Commission Implementing Regulation (EU) 2018/574Show full title

Article 35 U.K. Independence

1. [F1 The ID issuer, the provider of the data repository and providers of] anti-tampering devices as well as, where applicable, their subcontractors shall be independent and exercise their functions impartially.

2. For the purposes of paragraph 1, the following criteria shall be used to assess independence:

(a) independence from the tobacco industry in terms of legal form, organisation and decision making. In particular it shall be assessed whether the undertaking or the group of undertakings is not under the direct or indirect control of the tobacco industry, including a minority shareholding;

(b) independence from the tobacco industry in financial terms, which will be presumed if, before assuming their functions the undertaking or the group of undertakings concerned generates less than 10 % of its annual worldwide turnover, excluding VAT and any other indirect taxes, from goods and services supplied to the tobacco sector over the past two calendar years, as may be determined on the basis of the most recent approved accounts. For each subsequent calendar year, the annual worldwide turnover, excluding VAT and any other indirect taxes, from goods and services supplied to the tobacco sector shall not exceed 20 %;

(c) absence of conflicts of interests with the tobacco industry of the persons responsible for the management of the undertaking or the group of undertakings, including members of the board of directors or any other form of governing body. In particular, they:

(1)

shall not have participated in company structures of the tobacco industry for the last five years;

(2)

shall act independently from any pecuniary or non-pecuniary interest linked to the tobacco industry, including possession of stocks, participation in private pension programmes or interest held by their partners, spouses or direct relatives in the ascending or descending line.

3. Where [F2 the ID issuer, the provider of the data repository] and providers of anti-tampering devices have recourse to sub-contractors, they shall remain responsible for ensuring compliance by those subcontractors with the independence criteria set out in paragraph 2.

F3 4. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

5. Any change in circumstances related to the criteria referred to in paragraph 2, capable of affecting the independence of [F4 the ID issuer, the provider of the data repository] and providers of anti-tampering devices (including, where applicable, their subcontractors), that subsist for two consecutive calendar years, shall be communicated without delay to [F5 HMRC].

F6 6. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

7. [F7 The ID issuer, the provider of the data repository] and providers of anti-tampering devices shall inform without delay [F8 HMRC] about any occurrences of threats or other attempts at exercising undue influence that may actually or potentially undermine their independence.

8. Public authorities or undertakings governed by public law along with their subcontractors shall be presumed independent from the tobacco industry.

F9 9. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F1 Words in Art. 35(1) substituted (31.12.2020) by The Tobacco Products (Traceability System and Security Features) (Amendments) (EU Exit) Regulations 2020 (S.I. 2020/1496), reg. 1(2), Sch. 1 para. 45(a) (with regs. 3(2)(3), 4-6)

F2 Words in Art. 35(3) substituted (31.12.2020) by The Tobacco Products (Traceability System and Security Features) (Amendments) (EU Exit) Regulations 2020 (S.I. 2020/1496), reg. 1(2), Sch. 1 para. 45(c) (with regs. 3(2)(3), 4-6)

F3 Art. 35(4) omitted (31.12.2020) by virtue of The Tobacco Products (Traceability System and Security Features) (Amendments) (EU Exit) Regulations 2020 (S.I. 2020/1496), reg. 1(2), Sch. 1 para. 45(b) (with regs. 3(2)(3), 4-6)

F4 Words in Art. 35(5) substituted (31.12.2020) by The Tobacco Products (Traceability System and Security Features) (Amendments) (EU Exit) Regulations 2020 (S.I. 2020/1496), reg. 1(2), Sch. 1 para. 45(c) (with regs. 3(2)(3), 4-6)

F5 Word in Art. 35(5) substituted (31.12.2020) by The Tobacco Products (Traceability System and Security Features) (Amendments) (EU Exit) Regulations 2020 (S.I. 2020/1496), reg. 1(2), Sch. 1 para. 45(d) (with regs. 3(2)(3), 4-6)

F6 Art. 35(6) omitted (31.12.2020) by virtue of The Tobacco Products (Traceability System and Security Features) (Amendments) (EU Exit) Regulations 2020 (S.I. 2020/1496), reg. 1(2), Sch. 1 para. 45(b) (with regs. 3(2)(3), 4-6)

F7 Words in Art. 35(7) substituted (31.12.2020) by The Tobacco Products (Traceability System and Security Features) (Amendments) (EU Exit) Regulations 2020 (S.I. 2020/1496), reg. 1(2), Sch. 1 para. 45(e)(i) (with regs. 3(2)(3), 4-6)

F8 Word in Art. 35(7) substituted (31.12.2020) by The Tobacco Products (Traceability System and Security Features) (Amendments) (EU Exit) Regulations 2020 (S.I. 2020/1496), reg. 1(2), Sch. 1 para. 45(e)(ii) (with regs. 3(2)(3), 4-6)

F9 Art. 35(9) omitted (31.12.2020) by virtue of The Tobacco Products (Traceability System and Security Features) (Amendments) (EU Exit) Regulations 2020 (S.I. 2020/1496), reg. 1(2), Sch. 1 para. 45(b) (with regs. 3(2)(3), 4-6)