2013/107/: Council Decision of 13 November 2012 on the signing and conclusion of the Agreement between the Government of the United States of America and the European Union on the coordination of energy-efficiency labelling programmes for office equipment Text with EEA relevance

The Agreement between the Government of the United States of America and the European Union on the coordination of energy-efficiency labelling programmes for office equipment, including its Annexes (hereinafter referred to as ‘the Agreement’), is hereby approved on behalf of the Union. The text of the Agreement and the Annexes thereto are attached to this Decision.

The President of the Council is hereby authorised to designate the person(s) empowered to sign the Agreement in order to bind the Union.

The President of the Council shall, on behalf of the Union, give the notification in writing provided for in Article XIV(1) of the Agreement.

The Commission shall represent the Union in the Technical Commission provided for in Article VII of the Agreement, after having heard the views of the members of the European Union Energy Star Board referred to in Article 8 of Regulation (EC) No 106/2008 of the European Parliament and of the Council of 15 January 2008 on a Community energy-efficiency labelling programme for office equipment . The Commission shall proceed, after consulting with the European Union Energy Star Board, to the communications, cooperation, review of the implementation and notifications referred to in Articles VI(4), VII(1) and (2), and IX(4) of the Agreement. With a view to preparing the Union position as regards amendments to the list of office equipment in Annex C to the Agreement, the Commission shall take into account any opinion given by the European Union Energy Star Board. The position of the Union with regard to decisions to be taken by the management entities shall be determined, with regard to amendments to Annex A (Energy Star name and common logo), Annex B (Guidelines for proper use of the Energy Star name and common logo) and Annex C (Common Specifications) to the Agreement, by the Commission, after consulting with the European Union Energy Star Board. In all other cases, the position of the Union with regard to decisions to be taken by the Parties to the Agreement shall be determined by the Council, acting on a proposal from the Commission in accordance with Article 218(9) of the Treaty.

This Decision shall enter into force on the twentieth day following that of its publication in the Official Journal of the European Union.

1 A common set of energy-efficiency specifications and a common logo shall be used by the Parties for the purpose of establishing consistent targets for manufacturers, thereby maximising the effect of their individual efforts on the supply of and demand for such product types.

2 The Parties shall use the Common Logo for the purpose of identifying qualified energy-efficient product types listed in Annex C.

3 The Parties shall ensure that common specifications encourage continuing improvement in efficiency, taking into account the most advanced technical practices on the market.

4 The Common Specifications strive to represent not more than the top 25 percent energy efficient models for which data is available at the time the specifications are set while also taking other factors into consideration.

5 The Parties shall endeavour to ensure that consumers have the opportunity to identify efficient products by finding the label in the market.

This Agreement supersedes in its entirety the 2006 Agreement.

For the purposes of this Agreement: (a) 'ENERGY STAR' means the service mark designated in Annex A and owned by the United States Environmental Protection Agency ('U.S. EPA'); (b) 'Common Logo' means the certification mark designated in Annex A and owned by U.S. EPA; (c) 'ENERGY STAR Marks' means the 'ENERGY STAR' service mark and the Common Logo, as well as any versions of these marks that may be developed or modified by the Management Entities or Program Participants, as herein defined, including the sign or marking contained in Annex A of this Agreement; (d) 'ENERGY STAR Labelling Program' means a program administered by a Management Entity using common energy efficiency specifications, marks, and guidelines to be applied to designated product types; (e) 'Program Participants' means manufacturers, vendors, or resale agents that sell designated, energy-efficient products that meet the specifications of and who have chosen to participate in, the ENERGY STAR Labelling Program by registering or entering an agreement with the Management Entity of either Party; (f) 'Common Specifications' are the energy-efficiency and performance requirements, including testing methods listed in Annex C, used by Management Entities and Program Participants to determine qualification of energy-efficient products for the Common Logo. (g) 'Third-party certification means a set of procedures under the U.S. ENERGY STAR Program that an independent organization administers to ensure that products meet ENERGY STAR requirements. These procedures include testing in a laboratory that meets international standards for quality and competency. These procedures also include review of documentation to determine ENERGY STAR eligibility and ongoing verification testing to ensure continued compliance. (h) 'Self-certification' means a set of procedures for qualifying products under the EU ENERGY STAR Program whereby the Program Participant ensures and declares that the registered product complies with all relevant provisions of the applicable Common Specifications.

Each Party hereby designates a management entity responsible for implementation of this Agreement (the 'Management Entities'). The European Union designates the Commission of the European Union ('Commission') as its Management Entity. The United States of America designates the U.S. EPA as its Management Entity.

