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COMMISSION REGULATION (EC) No 2755/1999
of 21 December 1999
establishing unit values for the determination of the customs value of certain perishable goods
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code(1), as last amended by Regulation (EC) No 955/1999 of the European Parliament and of the Council(2),
Having regard to 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(3), as last amended by Regulation (EC) No 1662/1999(4), and in particular Article 173 (1) thereof,
(1) Whereas Articles 173 to 177 of Regulation (EEC) No 2454/93 provide that the Commission shall periodically establish unit values for the products referred to in the classification in Annex 26 to that Regulation;
(2) Whereas the result of applying the rules and criteria laid down in the abovementioned Articles to the elements communicated to the Commission in accordance with Article 173 (2) of Regulation (EEC) No 2454/93 is that unit values set out in the Annex to this Regulation should be established in regard to the products in question,
HAS ADOPTED THIS REGULATION:
Article 1
The unit values provided for in Article 173 (1) of Regulation (EEC) No 2454/93 are hereby established as set out in the table in the Annex hereto.
Article 2
This Regulation shall enter into force on 24 December 1999.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 21 December 1999.
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COMMISSION REGULATION (EC) No 3082/94 of 16 December 1994 on the sale of beef at prices fixed at a flat rate in advance held by certain intervention agencies and intended for supplying the Canary Islands and repealing Regulation (EC) No 2497/94
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Council Regulation (EEC) No 805/68 of 27 June 1968 on the common organization of the market in beef and veal (1), as last amended by Regulation (EC) No 1884/94 (2), and in particular Article 7 (3) thereof;
Whereas Council Regulation (EEC) No 1601/92 of 15 June 1992 concerning specific measures for the Canary Islands with regard to certain agricultural products (3), as last amended by Commission Regulation (EEC) No 1974/93 (4), and in particular Article 3 (2) thereof;
Whereas certain intervention agencies hold substantial stocks of beef bought into intervention; whereas an extension of the storage period for that beef should be avoided on account of the ensuing high costs;
Whereas Commission Regulation (EC) No 2883/94 of 28 November 1994, establishing a forecast balance for the supply to the Canary Islands of agricultural products covered by the specific measures provided for in Articles 2, 3, 4 and 5 of Council Regulation (EEC) No 1601/92 (5), lays down the forecast supply balance for frozen meat of bovine animals for the period 1 July 1994 to 30 June 1995; whereas, in the light of traditional trade patterns, it is appropriate to release intervention beef for the purpose of supplying the Canary Islands during that period;
Whereas Article 3 of Commission Regulation (EC) No 2790/94 of 16 November 1994 laying down common detailed rules for the implementation of Council Regulation (EEC) No 1601/92 concerning specific measures for the Canary Islands with regard to certain agricultural products (6), as amended by Regulation (EC) No 2883/94, provides for the use of aid certificates issued by the competent Spanish authorities for supplies from the Community; whereas, in order to improve the operation of the abovementioned arrangements, certain derogations from that Regulation should be provided for, in particular, with regard to the application for and the issue of aid certificates;
Whereas for the purpose of purchase and control procedures, it is appropriate to apply certain provisions of Commission Regulation (EEC) No 2173/79 of 4 October 1979 on detailed rules of application for the disposal of beef bought in by intervention agencies and repealing Regulation (EEC) No 216/69 (7), as last amended by Regulation (EEC) No 1759/93 (8), and Commission Regulation (EEC) No 3002/92 of 16 October 1992 laying down common detailed rules for verifying the use and/or destination of products from intervention (9), as last amended by Regulation (EEC) No 1938/93 (10);
Whereas it is necessary to provide for the lodging of a security to guarantee that the beef arrives at the intended destination;
Whereas Commission Regulation (EC) No 2497/94 (11) should be repealed;
Whereas the measures provided for in this Regulation are in accordance with the opinion of the Management Committee for Beef and Veal,
HAS ADOPTED THIS REGULATION:
Article 1
1. A sale shall be organized of approximately:
- 1 500 tonnes of boneless beef held by the Irish intervention agency,
- 200 tonnes of boneless beef held by the Italian intervention agency.
2. This meat shall be sold for delivery to the Canary Islands.
3. The qualities and selling prices of the products are given in Annex I hereto.
Article 2
1. Subject to the provisions of this Regulation, the sale shall take place in accordance with the provisions of Regulation (EEC) No 2173/79, and in particular Articles 2 to 5 thereof, Regulation (EEC) No 3002/92 and Regulation (EC) No 2790/94.
2. The intervention agencies shall sell those products which have been in storage longest first.
Particulars of the quantities and places where the products are stored shall be made available to interested parties at the addresses given in Annex II.
Article 3
1. After receiving a purchase application, the agency shall only conclude the contract after having checked with the competent Spanish agency referred to in Annex III that the quantity concerned is available within the forecast supply balance.
2. The Spanish agency shall immediately reserve for the applicant the quantity requested until receipt of the application for the relevant aid certificate. Notwithstanding Article 6 (1) of Regulation (EC) No 2790/94, the certificate application must be accompanied only by the original of the purchase invoice issued by the seller intervention agency or by a certified copy.
3. Notwithstanding Article 3 (1) of Regulation (EC) No 2790/94, the aid may not be paid for meat sold pursuant to this Regulation.
4. Notwithstanding Article 3 (4) (b) of Regulation (EC) No 2790/94, in box 24 of the aid certificate application and of the aid certificate shall be entered: 'aid certificate for use in the Canary Islands - no aid to be paid'.
Article 4
Notwithstanding the second subparagraph of Article 2 (2) of Regulation (EEC) No 2173/79 purchase applications shall not indicate the store or stores where the meat applied for is being kept.
Article 5
Notwithstanding Article 15 (1) of Regulation (EEC) No 2173/79, the security shall be ECU 3 000 per tonne of boneless beef. The guarantee for fillets, however, shall be ECU 7 000 per tonne.
Delivery of the products concerned to the Canary Islands shall be a primary requirement within the meaning of Article 20 of Commission Regulation (EEC) No 2220/85 (12).
