduce, however we note that the larger median difference suggests an uneven gender distribution across the Council. Blaby District Council will continue to undertake a number of measures in place to support gender pay equality including:
- The Council has made the gender pay gap a key part of our Equalities Objectives and this will continue to be reported. • The use of Gauge job evaluation system which ensures that through its application job grading is gender neutral.
In addition we will: • Further explore the over-representation of females in the lower middle quartile of roles to understand the drivers for this pattern.
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5d5892bee0083833b9fefbb6028bc6ccaf0d23ae | Gender Pay Gap Report
Report for the year 2016-17
December 2017 What is Gender Pay Gap Reporting?
Earlier this year, the Government introduced world-leading legislation that made it statutory for organisations with 250 or more employees to report annually on their gender pay gap. Government departments are covered by the Equality Act 2010 (Specific Duties and Public Authorities) Regulations 2017 which came into force on 31 March 2017. These regulations underpin the Public Sector Equality Duty and require the relevant organisations to publish their gender pay gap data by 30 March 2018 (and then annually), including mean and median gender ordinary pay gaps; the mean and median gender bonus gaps; the proportion of men and women who received bonuses; and the proportions of male and female employees in each pay quartile.
The gender ordinary pay gap shows the difference in the average hourly pay between all men and women in a workforce. A particularly high gender pay gap can indicate a number of issues. Individual calculations may help to identify what those issues are.
The gender pay gap is different to equal pay. Equal pay deals with the pay differences between men and women who carry out the same jobs, similar jobs or work of equal value. It is unlawful to pay people unequally because they are a man or a woman.
The Foreign & Commonwealth Office (FCO) supports the fair treatment and reward of all staff irrespective of gender. Our vision is for all Foreign & Commonwealth Office staff to be valued and able to contribute to the best of their abilities.¹
This report fulfils the Department’s reporting requirements, analyses the figures in more detail and sets out what we are doing to close the gender pay gap in the organisation.
This report includes data for FCO staff as well as staff from our Trading Fund (FCO Services) and Executive Agency (Wilton Park). FCO Services will also publish a separate report for its own staff. In line with legislation, staff are defined as the UK based Civil Service staff that are on our payroll. It does not include data for Local Staff or Contractors.
¹ Foreign & Commonwealth Office Diversity and Inclusion 20:20 Strategy Who we are and what we do
The FCO represents the whole of the UK Government overseas and all parts of the UK. 29 other UK Government partners share our global platform.
Our global diplomatic network of Embassies, High Commissions, Consulates and other offices is vital in helping the UK Government achieve its international objectives. We use our knowledge of “abroad” – languages, cultures, political economy; and our diplomatic tradecraft - negotiating, influencing, policy and programme delivery to help achieve a goal of a more secure and prosperous United Kingdom. Gender Pay Gap data
The mean gender pay gap is the difference between the mean “ordinary pay” for female and male employees. In the FCO, the mean “ordinary pay” for men is 10.6% higher than for women.
The median gender pay gap is the difference between the median “ordinary pay” for female and male employees. In the FCO, the median “ordinary pay” for men is 11.1% higher than for women.
Gender Pay Gap data - bonuses
The mean gender pay gap for bonuses is 16.7% for men and 5.5% for women. The median gender pay gap for bonuses is 5.5% for men and 5.5% for women.
Proportion of Employees paid a bonus
58.2% of men and 55.2% of women were paid a bonus. Last year, the FCO paid End of Year Performance Related bonuses to 25% of its Senior Civil Service (SCS)/Senior Management Structure (SMS) staff and to 33% of its staff in the grades below the SCS/SMS (the Delegated Grades). The bonuses are fixed values depending on grade. Individual Directorates also run In Year recognition schemes to recognise specific examples of exceptional performance which contribute towards Directorate/Post objectives and/or to the corporate good. The mean bonus is 16.7% higher for men than for women and the median bonus is 5.5% higher.