1 Each Management Entity shall administer the ENERGY STAR Labelling Program for the energy-efficient product types listed in Annex C, subject to the terms and conditions set forth in this Agreement. Program administration includes registering Program Participants on a voluntary basis, maintaining Program Participant and compliant product lists, and enforcing the terms of the Guidelines for Proper Use of the ENERGY STAR Name and Common Logo set forth in Annex B.

2 The ENERGY STAR Labelling Program shall use the Common Specifications listed in Annex C.

3 To the extent that each Management Entity takes effective measures to educate consumers about the ENERGY STAR Marks, it shall do so in accordance with the Guidelines for Proper Use of the ENERGY STAR Name and Common Logo set forth in Annex B.

4 Each Management Entity shall bear the expenses for all of its activities under this Agreement.

1 The Management Entities shall permit any manufacturer, vendor or resale agent to enter the ENERGY STAR Labelling Program by registering as a Program Participant.

2 The Management Entities shall permit Program Participants to use the Common Logo to identify qualified products that have been tested in their own facilities or by an independent test laboratory and that meet the Common Specifications set forth in Annex C. For products placed solely on the EU market, the Management Entity allows Program Participants to self-certify the qualified products. For products placed on the US market the Management Entity requires the Program Participants meet the third party certification requirements laid out in the revised U.S. Partner Commitments.

3 Each Management Entity shall maintain and share with the other lists of all Program Participants and products that qualify for the Common Logo in their respective territory.

4 Notwithstanding the procedures specified in paragraph 2 (self-certification for products placed on the EU market and third-party certification for products placed on the US market), each Management Entity reserves the right to test or otherwise review products that are or have been sold within its territories (in the territories of the European Union Member States in the case of the Commission) to determine whether the products are certified in accordance with the Common Specifications set forth in Annex C. The Management Entities shall communicate and cooperate fully with one another to ensure all products bearing the Common Logo meet the Common Specifications set forth in Annex C.

1 The Parties shall establish a Technical Commission to review implementation of this Agreement, composed of representatives of their respective Management Entities.

2 To the extent possible, the Technical Commission shall meet annually and shall consult at the request of one of the Management Entities to review the operation and administration of the ENERGY STAR Labelling Program, the Common Specifications set forth in Annex C, product coverage, and the progress in achieving the objectives of this Agreement.

3 Non-parties (including other governments and industry representatives) may attend meetings of the Technical Commission as observers, unless otherwise agreed by both Management Entities.

1 The U.S. EPA, as owner of the ENERGY STAR marks, has registered the marks in the European Union as Community Trade Marks. The Commission shall not seek or obtain any registration of the ENERGY STAR marks or any variation of the marks in any country.

2 The U.S. EPA undertakes not to consider as an infringement of these marks the use by the Commission, or the authorized use by any Program Participant registered by the Commission, of the ENERGY STAR marks in accordance with the terms of this Agreement.

1 In order to protect the ENERGY STAR marks, each Management Entity shall ensure the proper use of the ENERGY STAR marks within its territory (within the territories of the European Union Member States in the case of the Commission). Each Management Entity shall ensure that the ENERGY STAR marks are used only in the form that appears in Annex A and only on qualifying products. Each Management Entity shall ensure that the ENERGY STAR marks are used solely in the manner specified in the Guidelines for Proper Use of the ENERGY STAR Name and Common Logo set forth in Annex B.

2 Each Management Entity shall ensure that prompt and appropriate action is taken against Program Participants, whenever it has knowledge that a Program Participant has used an infringing mark or has affixed an ENERGY STAR mark to a product that does not comply with the Specifications set forth in Annex C. Such actions shall include, but not be limited to: (a) informing the Program Participant in writing of its non-compliance with the terms of the ENERGY STAR Labelling Program; (b) through consultations, developing a plan to reach compliance; and (c) if compliance cannot be reached, terminating the registration of the Program Participant, as appropriate.

3 Each Management Entity shall ensure that all reasonable actions are taken to end the unauthorised use of the ENERGY STAR marks or use of an infringing mark by an entity that is not a Program Participant. Such actions shall include, but shall not be limited to: (a) informing the entity using the ENERGY STAR marks of ENERGY STAR Labelling Program requirements and the Guidelines for Proper Use of the ENERGY STAR Name and Common Logo; and (b) encouraging the entity to become a Program Participant and register qualified products, if appropriate;

4 Each Management Entity shall immediately notify the Management Entity of the other Party of any infringement of the ENERGY STAR marks in the other Party's territory as well as the initial action taken, if any, to end such infringement.

5 If compliance cannot be reached following actions listed under points 2 and 3 above, the EU shall require its Member States to fully cooperate and consult with the Management Entity and take all necessary measures, including legal action, to end any non-complying, and therefore, unauthorized use of the ENERGY STAR marks

1 Either Management Entity may propose an amendment to this Agreement and may propose new annexes to the Agreement.

2 A proposed amendment shall be made in writing and shall be discussed at the next meeting of the Technical Commission, provided that it has been communicated to the other Management Entity at least sixty days in advance of such meeting.