Article 6
In the removal order referred to in Article 3 (1) (b) of Regulation (EEC) No 3002/92 and the T5 control copy shall be entered:
« Carne de intervención destinada a las islas Canarias - Sin ayuda [Reglamento (CE) no 3082/94] »;
»Interventionskoed til De Kanariske OEer - uden stoette (Forordning (EF) nr. 3082/94)«;
"Interventionsfleisch fuer die Kanarischen Inseln - ohne Beihilfe (Verordnung (EG) Nr. 3082/94)";
«Kreas apo tin paremvasi gia tis Kanarioys Nisoys - choris enischyseis [Kanonismos (EK) arith. 3082/94]»;
'Intervention meat for the Canary Islands - without the payment of aid (Regulation (EC) No 3082/94)';
« Viandes d'intervention destinées aux îles Canaries - Sans aide [règlement (CE) no 3082/94] »;
« Carni in regime d'intervento destinate alle isole Canarie - senza aiuto [Regolamento (CE) n. 3082/94] »;
"Interventievlees voor de Canarische eilanden - zonder steun (Verordening (EG) nr. 3082/94)";
« Carne de intervençao destinada às ilhas Canárias - sem ajuda [Regulamento (CE) nº 3082/94] ».
Article 7
Regulation (EC) No 2497/94 is hereby repealed.
Article 8
This Regulation shall enter into force on the seventh day following its publication in the Official Journal of the European Communities.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 16 December 1994.
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Council Decision
of 22 December 2003
on the conclusion of an Agreement in the form of an Exchange of Letters between the European Community and the Kingdom of Morocco concerning reciprocal liberalisation measures and the replacement of Protocols 1 and 3 to the EC-Morocco Association Agreement
(2003/914/EC)
THE COUNCIL OF THE EUROPEAN UNION,
Having regard to the Treaty establishing the European Community, and in particular Article 133, in conjunction with the first sentence of Article 300(2) thereof,
Having regard to the proposal from the Commission,
Whereas:
(1) Article 16 of the Euro-Mediterranean Agreement establishing an association between the European Communities and their Member States, of the one part, and the Kingdom of Morocco, of the other part(1), which has been in force since 1 March 2000, provides that the Community and Morocco will gradually implement greater liberalisation of their reciprocal trade in agricultural products.
(2) Article 18 of the Euro-Mediterranean Agreement provides that from 1 January 2000 the Community and the Kingdom of Morocco will assess the situation with a view to determining the liberalisation measures to be applied by the Parties with effect from 1 January 2001.
(3) The Community and the Kingdom of Morocco have agreed to replace Protocols 1 and 3 to the Euro-Mediterranean Agreement by means of an agreement in the form of an Exchange of Letters. That agreement should therefore be approved.
(4) The measures necessary for the implementation of this Decision 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(2),
HAS DECIDED AS FOLLOWS:
Article 1
The Agreement in the form of an Exchange of Letters between the European Community and the Kingdom of Morocco concerning reciprocal liberalisation measures and the replacement of Protocols 1 and 3 to the EC-Morocco Association Agreement in the Annex hereto is hereby approved on behalf of the Community.
The text of the Agreement in the form of an Exchange of Letters is attached to this Decision.
Article 2
The Commission shall adopt the detailed rules for implementing Protocols 1 and 3 in accordance with the procedure laid down in Article 3.
Article 3
1. The Commission shall be assisted by the Management Committee for Sugar established by Article 42 of Regulation (EC) No 1260/2001(3) or, as the case may be, by the committees established by the corresponding provisions of other regulations on the common organisation of markets or by the Customs Code Committee established by Article 248a of Regulation (EEC) No 2913/92(4).
2. Where reference is made to this paragraph, Articles 4 and 7 of Decision 1999/468/EC shall apply.
The period referred to in Article 4(3) of Decision 1999/468/EC shall be set at one month.
3. The Committee shall adopt its own rules of procedure.
Article 4
The President of the Council is hereby authorised to designate the person empowered to sign the Agreement in the form of an Exchange of Letters in order to bind the Community.
Article 5
This Decision shall be published in the Official Journal of the European Union.
Done at Brussels, 22 December 2003.
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COMMISSION REGULATION (EEC) No 1197/92 of 8 May 1992 amending Regulation (EEC) No 1726/70 on the procedure for granting the premium for leaf tobacco
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Economic Community,
Having regard to Council Regulation (EEC) No 727/70 of 21 April 1970 on the common organization of the market in raw tobacco (1), as last amended by Regulation (EEC) No 860/92 (2), and in particular the first subparagraph of Article 3 (3) and Article 15 thereof,
Whereas, in accordance with the European cultivation contract as set out in the Annex to Commission Regulation (EEC) No 1726/70 of 25 August 1970 on the procedure for granting the premium for leaf tobacco (3), as last amended by Regulation (EEC) No 2376/91 (4), tobacco produced in excess of the yield indicated for the variety concerned in the Annex to Commission Regulation (EEC) No 2501/87 of 24 June 1987 fixing the characteristics of each variety of tobacco grown in the Community (5), as last amended by Regulation (EEC) No 841/92 (6), is not covered by the contract and accordingly cannot qualify under the support measures laid down by Community regulations;
Whereas the limit on yields provided for in the European cultivation contract may easily be circumvented if there is no check to see that the variety indicated is actually grown on areas declared; whereas a minimum rate of checks on areas cultivated, to be conducted by the Member States, should accordingly be determined and the consequences of any irregularities recorded should be specified; whereas such consequences should be sufficiently dissuasive to prevent any false declaration being made and should observe the principle of proportionality;
Whereas contracts of cultivation must be concluded and registered sufficiently early to permit national authorities to conduct on-the-spot checks,
HAS ADOPTED THIS REGULATION:
Article 1
Regulation (EEC) No 1726/70 is hereby amended as follows:
1. the following Article is inserted:
'Article 2c
1. The Member States shall conduct unannounced on-the-spot checks to verify the information given in cultivation contracts and declarations and in particular the area and variety cultivated. Such checks shall cover at least 5 % per variety or group of varieties of the cultivation contracts and declarations registered in respect of each processing enterprise; contracts and declarations subject to checks must be representative of the quantities covered. Areas cultivated, excluding in particular the area of service roads and enclosures, shall be verified, where necessary, by measuring.
