TITLE IV PROVISIONS TAKEN FROM THE ACT CONCERNING THE CONDITIONS OF ACCESSION OF THE KINGDOM OF SPAIN AND THE PORTUGUESE REPUBLIC SECTION 1 Financial provisions Article 27 The own resources accruing from value added tax shall be calculated and checked as if the Canary Islands and Ceuta and Melilla were included in the territorial field of application of Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes — Common system of value added tax: uniform basis of assessment. SECTION 2 Provisions on patents Article 28 The provisions of Spanish national law relating to the burden of proof, which were adopted under paragraph 2 of Protocol No 8 to the Act concerning the conditions of accession of the Kingdom of Spain and the Portuguese Republic, shall not apply if the infringement proceedings are brought against the holder of another process patent for the manufacture of a product identical to that954393_TRAITE_EN_251_300 12-01-2005 15:21 Pagina 286 286 Part IV obtained as the result of the patented process of the plaintiff, if that other patent was issued before 1 January 1986. In cases where shifting the burden of proof does not apply, the Kingdom of Spain shall continue to require the patent holder to adduce proof of infringement. In all these cases the Kingdom of Spain shall apply a judicial procedure known as ‘distraint‑description’. ‘Distraint‑description’ means a procedure forming part of the system referred to in the first and second paragraphs by which any person entitled to bring an action for infringement may, after obtaining a court order, granted on his application, cause a detailed description to be made, at the premises of the alleged infringer, by a bailiff assisted by experts, of the processes in question, in particular by photocopying technical documents, with or without actual distraint. This court order may order the payment of a security, intended to grant damages to the alleged infringer in case of injury caused by the ‘distraint‑description’. Article 29 The provisions of Portuguese national law relating to the burden of proof, which were adopted under paragraph 2 of Protocol No 19 to the Act concerning the conditions of accession of the Kingdom of Spain and the Portuguese Republic, shall not apply if the infringement proceedings are brought against the holder of another process patent for the manufacture of a product identical to that obtained as the result of the patented process of the plaintiff, if that other patent was issued before 1 January 1986. In cases where shifting the burden of proof does not apply, the Portuguese Republic shall continue to require the patent holder to adduce proof of infringement. In all these cases, the Portuguese Republic shall apply a judicial procedure known as ‘distraint‑description’. ‘Distraint‑description’ means a procedure forming part of the system referred to in the first and second paragraphs by which any person entitled to bring an action for infringement may, after obtaining a court order, granted on his application, cause a detailed description to be made, at the premises of the alleged infringer, by a bailiff assisted by experts, of the processes in question, in particular by photocopying technical documents, with or without actual distraint. This court order may order the payment of a security, intended to grant damages to the alleged infringer in case of injury caused by the ‘distraint‑description’. SECTION 3 Provisions on the mechanism for additional responsibilities within the framework of fisheries agreements concluded by the Union with third countries Article 30