3 Amendments to this Agreement and decisions to add new annexes shall be made by mutual agreement of the Parties. Amendments to Annexes A, B, and C shall be made according to the provisions of Articles XI and XII.

1 A Management Entity seeking to amend Annex A or Annex B shall follow the procedures set forth in paragraphs 1 and 2 of Article X.

2 Amendments to Annexes A and B shall be made by mutual agreement of the Management Entities.

1 A Management Entity seeking to amend Annex C to revise existing Specifications or to add a new product type ('Proposing Management Entity') shall follow the procedures set forth in paragraphs 1 and 2 of Article X, and shall include in its proposal: (a) a demonstration that significant energy savings would result from revising the Specifications or adding the new product type; (b) as appropriate, energy consumption requirements for various power consumption modes; (c) information on the standardised testing protocols to be used in evaluating the product; (d) evidence of existing non-proprietary technology that would make possible cost-effective energy savings without negatively affecting product performance; information on the estimated number of product models that would meet the proposed specification and approximate market share represented; (e) information on the views of industry groups potentially affected by the proposed amendment; and (f) a proposed effective date for the new Specifications, taking into consideration product life cycles and production schedules.

2 Proposed amendments to Annex C that are accepted by both Management Entities shall enter into force on a date mutually agreed by the Management Entities.

3 If, after receipt of a proposal made in accordance with paragraphs 1 and 2 of Article X, the other Management Entity ('Objecting Management Entity') is of the view that the proposal does not meet the requirements specified in paragraph 1 or otherwise objects to the proposal it shall promptly (normally by the next Technical Commission Meeting) notify the Proposing Management Entity in writing of its objection and shall include any available information supporting its objection; for example, information demonstrating that the proposal, if adopted, would likely: (a) disproportionately and unfairly confer market power on one company or industry group; (b) undermine overall industry participation in the ENERGY STAR labelling program; (c) conflict with its laws and regulations; or (d) impose burdensome technical requirements.

4 The Management Entities shall make best efforts to reach agreement on the proposed amendment at the first meeting of the Technical Commission following the proposal. If the Management Entities are unable to reach agreement on the proposed amendment at this Technical Commission meeting, they shall seek to reach agreement in writing prior to the subsequent Technical Commission meeting.

5 If, by the end of the subsequent Technical Commission meeting, the Parties are unable to reach agreement, the Proposing Management Entity shall withdraw its proposal; and with respect to proposals to revise existing Specifications, the corresponding product type shall be removed from Annex C by the date agreed upon in writing by the Management Entities. All Program Participants shall be informed of this change and of the procedures to be followed to implement this change.

6 When preparing new Common Specifications or revising existing Common Specifications, the Management Entities shall ensure effective coordination and consultation among themselves and with their respective stakeholders, particularly with regard to the content of the working documents and timelines.

1 Other environmental labelling programs are not covered by this Agreement and may be developed and adopted by either of the Parties.

2 All activities undertaken under this Agreement shall be subject to the applicable laws and regulations of each Party and to the availability of appropriated funds and resources.

3 Nothing in this Agreement shall affect the rights and obligations of any Party deriving from a bilateral, regional or multilateral agreement into which it has entered prior to the entry into force of this Agreement.

4 Without prejudice to any other provisions of this Agreement, either Management Entity may run labelling programs, other than ENERGY STAR, with respect to product types not included in Annex C. Notwithstanding any other provisions of this Agreement, neither Party shall hinder the import, export, sale or distribution of product in such a program because it bears the energy-efficiency marks of the Management Entity of the other Party.

1 This Agreement shall enter into force on the date upon which each Party has notified the other in writing through diplomatic channels that its respective internal procedures necessary for its entry into force have been completed.

2 This Agreement shall remain in force for a period of five years. At least one year prior to the end of this period, the Parties shall meet to discuss renewal of this Agreement.

1 Either Party may terminate this Agreement at any time by providing three months written notice to the other Party.

2 In the event of termination or non-renewal of this Agreement, the Management Entities shall inform all Program Participants which they have registered of the termination of the joint program. Moreover, Management Entities shall inform the Program Participants which they have registered that each Management Entity may continue the labelling activities under two separate individual programs. In this case, the European Union labelling program will not use the ENERGY STAR marks. The Commission shall ensure that itself, the Member States of the European Union and any Program Participants which it has registered cease using the ENERGY STAR marks by the date agreed upon in writing by the Management Entities. The obligations contained in this Article XV (2) shall survive the termination of this Agreement.