2. Where checks show that areas declared exceed areas cultivated by up to 10 %, the area to be used for the contract or declaration in question shall be that determined by the check. If the amount in excess is over 10 % or one hectare, the area to be used for the contract or declaration in question shall be that determined by the check, less the declared area in excess, multiplied by two, except where the grower or processor has reported discrepancies in writing to the competent authorities before the check was conducted.
3. If checks cannot be conducted for reasons for which the grower is responsible, the area shall, except in cases in force majeure, be considered as not cultivated.
4. The Member States shall take any further measures necessary for the application of this Regulation and in particular steps to prevent more than one cultivation contract or declaration being concluded or made in respect of one and the same area. The Commission shall be informed of such measures.';
2. the date '1 August' in the first and second indents of the first subparagraph and in the second subparagraph of Article 2b (5) is replaced by '20 June';
3. point 12 of the Annex is replaced by the following:
'12. The purchaser/vendor (1) (2) shall register this contract with . . . . . . (name of agency) before . . . . . . and shall notify that agency each year before . . . . . . of any change in areas resulting from any revision of this contract (3).';
4. the following footnote is added to the Annex:
'(3) Indicate the date as set out in Article 2c (5) of Regulation (EEC) No 1726/70 and the name of the competent agency.'
Article 2
This Regulation shall enter into force on the third day following its publication in the Official Journal of the European Communities. This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 8 May 1992.
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COMMISSION DECISION
of 28 November 2006
amending Decision 2005/393/EC as regards restricted zones in relation to bluetongue
(notified under document number C(2006) 5607)
(Text with EEA relevance)
(2006/858/EC)
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Council Directive 2000/75/EC of 20 November 2000 laying down specific provisions for the control and eradication of bluetongue (1), and in particular Article 8(3) thereof,
Whereas:
(1)
Directive 2000/75/EC lays down control rules and measures to combat bluetongue in the Community, including the establishment of protection and surveillance zones and a ban on animals leaving those zones.
(2)
Commission Decision 2005/393/EC of 23 May 2005 on protection and surveillance zones in relation to bluetongue and conditions applying to movements from or through these zones (2) provides for the demarcation of the global geographic areas where protection and surveillance zones (the restricted zones) are to be established by the Member States in relation to bluetongue.
(3)
On 3 November 2006 Portugal informed the Commission that serotype 4 virus has been detected as circulating in a number of peripheral areas of restricted zone E. Consequently that zone should be extended, taking into account the data available on the ecology of the vector and the current meteorological situation.
(4)
Following the notification of outbreaks of bluetongue in mid-August and early September 2006 by Belgium, Germany, France and the Netherlands, the Commission has amended several times Decision 2005/393/EC as regards the demarcation of the restricted zone concerned.
(5)
On 6 November 2006 Germany informed the Commission of new outbreaks of bluetongue in North-Rhine-Westphalia, Rhineland-Palatinate and Lower Saxony. In view of those findings, it is appropriate to amend the demarcation of the restricted zone in Germany and France.
(6)
On 6 November 2006 Italy also informed the Commission that serotype 1 virus has been detected as circulating for the first time in Cagliari province in the Sardegna region already located in the restricted zone C. Consequently, in view of those new findings, it is appropriate to insert a new restricted zone including the affected area.
(7)
Decision 2005/393/EC should be amended accordingly.
(8)
The measures provided for in this Decision are in accordance with the opinion of the Standing Committee on the Food Chain and Animal Health,
HAS ADOPTED THIS DECISION:
Article 1
Annex I to Decision 2005/393/EC is amended in accordance with the Annex to this Decision.
Article 2
This Decision is addressed to the Member States.
Done at Brussels, 28 November 2006.
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COMMISSION REGULATION (EC) No 2078/94 of 18 August 1994 laying down definitive measures on the issuing of STM licences for beef and veal in trade with Spain
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to the Act of Accession of Spain and Portugal, and in particular Article 85 (3) thereof,
Whereas Commission Regulation (EEC) No 1112/93 of 6 May 1993 laying down detailed rules for the application of the supplementary trade mechanism in the beef and veal sector between the Community as constituted on 31 December 1985 and Spain and Portugal and repealing Regulations (EEC) No 3810/91 and (EEC) No 3829/92 (1), as last amended Regulation (EC) No 936/94 (2), set the indicative ceilings applicable in the beef and veal sector and the maximum quantities for which STM licences may be issued every two months;
Whereas STM licences issued in response to applications lodged on 26 July 1994 in Spain have exhausted that fraction of the indicative ceiling set aside for the fourth two months of 1994 for live animals;
Whereas the Commission accordingly adopted, by an emergency procedure, appropriate interim protective measures by Regulation (EC) No 1835/94 (3); whereas definitive measures must be adopted;
Whereas, as a definitive measure as referred to in Article 85 (3) of the Act of Accession, the issue of STM licences should be definitively discontinued in order to prevent any disturbance on the market;
Whereas the measures provided for in this Regulation are in accordance with the opinion of the Management Committee for Beef and Veal,
HAS ADOPTED THIS REGULATION:
Article 1
1. The issue of STM licences is hereby suspended until 5 September 1994 for live animals of the bovine species, other than purebred breeding animals and animals for bullfights.
2. Further applications for STM licences may be lodged from 5 September 1994.
Article 2
This Regulation shall enter into force on the third day following its publication in the Official Journal of the European Communities.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 18 August 1994.
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COUNCIL REGULATION (EEC) No 3561/80 of 22 December 1980 on the application of Decision No 3/80 of the EEC-Finland Joint Committee amending Protocol 3 concerning the definition of the concept of "originating products" and methods of administrative cooperation to take account of the accession of the Hellenic Republic to the Community
THE COUNCIL OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Economic Community, and in particular Article 113 thereof,
Having regard to the proposal from the Commission,
Whereas the Agreement between the European Economic Community and the Republic of Finland [1], was signed on 5 October 1973 and entered into force on 1 January 1974;
[1] OJ No L 328, 28.11.1973, p. 2.
Whereas the Agreement between the Member States of the European Coal and Steel Community and the European Coal and Steel Community on the one hand and the Republic of Finland on the other hand [2], was signed on 5 October 1973 and entered into force on 1 January 1975;
[2] OJ No L 348, 27.12.1974, p. 1.