1. A specific system is hereby established for the execution of operations carried out as a complement to fishing activities undertaken by vessels flying the flag of a Member State in waters falling under the sovereignty or within the jurisdiction of a third country within the framework of responsibilities created under fisheries agreements concluded by the Union with the third countries in question.954393_TRAITE_EN_251_300 12-01-2005 15:21 Pagina 287 Treaty establishing a Constitution for Europe 287
2. Operations considered likely to occur by way of addition to fishing activities subject to the conditions and within the limits referred to in paragraphs 3 and 4 relate to: (a) the processing, in the territory of the third country concerned, of fishery products caught by vessels flying the flag of a Member State in the waters of that third country in the course of fishing activities carried out by virtue of a fisheries agreement, with a view to those products being put on the Union market under tariff headings falling within Chapter 3 of the Common Customs Tariff, (b) the loading or transhipment aboard a vessel flying the flag of a Member State occurring within the framework of activities provided for under such a fisheries agreement, of fishery products falling within Chapter 3 of the Common Customs Tariff with a view to their transport and any processing for the purpose of being put on the Union market.
3. The import into the Union of products having been the subject of the operations referred to in paragraph 2 shall be carried out subject to suspension, in part or in whole, of the Common Customs Tariff duties or subject to a special system of charges, under the conditions and within the limits of additionality fixed annually in relation to the volume of fishing possibilities deriving from the agreements in question and from their accompanying detailed rules.
4. European laws or framework laws shall lay down the general rules of application of this system and in particular the criteria for fixing and apportioning the quantities concerned. The detailed implementing rules of this system and the quantities concerned shall be adopted in accordance with the procedure laid down in Article 37 of Regulation (EC) No 104/2000. SECTION 4 Provisions on Ceuta and Melilla Subsection 1 General provisions Article 31
5. The Constitution and the acts of the institutions shall apply to Ceuta and to Melilla, subject to the derogations referred to in paragraphs 2 and 3 and to the other provisions of this Section.
6. The conditions under which the provisions of the Constitution concerning the free movement of goods, and the acts of the institutions concerning customs legislation and commercial policy, shall apply to Ceuta and to Melilla are set out in Subsection 3 of this Section.
7. Without prejudice to the specific provisions of Article 32, the acts of the institutions concerning the common agricultural policy and the common fisheries policy shall not apply to Ceuta or to Melilla.954393_TRAITE_EN_251_300 12-01-2005 15:21 Pagina 288 288

Part IV At the request of the Kingdom of Spain, a European law or framework law of the Council may: (a) include Ceuta and Melilla in the customs territory of the Union; (b) define the appropriate measures aimed at extending to Ceuta and to Melilla the provisions of Union law in force. On a proposal from the Commission acting on its own initiative or at the request of a Member State, the Council may adopt a European law or framework law adjusting the arrangements applicable to Ceuta and to Melilla if necessary. The Council shall act unanimously after consulting the European Parliament. Subsection 2 Provisions relating to the Common Fisheries Policy Article 32

1. Subject to paragraph 2 and without prejudice to Subsection 3, the common fisheries policy shall not apply to Ceuta or to Melilla.
2. The Council, on a proposal from the Commission, shall adopt the European laws, framework laws, regulations or decisions which: (a) determine the structural measures which may be adopted in favour of Ceuta and Melilla; (b) determine the procedures appropriate to take into consideration all or part of the interests of Ceuta and Melilla when it adopts acts, case by case, with a view to the negotiations by the Union aimed at the resumption or conclusion of fisheries agreements with third countries and to the specific interests of Ceuta and Melilla within international conventions concerning fisheries, to which the Union is a contracting party.
3. The Council, on a proposal from the Commission, shall adopt the European laws, framework laws, regulations or decisions which determine, where appropriate, the possibilities and conditions of mutual access to respective fishing zones and to the resources thereof. It shall act unanimously.
4. The European laws and framework laws referred to in paragraphs 2 and 3 shall be adopted after consultation of the European Parliament. Subsection 3 Provisions on free movement of goods, customs legislation and commercial policy Article 33
5. Products originating in Ceuta or in Melilla and products coming from third countries imported into Ceuta or into Melilla under the arrangements which are applicable there to them shall not be954393_TRAITE_EN_251_300 12-01-2005 15:21 Pagina 289 Treaty establishing a Constitution for Europe 289 deemed, when released for free circulation in the customs territory of the Union, to be goods fulfilling the conditions of paragraphs 1 to 3 of Article 3‑151 of the Constitution.

The customs territory of the Union shall not include Ceuta and Melilla. 3. Except where otherwise provided for in this Subsection, the acts of the institutions regarding customs legislation for foreign trade shall apply under the same conditions to trade between the customs territory of the Union, on the one hand, and Ceuta and Melilla, on the other. 4. Except where otherwise provided for in this Subsection, the acts of the institutions regarding the common commercial policy, be they autonomous or enacted by agreement, directly linked to the import or export of goods, shall not be applicable to Ceuta or to Melilla. 5. Except where otherwise provided for in this Title, the Union shall apply in its trade with Ceuta and Melilla, for products falling within Annex I to the Constitution, the general arrangements which it applies in its foreign trade. Article 34 Subject to Article 35, customs duties on the import into the customs territory of the Union of products originating in Ceuta or in Melilla shall be abolished. Article 35