**Proportion of Men to Women in Each Pay Quartile**
This shows the proportion of male and female staff in each pay quartile. It highlights the fact that there is a higher concentration of women in the lower pay quartile (52.4%) compared to the upper pay quartile (38.3%). Explaining our Gender Pay Gap
Our analysis shows that the main driver behind the pay gap is that a greater proportion of women work in the junior grades (the table below sets out the gender ratio at each grade with A1 being the lowest and SMS 3 the highest). As a result, the mean and median hourly rates for women are lower. Bonuses are higher at the more senior grades (£10,080 at SCS/SMS 1 compared to £1,455 for A1). The fact that a higher proportion of male staff are in the SCS/SMS leads to the mean bonus gender pay gap (16.7%) being higher than the median (5.5%).
Despite the mean and median gender pay gap being 10.6% and 11.1% respectively, the gender pay gap at each individual grade is minimal: Taking Action
The FCO’s Board is committed to promoting a diverse talent pipeline: levelling the playing field by providing further support for talent from under-represented groups including women. To achieve this, the Board is working with FCO Women, a staff association that supports female employees throughout every stage of their career, to enable every woman to reach the peak of her potential. FCO Women offers mentoring and developmental opportunities, organises events and speakers, and is active on policy development.
Since March 2015, the number of women in the SCS/SMS has increased from 27% to 32%. As at the date of publication, 50% of the Board are women. The Board has set a target of 50% women among UK-based staff by 2020 and 39% women in SCS/SMS by 30 September 2019.
To deliver this, and help reduce the gender pay gap, the Permanent under Secretary (PUS) and FCO Women have agreed a 10-point gender plan, with actions aimed at supporting women to progress through the organisation. These include:
- Encouraging women to stay in the FCO and supporting leavers to return, at all grades;
- Offering mentoring and/or sponsorship to women aspiring to promotion or returning from a period of time outside the FCO, at all grades;
- Encouraging women to apply for promotion and supporting their preparation for the step up, at all grades;
- Targeted inward interchange and recruitment of women with relevant skills into the SMS;
- Supporting the work of the FCO’s staff association FCO Women;
- Offering bespoke careers advice to aspiring Band D and SMS women;
- Encouraging women to take part in talent schemes, including Civil Service wide schemes such as the Future Leaders, Senior Leaders and High Potential Directors schemes;
- Widening shortlists for Ambassador and SMS positions, and reinforce measures to reduce unconscious bias in the appointments process; and
- Conducting an external audit of our actions through gender benchmarking by NGO Business in the Community.
FCO Services will issue a separate report setting out the reasons behind its gender pay gap and what it is doing to tackle them. As a Science, Technology, Engineering and Mathematics (STEM) organisation, its main issue is how to attract and retain the best talent when the labour market is in short supply; only 9% of females in the UK work in the STEM industry.
**Pay Policy**
In December 2016, the FCO’s Board agreed its Workforce Strategy which provides the strategic framework and direction for the FCO workforce between 2016 and 2020. Its Pay and Benefits Principles emphasise the FCO’s commitment to offering competitive reward packages that enable us to recruit, retain and motivate staff with the skills and qualities we will continue to need to deliver the FCO’s business objectives. Ensuring equal pay for equal work is one of these principles.