Whereas by virtue of Articles 11 and 9 respectively of the Protocols which were annexed to the above Agreements following the accession of the Hellenic Republic to the Community, and which form an integral part thereof, the EEC-Finland Joint Committee
has adopted Decision No 3/80 amending Protocol 3 to take account of the accession of the Hellenic Republic to the Community;
Whereas it is necessary to apply this Decision in the Community,
HAS ADOPTED THIS REGULATION: Article 1
For the application of the Agreement between the European Economic Community and the Republic of Finland, Joint Committee Decision No 3/80 shall be applied in the Community.
The text of the Decision is annexed to this Regulation.
Article 2
This Regulation shall enter into force on 1 January 1981.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 22 December 1980.
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*****
COMMISSION REGULATION (EEC) No 2777/88
of 7 September 1988
amending Regulation (EEC) No 2083/80 laying down detailed rules of application concerning the economic activity of producer groups and associations thereof
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Economic Community,
Having regard to Council Regulation (EEC) No 1360/78 of 19 June 1978 on producer groups and associations thereof (1), as last amended by Regulation (EEC) No 1760/87 (2), and in particular the second indent of Article 6 (3) thereof,
Whereas Commission Regulation (EEC) No 2083/80 (3), as last amended by Regulation (EEC) No 559/88 (4), lays down detailed rules of application concerning the economic activity of producer groups and associations thereof; whereas these rules must be supplemented following extension of the applicability of Regulation (EEC) No 1360/78 to Portugal;
Whereas holdings in Portugal are, typically, small, fragmented and unspecialized, and have a low average productivity; whereas low minima should therefore be set for the dimensions of producer group operations; whereas turnover is a suitable criterion for judging the efficiency of associations of producer groups in certain sectors where, in view of the difficulties of exhaustive determination of specific minimum crop areas, a single basis of reference should be used; whereas the fact that 'alentejano de montado' pigs are extensively-reared makes estimating national production difficult and whereas the minimum share of national production volume required of associations in this sector should therefore not be set; whereas in order to guarantee that associations are of adequate economic size a minimum number of member groups should be set;
Whereas the measures provided for in this Regulation are in accordance with the opinion of the Standing Committee on Agricultural Structure,
HAS ADOPTED THIS REGULATION:
Article 1
Regulation (EEC) No 2083/80 is hereby amended as follows:
1. The final paragraph of Article 3 is replaced by the following:
'In the case of Spain and Portugal, by way of derogation from the above provisions of this Article, associations must account for a minium crop area, turnover and share of national production as indicated in Sections III and IV of the Annex. In the case of Spain, both where products listed in the Annex and other products are concerned, associations must consist of at least five recognized groups and cover the territory of at least one Autonomous Community. In the case of Portugal, associations must consist of at least the number of recognized groups indicated in Section IV of the Annex, and of at least three recognized groups for other products, and cover the territory of at least one "district".'
2. The table relating to Portugal annexed to this Regulation is inserted in the Annex before the footnotes.
Article 2
This Regulation shall enter into force on the third day following its publication in the Official Journal of the European Communities.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 7 September 1988.
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COMMISSION DECISION
of 15 October 2003
on ad hoc measures implemented by Portugal for RTP
(notified under document number C(2003) 3526)
(Only the Portuguese version is authentic)
(Text with EEA relevance)
(2005/406/EC)
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community, and in particular the first subparagraph of Article 88(2) thereof,
Having regard to the Agreement on the European Economic Area, and in particular Article 62(1)(a) thereof,
Having called on interested parties to submit their comments pursuant to the provisions cited above (1) and having regard to their comments,
Whereas:
I. PROCEDURE
(1)
By three complaints submitted in 1993, 1996 and 1997 by the commercial broadcaster SIC, the Commission was informed that Portugal had implemented a number of ad hoc measures and annual compensation measures in favour of the Portuguese public broadcaster RTP.
(2)
By letter dated 15 November 2001, the Commission informed Portugal that it had decided to initiate the procedure laid down in Article 88(2) of the EC Treaty in respect of a number of ad hoc measures granted to RTP.
(3)
The Commission's decision to initiate the procedure was published in the Official Journal of the European Communities (2). The Commission invited interested parties to submit their comments.
(4)
The Commission received observations from the Portuguese authorities by letters of 28 and 31 January 2002. It subsequently received comments from several interested parties.
(5)
Comments were received by letters of 8 February and 9 May 2002 from the complainant SIC, by letter of 8 May 2002 from the Portuguese commercial broadcaster TV1, by letter of 9 May 2002 from the Association of Commercial Broadcasters (ACT) and by letter of 12 June 2002 from the Italian commercial broadcaster Mediaset. The Commission received further letters on the case from SIC on 16 May and 4 August 2003.
(6)
The Commission forwarded the comments to the Portuguese authorities, which reacted by letter dated 25 March 2003. By letter of 29 July 2003, the Portuguese authorities replied to the additional questions put by the Commission.
(7)
The present decision will deal only with the ad hoc measures covered by the decision to initiate the procedure. Accordingly, it focuses on the financial relationship between RTP and Portugal in the period 1992 to 1998.
(8)
Like the decision to initiate the procedure, the present decision does not deal with questions relating to the legal classification and compatibility with the Treaty of the annual compensation payments granted to RTP. Since, on a preliminary basis, those measures are regarded as existing aid, they are being dealt with in a separate procedure under Article 17 of Council Regulation (EC) No 659/1999 (3).
(9)
However, in order to have a complete picture of the financial relationship between the Portuguese State and RTP over the period covered by the present investigation, the Commission has to take into consideration not only the ad hoc measures but also the financial support granted to RTP by means of annual compensation payments. Accordingly, in the present decision, the Commission will refer to the annual compensation payments only to the extent necessary to clarify its reasoning on the ad hoc measures.
II. DETAILED DESCRIPTION OF THE ISSUES AT STAKE
(10)
The annual compensation payments constitute the main mechanism for compensating RTP. In the period 1992 to 1998 RTP received annual compensation payments totalling PTE 66 495 million to cover the costs of its public service obligations. The legal basis for the compensation payments is Article 5 of Law No 21/92 (4).