1. Fishery products falling within headings 0301, 0302, 0303, 1604, 1605 and subheadings 0511 91 and 2301 20 of the Common Customs Tariff and originating in Ceuta or in Melilla, shall, within the limit of tariff quotas calculated by product and on the average quantities actually disposed of during 1982, 1983 and 1984, qualify for exemption from customs duties throughout the customs territory of the Union. The release for free circulation of products imported into the customs territory of the Union, under these tariff quotas, shall be subject to compliance with the rules laid down by the common organisation of markets and in particular with respect to reference prices.
2. The Council, on a proposal from the Commission, shall each year adopt European regulations or decisions opening and allocating tariff quotas in accordance with the detailed rules laid down in paragraph 1. Article 36
3. Where application of Article 34 could lead to a substantial increase in the import of certain products originating in Ceuta or in Melilla such as might prejudice Union producers, the Council, on a proposal from the Commission, may adopt European regulations or decisions to subject the access of these products to the customs territory of the Union to special conditions.
4. Where, because the common commercial policy and the Common Customs Tariff are not applied to the import of raw materials or intermediate products into Ceuta or into Melilla, imports of a product originating in Ceuta or in Melilla cause, or may cause, serious injury to a producer activity954393_TRAITE_EN_251_300 12-01-2005 15:21 Pagina 290 290 Part IV exercised in one or more Member States, the Commission, at the request of a Member State or on its own initiative, may take the appropriate measures. Article 37 The customs duties on import into Ceuta and into Melilla of products originating in the customs territory of the Union, and charges having equivalent effect, shall be abolished. Article 38 The customs duties and charges having an effect equivalent to such duties and the trade arrangements applied on the import into Ceuta and into Melilla of goods coming from a third country may not be less favourable than those applicable by the Union in accordance with its international commitments or its preferential arrangements with regard to such third country, providing that the same third country grants, to imports from Ceuta and from Melilla, the same treatment as that which it grants to the Union. However, the arrangements applied to imports into Ceuta and into Melilla with regard to goods coming from such third country may not be more favourable than those applied with regard to the imports of products originating in the customs territory of the Union. Article 39 The Council, on a proposal from the Commission, shall adopt European regulations or decisions laying down the rules for the application of this Subsection and in particular the rules of origin applicable to trade, as referred to in Articles 34, 35 and 37, including the provisions concerning the identification of originating products and the control of origin. The rules will include, in particular, provisions on marking and/or labelling of products, on the conditions of registration of vessels, on the application of the rule on mixed origin for fishery products, and also provisions enabling the origin of products to be determined. SECTION 5 Provisions on the regional development of Spain Article 40 The Member States take note of the fact that the Spanish Government has embarked upon the implementation of a policy of regional development designed in particular to stimulate economic growth in the less‑developed regions and areas of Spain. They recognise it to be in their common interest that the objectives of this policy be attained. They agree, in order to help the Spanish Government to accomplish this task, to recommend that the institutions use all the means and procedures laid down by the Constitution, particularly by making adequate use of the Union resources intended for the realisation of its objectives.954393_TRAITE_EN_251_300 12-01-2005 15:21 Pagina 291 Treaty establishing a Constitution for Europe 291 The Member States recognise in particular that, in the application of Articles III‑167 and III‑168 of the Constitution, it will be necessary to take into account the objectives of economic expansion and the raising of the standard of living of the population of the less‑developed regions and areas of Spain. SECTION 6 Provisions on the economic and industrial development of Portugal Article 41 The Member States take note of the fact that the Portuguese Government has embarked upon the implementation of a policy of industrialisation and economic development designed to align the standard of living in Portugal with that of the other Member States and to eliminate underemployment while progressively evening out regional differences in levels of development. They recognise it to be in their common interest that the objectives of this policy be attained. They agree to recommend to this end that the institutions use all the means and procedures laid down by the Constitution, particularly by making adequate use of the Union resources intended for the realisation of its objectives. The Member States recognise in particular that, in the application of Articles III-167 and III-168 of the Constitution, it will be necessary to take into account the objectives of economic expansion and the raising of the standard of living of the population. SECTION 7 Provisions on the exchange of information with the Kingdom of Spain in the field of nuclear energy Article 42
5. From 1 January 1986, such information as has been communicated to Member States, persons and undertakings, in accordance with Article 13 of the Treaty establishing the European Atomic Energy Community, shall be placed at the disposal of the Kingdom of Spain, which shall give it limited distribution within its territory under the conditions laid down in that Article.
6. From 1 January 1986, the Kingdom of Spain shall place at the disposal of the European Atomic Energy Community information obtained in the nuclear field in Spain which is given limited distribution, insofar as strictly commercial applications are not involved. The Commission shall communicate this information to Community undertakings under the conditions laid down in Article 13 of the Treaty establishing the European Atomic Energy Community.