We have introduced two specific pay policy changes which will help reduce our gender pay gap:
In April 2017, we created a Senior Pay Committee to improve governance of how we remunerate our SCS and SMS staff. One of its first decisions was to change the approach for SCS/SMS bonuses so that they are the same regardless of pay band. This should reduce the mean bonus gender pay gap for future years; and
In 2016 and 2017, the FCO’s Executive Committee agreed that annual salary increases for the Delegated Grades should be determined by the level of performance and the position in the pay range. As a result, the largest increases were targeted at the best performers who were the lowest paid in each grade. This will shorten our salary ranges and so help reduce the gender pay gap. Judith Gough, HM Ambassador, Kyiv
I joined the Foreign Office “late” after a 6 year career as a management consultant with Ernst and Young. At the time, I was not convinced that I would be a good fit – state-school educated, non-Diplomat and gay. I hardly fit the stereotype. But I am glad to say that my doubts were misplaced! My first role was on the Gibraltar desk, followed by a policy role on the Western Balkans where I had a stimulating on-the-job crash course in foreign policy making. After spending some time learning Korean, I took up my first overseas posting as Political Counsellor in Seoul and found myself grappling with the DPRK nuclear issue and regional security. Upon my return to London, I drew on my private sector skills to work on corporate services and then joined the Security Policy team, leading on nuclear issues and arms control. This role took me from negotiating at the Non Proliferation Treaty Review Conference at the UN in New York to kick-starting the UK’s demining programme in the Falkland Islands.
As a Russian speaker, I was inexorably drawn to Eastern Europe and took up my first Ambassador role in Georgia in 2010 – an amazing experience in a dynamic country undergoing rapid change. I was lucky to be sponsored by the FCO during this period to complete a masters at Kings College in War Studies. Becoming pregnant, I opted to return to the UK to give birth. After maternity leave, I took the reins as Director for Eastern Europe and Central Asia. Juggling the Ukraine crisis with a small baby was a significant challenge and one that I had not foreseen! Language training following my appointment as HMA Kyiv provided a welcome respite, with flexible working enabling me to balance family and career. My partner is able continue with her career and works remotely from Kyiv. My current role is challenging, but stimulating and rewarding. Ukraine continues to be engaged in a complex conflict with Russia, whilst working hard to reboot her economy and deliver an ambitious reform programme. We are very much at the heart of the 21st century is so much more than that!
Rebecca Brigden, Business Services Director for FCO Services
FCO Services provides secure building, estates and construction as well as protective security and secure logistics to the Foreign and Commonwealth Office (FCO). I am responsible for leading a wide range of business functions within Secure Global Services from the Professional and Technical Services Centres, Translating and Interpreting and Logistics to Central and Commercial teams. After studying for a joint degree in electromechanical engineering at the University of Southampton, I joined the FCO 18 years ago as a C5 (SEO) M&E Engineer to work on the Millennium Bug project. FCO Services supported me to become a Chartered Engineer over a decade ago. I’m perhaps not what people are expecting when they hear an engineer from the Foreign Office is coming to visit. But handing over my business card with my professional qualifications means people take me seriously. I love the fact that I never quite know what my day is going to bring. You have to use your knowledge to find a pragmatic solution and ensure something works in hostile conditions — places where you can’t just go down to a hardware store to get supplies. Married with a ten-year-old daughter, I have an incredibly supportive husband who knows I enjoy what I do. It’s not easy but I do my best to juggle, and I get home in time to put my daughter to bed. I am an active STEM Ambassador and mentor both within and outside FCO Services. FCO Services has allowed me to develop a number of different skills in a unique environment and I can share some of that knowledge then I would be happy to do so.
Fouzia Younis, Comms Directorate
Coming from a small town in the Midlands and as the daughter of first generation migrants from the Commonwealth, I was the first person from my family to go to university and studied at Birmingham University and Cambridge University. My story has instilled a strong desire to help others who may face similar challenges and I am passionate about diversity and inclusion issues. I am on the FCO’s BAME committee, have supported FCO diversity efforts for several years including work through the FCO Women’s Association and Religion and Faith Belief Group, and am a mentor to young people from inner city areas, supporting them to achieve their aspirations of going to university. I have three children and now split my time between London and the Midlands (my children go to school in the Midlands and are looked after by my mum for part of the week). As a career diplomat, I have served in a wide range of diplomatic service roles including postings to Islamabad, Colombo and most recently to Dhaka where I was the UK spokesperson and led the British High Commission Communications team working on behalf of the whole of the government (including DFID, MOD and DIT). Other roles have included a secondment to No 10 working on the NATO summit; delivering HR change programmes; and am now working as the Senior Strategic Communications Advisor on the UK Gulf Strategy delivering the PM’s vision of increasing UK engagement in the Gulf. I speak three languages and am part of the Government Communications Service profession. My work has been shortlisted for FCO staff awards.