(11)
Table 1 gives a breakdown of the annual compensation payments granted to RTP in the period covered by the present decision.
Table 1
Amount of annual compensation payments from 1992 to 1998
(PTE million
1992
1993
1994
1995
1996
1997
1998
6 200
7 100
7 145
7 200
14 500
10 350
14 000
Source: Council of Ministers Resolutions No 18/92, No 21/93, No 19/94, No 25-A/95, No 97/96, No 83/97 and No 1/99.
(12)
RTP was exempted from the payment of registration charges amounting to PTE 33 million on registration of the legal transformation of RTP into a limited company. Under Portuguese law any legal subject has normally to pay taxes for the constitution of a company, the amendment of statutes or modifications to the company.
(13)
The legal basis for the exemption is Article 11(1) of Law No 21/92, which provides that:
‘The statutes of RTP SA […} are hereby approved; they do not need to be converted to a deed, but shall be automatically registered, free of duties and expenses, on the basis of the Official Journal of the Republic (Diário de República) in which they are published.’
(14)
Article 11(1) is derived from Law No 84/88, Article 1 of which provides that public undertakings, even if nationalised, can be converted by decree-law into public limited companies. Such a decree-law constituted the act approving the statutes of the limited company and was sufficient to comply with all registration requirements (5).
(15)
Furthermore, under Article 11(2) of Law No 21/92, RTP was exempted from paying other registration fees directly linked to the modification of the legal nature of the company.
(16)
Article 11(2) is derived from Decree-Law No 404/90 (6), on the basis of Article 1 of which undertakings that, up to 31 December 1993, performed acts of cooperation or concentration could be granted exemption from transfer tax on the fixed assets necessary for such concentration or cooperation as well from the emoluments and other legal charges payable for the performance of those acts.
(17)
With the opening-up of the Portuguese television market it was decided to hive off the television signals network from the broadcasting activities of RTP and to create a separate legal entity ‘Teledifusora de Portugal’ (TDP) with a capital of PTE 5 400 million (7). The value of the new entity was established by two independent institutions, Banco Nacional Ultramarino (BNU) and Banco Português de Investimento (BPI) (8).
(18)
In 1993 the State acquired from RTP the TDP broadcasting network for PTE 5 400 million (this figure was the result of an independent valuation), which corresponded to the value of the assets that had been hived off (9).
(19)
An overview is given below of the context in which the agreements were concluded. The developments in the ownership of Portugal Telecom will be described, as well as the rates charged and the agreements reached with RTP.
(20)
Between 1991 and 1994 the television broadcasting network was owned by the public company TDP SA. After 1994 the network was owned by Portugal Telecom, a company created from the combination of Telecom Portugal SA, Telefones de Lisboa e Porto SA and TDP SA. After the creation of Portugal Telecom, the State periodically decreased its holding in the company. In 1995 26,3 % was sold in a public offering. A second tranche was auctioned in June 1996, bringing state ownership down to 51 %. State ownership was further reduced to 25 % in mid-1997 and to 10,5 % in mid-1999. The company is now privatised (10).
(21)
Law No 58/90 explicitly determines that private operators can lose their broadcasting licence if they do not pay the network fee on time (11).
(22)
There has been no difference in the rates charged by the network operator to RTP and to private television operators. In fact, it is forbidden by law to charge different rates to the public broadcaster RTP and to private broadcasters that use the network (12). Until 1997 the level of the rates charged by the network operator was based on legally determined parameters (13). Since 1997 an agreement between the Media Institute, the Director-General for Trade and Competition and Portugal Telecom laid down the maximum prices chargeable by Portugal Telecom for distributing the television signal.
(23)
RTP had to pay an annual fee for the use of the broadcasting network to the owner (14). It has always challenged the level of the fee as the annual fee was equal to more than half of the value of the network when it was hived off. Although RTP entered as liabilities all the costs of the broadcasting network, including interest for late payment, it did not pay the fees on time.
(24)
The network is indispensable for RTP to broadcast its programmes. Furthermore, RTP is one of the main users of the network (alongside the commercial operator SIC).
(25)
In the period 1992 to 1998 the network operator accepted late payment of the fee by RTP and several agreements were concluded between RTP and Portugal Telecom on debt rescheduling (15). After 1998 debt rescheduling agreements have also been concluded between the two companies. In an agreement of 31 May 2001 RTP’s accumulated debt to Portugal Telecom was consolidated, including the amount represented by interest on late payment. At the time, the two companies reached agreement that the total debt would be paid in ten half-yearly instalments with 30 June and 30 December as the due dates each year.
(26)
On 3 July 2003 ANACOM, the body currently responsible for the pricing rules for the television broadcasting network, ruled that Portugal Telecom had to reduce its 2002 prices onwards by 14 % plus an additional 1,2 % from January 2003.
(27)
Portugal Telecom is obliged under its telecommunication concession to provide the broadcasting and distribution service for telecommunication signals. Its universal service obligation, whose negative profit margin can be compensated for by the State, does not include the provision of a television signal distribution service to RTP (16).
(28)
In the period 1983 to 1989 RTP built up a debt to the social security scheme of PTE 2 189 million arising from failure to pay social security contributions. The background of the debt was a dispute between RTP and social security on the interpretation on the social security deductions for overtime and artists fees.
(29)
The social security's interpretation was laid down in Article 2(e) of Implementing Decree No 12/83 of 12 February 1983. In order to avoid legal proceedings, the two parties reached an agreement under which social security would waive its interest claim for late payment and accept a rescheduled payment of the debt. Following the settlement of the legal dispute, the Implementing Decree was never revoked.
(30)
On 6 May 1993 a joint decree of the Ministry of Finance and the Ministry of Social Security formally authorised the rescheduling of the debt into 120 monthly instalments and waived the fines and interest due for the amount of PTE 1 206 million.
(31)
The conditions for authorising exceptional arrangements for settling debts owed to the social security scheme are laid down in Decree-Law No 411/91, according to Article 2(1) of which the authorisation must be indispensable in order to guarantee the viability of the debtor and the arrangements may be applied inter alia on the ground that, as provided for in (d), the indebted undertaking ‘has been the subject of occupation, worker self-management or state intervention’.