The information referred to in paragraphs 1 and 2 shall mainly concern: (a) nuclear physics (low- and high-energy); (b) radiation protection;954393_TRAITE_EN_251_300 12-01-2005 15:21 Pagina 292 292 Part IV (c) isotope applications, in particular those of stable isotopes; (d) research reactors and relevant fuels; (e) research into the field of the fuel cycle (more especially the mining and processing of low‑grade uranium ore; optimisation of fuel elements for power reactors). Article 43

1. In those sectors in which the Kingdom of Spain places information at the disposal of the European Atomic Energy Community, the competent authorities shall grant upon request licences on commercial terms to Member States, persons and undertakings of the Community where they possess exclusive rights to patents filed in Member States and insofar as they have no obligation or commitment in respect of third parties to grant or offer to grant an exclusive or partially exclusive licence to the rights in these patents.
2. Where an exclusive or partially exclusive licence has been granted, the Kingdom of Spain shall encourage and facilitate the granting of sublicences on commercial terms to Member States, persons and undertakings of the Community by the holders of such licences. Such exclusive or partially exclusive licences shall be granted on a normal commercial basis. SECTION 8 Provisions on the exchange of information with the Portuguese Republic in the field of nuclear energy Article 44
3. From 1 January 1986, such information as has been communicated to Member States, persons and undertakings, in accordance with Article 13 of the Treaty establishing the European Atomic Energy Community, shall be placed at the disposal of the Portuguese Republic, which shall give it limited distribution within its territory under the conditions laid down in that Article.
4. From 1 January 1986, the Portuguese Republic shall place at the disposal of the European Atomic Energy Community information obtained in the nuclear field in Portugal which is given limited distribution, insofar as strictly commercial applications are not involved. The Commission shall communicate this information to Community undertakings under the conditions laid down in Article 13 of the Treaty establishing the European Atomic Energy Community.

The information referred to in paragraphs 1 and 2 shall mainly concern: (a) reactor dynamics; (b) radiation protection;954393_TRAITE_EN_251_300 12-01-2005 15:21 Pagina 293 Treaty establishing a Constitution for Europe 293 (c) application of nuclear measuring techniques (in the industrial, agricultural, archaeological and geological fields); (d) atomic physics (effective measuring of cross sections, pipeline techniques); (e) extractive metallurgy of uranium. Article 45

1. In those sectors in which the Portuguese Republic places information at the disposal of the European Atomic Energy Community, the competent authorities shall grant upon request licences on commercial terms to Member States, persons and undertakings of the Community where they possess exclusive rights to patents filed in Member States and insofar as they have no obligation or commitment in respect of third parties to grant or offer to grant an exclusive or partially exclusive licence to the rights in these patents.
2. Where an exclusive or partially exclusive licence has been granted, the Portuguese Republic shall encourage and facilitate the granting of sublicences on commercial terms to Member States, persons and undertakings of the Community by the holders of such licences. Such exclusive or partially exclusive licences shall be granted on a normal commercial basis.