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2d3dcfc792dfcdd38caf0980c778a79ae35c0067 | 1. Purpose
1.1 To report the outcome of the consultation process on the 2018/19 General Fund Revenue and Capital Budget and the Government Funding Settlement for 2018/19.
1.2 To agree the Cabinet’s recommendations for the 2018/19 General Fund budgets and Council Tax level and the indicative levels for 2019/20 to 2022/23.
1.3 To outline the General Fund Capital Programme and Funding proposals for 2018/19 and future years.
2. Recommendations
2.1 That the feedback from consultation with the public, organisations and the Overview and Scrutiny and Audit Committees be considered and welcomed (detailed at Appendices 9, 10 and 11).
2.2 That a General Fund Revenue Budget for 2018/19 of £27.360m (excluding parishes) be approved (detailed in Appendices 1 and 2).
2.3 That the Council increase the Council Tax for its own purposes, i.e. excluding County, Police and Parish Precepts, by £6.37 (2.99%) per year per band D property for 2018/19.
2.4 That the Council approve the General Fund Capital Programme and proposed financing for 2018/19, including the inclusion of schemes in the Development Pool, as set out in Appendix 4. 2.5 That Council confirms the aim of maintaining a minimum level of General Fund reserves of £5.5m for 2017/18, having regard to the outcome of the financial risk assessment, and also note the position on earmarked reserves (Appendix 7).
2.6 That authority be delegated to the Chief Finance Officer in consultation with the Cabinet Member for Finance, and where appropriate the relevant Director and Cabinet Member to:
- Transfer monies to/from earmarked reserves should that become necessary during the financial year.
- Update prudential indicators in both the Prudential Indicators Report and Treasury Strategy Report to Council, for any budget changes that impact on these.
2.7 That the draft Fees and Charges set out in Appendix 8 of the attached Cabinet report be approved, including immediate implementation where appropriate.
2.8 That Council approve the Treasury Management Strategy for 2018/19 at Appendix 5 of this report: incorporating:
(i) The Capital Financing and Borrowing Strategy for 2018/19 including:
- The Council’s policy on the making of Minimum Revenue Provision (MRP) for the repayment of debt, as required by the Local Authorities (Capital Finance & Accounting) (England) (Amendment) Regulations 2008.
- The Affordable Borrowing Limit for 2018/19 as required by the Local Government Act 2003.
(ii) The Investment Strategy for 2018/19 as required by the CLG revised Guidance on Local Government Investments issued in 2010.
2.9 That authority be delegated to the Council’s Chief Finance Officer, in liaison with the Cabinet member for Finance, to make any temporary changes needed to the Council’s borrowing and investment strategy to enable the authority to meet its obligations.
2.10 That Council delegate authority to the Chief Executive, Directors and Chief Finance Officer to implement all budget options and restructures.
3. Issues and Choices
3.1 Report Background
3.1.1 In the event that there are changes made in accordance with the delegated authority to the Chief Finance Officer following Cabinet’s meeting on the 21st February, updated appendices to the Cabinet report will be tabled reflecting these changes. 3.1.2 See also Cabinet report attached.
4. Implications (including financial implications)
4.1 Policy 4.1.1 See Cabinet report attached
4.2 Resources and Risk 4.2.1 See Cabinet report attached
4.3 Legal 4.3.1 See Cabinet report attached
4.4 Equality 4.4.1 See Cabinet report attached
4.5 Other Implications 4.5.1 See Cabinet report attached
5. Background Papers 5.1 See Cabinet Report attached
Stuart McGregor, Chief Finance Officer, [email protected] Simon Bovey, Chief Executive, ext 7726, [email protected]
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Subsets and Splits