(32)
In 1994 RTP issued bonds totalling PTE 5 000 million. According to the issue prospectus, however, RTP itself guaranteed payment of the debt with its own revenue.
(33)
On 18 September 1996 a protocol on cinema promotion was concluded between RTP and the Ministry of Culture that specified RTP's obligations in terms of support for cinema production but did not provide for any specific ad hoc financing for RTP in respect of its obligation to support the cinema.
(34)
RTP carried out a study on the possibilities for restructuring the company in the period 1996 to 2000. The study did not lead to any financial commitment on the part of the State.
(35)
In the period 1994 to 1997 the State increased the capital of RTP each year. The table below gives an overview of the different capital increases, which amount to PTE 46 800 million.
Table 2
Increases in RTP's share capital 1994 to 1997
(PTE million)
Year
1994
1995
1996
1997
Increase in share capital
10 000
12 800
10 000
14 000
Share capital as at 31 December
22 708
35 508
45 508
59 508
Source: Balance sheets of RTP.
(36)
The public service contracts that the Portuguese State concluded with RTP provide for state participation in investments made by RTP, preferably in the form of capital increases (17).
(37)
In December 1998 a contract was concluded for a subordinated loan between the Public Debt Stabilisation Fund (Fundo de Regularização da Dívida Pública) and RTP laying down the conditions of a loan of PTE 20 000 million to increase RTP's capital.
(38)
The Public Debt Stabilisation Fund is managed by the Public Debt Management Institute (Instituto de Gestão de Crédito Público), which is responsible for managing the debt of the Portuguese State and for implementing the central borrowing programme, in accordance with the Public Debt Law (18) and the guidelines laid down by the Government. The Institute is subject to the authority and supervision of the Ministry of Finance (19).
(39)
From the date on which the sums were available to RTP the loan was subject to annual interest payments at the 12-month Lisbor rate, calculated on the first date of each period, plus 20 basis points (20).
(40)
According to the contract, the loan was to be reimbursed on 31 December 2003 but could be extended for one or two years by mutual agreement. RTP did not pay interest on the loan, as the loan contract stipulates that the interest payable on the first four annual payments should be capitalised (21).
(41)
The contract between the Public Debt Stabilisation Fund and RTP was drawn up in accordance with the guidelines set out in a joint resolution of the State Secretaries for the Media, for the Treasury and for Finance on 17 December 1998.
(42)
The Portuguese public broadcaster RTP was set up on the Government's initiative by an act of 15 December 1955 following its decision to establish a public company that would be awarded a concession for the provision of public service television broadcasting (22).
(43)
RTP had a monopoly position on the broadcasting market until the 1980s. In the 1990s it began to face competition from commercial broadcasters after the State had granted licences in February 1992 to SIC and TVI to broadcast on a third and fourth channel respectively (23).
(44)
The 1992 statutes of RTP, which were set out in Law 21/92 converted the entity into a public limited company (24).
(45)
RTP performs both public service broadcasting activities and commercial broadcasting. It is legally allowed to pursue commercial or industrial activities related to the activity of television (25).
(46)
RTP's commercial activities have been conducted through financial participation in companies that are legally distinct from RTP and have their own structure and accounting system.
(47)
As the table below shows, RTP made losses during the period under investigation. In 1996 its financial situation deteriorated to the extent that its net equity became negative.
Table 3
RTP economic and financial data 1993 to 1998
(PTE million)
1993
1994
1995
1996
1997
1998
Net profits (losses)
(7 883)
(19 558)
(26 581)
(18 512)
(32 223)
(25 039)
Net equity
1 557
8 071
4 269
(4 274)
(20 586)
(50 827)
Assets
39 418
42 262
56 078
67 654
62 340
83 843
Financial debts (26)
22 402
26 855
30 258
44 922
44 885
92 775
Source: RTP's financial accounts.
(48)
RTP has to provide public service television. Different laws prescribe the definition, assignment and financing of that service.
(49)
Law No 58/90, which governs the activity of television broadcasting, laid down the conditions for private broadcasters and the obligation on the State to guarantee public service television broadcasting (27). As regards the statutes of RTP, Law 21/92 defines the main public service obligations and the financing of that service.
(50)
Two public service contracts signed between RTP and the Portuguese State described the public service and its financing in greater detail (28).
(51)
Article 4 of Law No 21/92 states that a concession contract is to be concluded between the State and RTP and specifies the main public service obligations that have to be performed under the contract. Article 4(2) establishes the general principles that RTP has to observe when performing its activity as concessionaire (29), while Article 4(3) outlines the obligations of the public television broadcasting service (30).
(52)
The public service contracts confirm RTP's public service obligations. Firstly, general obligations and obligations relating to programme content are imposed on RTP (31). RTP has to provide a public television service as part of which it has to broadcast two channels and provide the population of mainland Portugal with general coverage. The first channel is of a more general nature and has to offer more general programming. The second channel has to aim more at specific audiences and to provide educational, cultural and scientific programmes. One of the channels has to cover the Autonomous Regions of the Azores and Madeira.
(53)
Secondly, the contracts impose specific programming obligations on RTP (32). Standards are set for programme quality (pluralism, impartial information, etc.) and programme content (new fiction, sport, children, Portuguese culture, domestic news, entertainment). RTP has to allow viewing time for specified entities, to support the cinema and other forms of audiovisual production, to promote the production of educational or training programmes, to exchange programmes with the Autonomous Regions and to promote cooperation with other public service television bodies in the European Union. Furthermore, it has to fulfil specific programming obligations relating to international cooperation. For example, it has to produce programmes for, and broadcast them to, Portuguese communities living abroad and Portuguese-speaking countries in Africa and Macau. It has to ensure the functioning of RTP Madeira and RTP Açores and to maintain its production centres and delegations abroad.
(54)
Thirdly, the contracts impose specific obligations on RTP. For example, RTP has to maintain audiovisual archives, to introduce technological innovations in its equipment and activities, to support the S. Carlos National Theatre Foundation and to provide other services to be specified on an ad hoc basis.
(55)
Article 5 of Law No 58/90 assigned to RTP the concession for public service broadcasting for a period of 15 years, renewable for a further 15 years and covering the frequencies corresponding to the first and second channels. Article 4 of Law No 21/92 stresses that RTP is the concessionaire for public service television broadcasting. Clause 1(a) of the public service contracts confirms that RTP is the provider of the public service television (33).
(56)
The public service contracts (34) provide for the setting up of a Public Opinion Council consisting of representatives from the different sections of public opinion that can intervene in order to assess whether the general and specific public service television broadcasting obligations are being complied with.
(57)
RTP has to provide the Minister for Finance with an activity plan and budget for the public service for the following year, accompanied by opinions issued by the company's board of auditors and the Public Opinion Council. Furthermore, it has to provide a report on the public service obligations during the previous year, accompanied by an opinion of the board of auditors (35).
(58)
The Minister for Finance and the member of the government responsible for the media have to verify compliance with the public service contracts. The Inspector-General of Finances has to audit the financial plan. Furthermore, an annual audit has to be conducted by a specialised auditing firm (36).
(59)
The New Public Service Contract also provides for sanctions to be imposed by the State for breach of contract in the form of fines, seizure, redemption or termination of the contract.
(60)
Article 5 of Law No 21/92 confers on RTP the right to receive state compensation for its public service obligations. This right is confirmed in the public service contracts.
(61)
In addition to the system of annual compensation payments, the public service contracts provide for funding for:
-
the payment of specific services under agreements to provide services signed or to be signed by the public administration and RTP (37);
-
state participation in all investments made by RTP, particularly those for the infrastructures required for the operation of the production and broadcasting centres in the Azores and Madeira, the audiovisual archives and RTP's international broadcasts and other technological investments that RTP is required to make (38).
(62)
In order to determine the costs and revenues of the public service obligations that qualify for compensation payments, RTP applies an analytical accounting system. The contracts specify the criteria for calculating the eligible costs for compensation of each public service obligation (39).
(63)
On the basis of analytical accounting system, RTP allocates costs and revenues (e.g. personnel and equipment) to a defined number of activities (management of programming, direct and indirect programme costs, diffusion costs, emission costs, marketing costs and overheads).
(64)
The direct costs of the different activities are divided between the different cost items (e.g. RTP 1, RTP 2, RTPi and RTP África). The indirect costs are allocated to the cost items on the basis of consistent analytical criteria (e.g. number of broadcasting hours) (40).
(65)
The cost-allocation system has the following characteristics:
-
under the public service contracts, only net operating costs can be compensated for in accordance with the method described in the contracts. The financial cost, the extraordinary expenditure and provisions not directly related to an activity are excluded from compensation (41),
-
in order to calculate the net reimbursable operating costs, RTP has to deduct from the operating cost the operating revenues deriving from each public service obligation,
-
under the Old Public Service Contract, no compensation was possible for the general public service obligation to operate RTP 1 and RTP 2 and to cover the Autonomous Regions with one of the channels (42),
-
under the New Public Service Contract the operating costs of RTP 1 and RTP 2 can be compensated for, but no extra compensation is possible in the event of the real net operating costs of RTP 1 and RTP 2 exceeding the planned cost (43).
(66)
RTP has reported the net cost of providing the public service in the annual public service reports in line with the cost calculation method described above. The table below gives an overview of the costs of each public service activity entitled to receive compensation payments.
Table 4
Net reported and reimbursable costs of the public service
(PTE million)
1992
1993
1994
1995
1996
1997
1998
Teletext
112,9
86,8
Operation of RTP International
882,3
1 517,4
1 826,9
1 890,8
2 059,6
3 999,1
3 712,9
RTP África
-
-
-
-
654,7
1 332,0
Direct broadcasting by RTP 1 to Azores and Madeira
-
-
-
-
-
76,8
295,4
Audiovisual archives
509,1
241,6
402,7
492,7
184,9
909,4
672,1
Cooperation with Portuguese-speaking countries in Africa
186,9
128,4
172,2
148,6
144,9
202,4
200,3
Coverage differential
406,7
1 312,8
1 314,2
1 050,3
1 050,0
622,6
208,6
Delegations/correspondents
797,8
658, 2
681,1
642,7
583,2
457, 2
211,0
S. Carlos National Theatre Foundation
50,0
55,0
60,0
60,0
60,0
60,0
Cinema promotion
215,0
95, 0
27,5
156, 5
391,1
352,8
Operation of autonomous regional centres
3 453,4
3 486,0
3 685,9
3 696,1
3 846,6
3 459,2
2 855,2
Broadcasting for specific entities
482,0
350,6
151,1
94,6
80,8
Sport TV (44)
- 440,0
Net operating costs of RTP 1
16 946,1
11 916,6
Net operating costs of RTP 2
9 050,6
10 080,6
8 637,6
Total net operating costs
6 718,2
7 960,0
8 384,1
8 103,3
17 217,1
37 972,1
30 101,3
Source: Portuguese authorities and public service reports.
(67)
The table below gives an overview of RTP investments in equipment for public service activities. It presents both the real investments in public service activities, as shown in the annual financial accounts, and the investments reported in the public service reports. It will be noted that the real investments in public service activities were higher than the investments reported in the public service reports.
Table 5
Investments in public service activities
(PTE million)
1992
1993
1994
1995
1996
1997
1998
Total
Financial accounts
2 632,6
2 102,0
2 763,9
992,7
1 480,4
4 037,4
6 054,2
20 063,2
Public service reports
2 327,3
98,0
1 975,1
154,4
28,1
4 037,4
6 127,8
14 748,1
Difference
305,3
2 004,0
788,8
838,3
1 452,3
0
- 73,6
5 315,1
Source: RTP financial accounts and public service reports.
(68)
The objective of the measures was to compensate RTP for the public service obligations imposed on it and to finance its investments.
(69)
In Portugal the public service operator was not selected as a result of a procedure in which all interested undertakings had the opportunity to state the amount of compensation they would need to operate a public service television broadcasting concession. RTP was appointed by the Government to provide public service television.
(70)
Since 1992, both commercial and public service broadcasters have been active in the Portuguese television market. Apart from RTP, the commercial broadcasters SIC and TVI are licensed to broadcast television channels. SIC was the first private operator to start broadcasting on 6 October 1992. The measures in favour of RTP could have the effect of distorting competition in the television broadcasting market.
(71)
The Commission initiated the procedure following a judgment by the Court of First Instance in 2000 (45) which annulled the Commission's 1996 decision (46).
(72)
Furthermore, considering the duration of its preliminary assessment and its doubts as to the proportionality of the financing of RTP's reimbursable public service costs, the Commission initiated the procedure following complaints made by SIC in 1996 and 1997. The measures objected to were a payment by the State for the hiving-off of the television broadcasting network, a bond issue, cinema promotion, the 1996 to 2000 restructuring plan, capital injections in the period 1994 to 1997 and a loan.
(73)
When initiating the formal investigation procedure, the Commission, taking into account the total reimbursable public service costs of RTP in the period 1992 to 1998, expressed doubts as to whether the Portuguese State did not overcompensate for the net public service costs of RTP.
III. COMMENTS FROM INTERESTED PARTIES
(74)
Following the initiation of the investigation procedure, several interested parties commented on the measures. Below is an overview of the relevant comments from these parties on each measure.
(75)
SIC and TVI argued that the exemptions from registration charges are an exception to the rules normally applicable to any change in a company's statutes. SIC commented that the measure is not limited to the creation of RTP. On the basis of Article 11(2) of its statutes, RTP enjoys a general exemption from the payment of taxes and charges for any kind of registration.
(76)
TVI commented that RTP was also exempt from any costs linked to the publication of the deed.
(77)
As regards the facilities for paying the fee for use of the television broadcasting network, the interested parties commented that it should be made clear whether interest was actually charged and at what rate and whether any payments were made to Portugal Telecom. Furthermore, clarification should be provided on RTP's current level of indebtedness towards Portugal Telecom.
(78)
SIC and TVI commented on the rescheduling of debt due to the social security scheme. They argued that RTP was allowed to amortise that debt on different terms from those applicable to other undertakings under Decree-Law No 411/91. ACT underlined the central role of the State in the agreement.
(79)
As regards the sale of the television network, ACT and TVI commented that an accountancy and economic analysis of the value of the assets of the newly created company TDP should be carried out to determine whether there had been any overcompensation. On this issue Mediaset and ACT stated that the television network has been created thanks to state financing and not by the operator itself. They therefore questioned whether the compensation to RTP for this state asset was justified.
(80)
As regards the bond issue, SIC stressed that, in view of RTP's financial situation, it was only because the State is 100 % owner of the shares that the bond was accepted on the market. Furthermore, Mediaset observed that the Commission should look at the substance of any guarantee rather than the form.
(81)
As to the protocol on cinema promotion, SIC commented that the State had undertaken to provide compensation each year for the costs of the public service obligation, including cinema promotion. This thus represented double financing for RTP for the same aim. TVI commented that similar protocols have been signed with private broadcasters but that only RTP receives state support. Furthermore, TVI argued that the 1996 protocol on cinema promotion was replaced in 2000, with RTP having to cofinance as a co-producer all film projects receiving financing from ICAM (Cinema, Audiovisual and Multimedia Institute). On this issue Mediaset observed that, in so far as the terms of funding require the public broadcaster to participate in co-productions with independent producers, it is necessary to ensure that such participation does not confer an indirect benefit on the public operator in its relationship with such film producers.
(82)
As regards the capital injections in 1994 to 1997, SIC, ACT, Mediaset and TVI commented that no rational shareholder would have increased the capital of a company with the characteristics of RTP. The capital injections benefited a company with a huge deficit but without a coherent restructuring plan for restoring viability.
(83)
SIC also argued that, given the situation of technical bankruptcy in which RTP found itself in 1996, no financial institution would have approved a loan for it.
(84)
Mediaset and ACT requested that greater emphasis be placed during the investigation procedure on the independent supervision of the delivery of the public service remit. The commercial broadcasters SIC and TVI commented that the Commission should conclude that the measures constituted incompatible state aid as the public funds granted to RTP were disproportionate.
IV. COMMENTS FROM PORTUGAL
(85)
As regards the exemption from registration charges, the Portuguese authorities commented that, since it was not necessary to issue a public deed formalising the act of conversion of the public undertaking into a public limited company, no basis existed for the collection of the respective taxes and emoluments.
(86)
As regards the comments of SIC on Article 11(2) of Law No 21/92, they responded that the Portuguese legislator did not grant public undertakings specific tax benefits in the event of business conversion or restructuring. The exemption was based on Decree-Law No 404/90.
(87)
As regards late payment of amounts payable for use of the network, the Portuguese authorities claim that the rescheduling of debt by Portugal Telecom was a common strategy in commercial relations between creditor and debtor and did not result from intervention by the State.
(88)
The Portuguese authorities claim that the background to the initial agreement between the social security scheme and RTP on the rescheduling of debt and the waiver of interest and fines was a legal dispute surrounding the constitutionality of Implementing Decree No 12/83, which governs social security contributions in connection with remuneration for overtime. The agreement acknowledged RTP's interpretation - confirmed by a tax specialist - that the remuneration was not subject to social security contributions.
(89)
Secondly, the authorities claim that the formal authorisation of this agreement by the Government did not confer a specific financial advantage on RTP compared with other undertakings in similar circumstances under Decree-Law No 411/91. They maintain that the derogation of Article 2(1)(d) applies to RTP as it was the subject of state intervention and experienced various vicissitudes under the management of an administrative commission appointed by the Government in 1977 (47). According to the Portuguese authorities, the general nature is underlined by the fact that an arrangement has been made with one of the interested parties on the basis of the same law.
(90)
As regards the payment for the hiving-off of the television network, the Portuguese authorities commented in 1993 that the funding was directly linked to the process of splitting off and selling the network for carrying and transmitting television signals. The State purchased TDP from RTP. Since it paid for the purchase by increasing RTP's capital by an amount exactly equal to the value of the assets that had been hived off, the measure does not constitute state aid.
(91)
As regards the bond issue accompanied by a state guarantee the Portuguese authorities argued that this shareholder loan did not involve any guarantee by the Portuguese State, as demonstrated by the technical documents relating to the matter.
(92)
As regards the 1996 protocol on cinema promotion, the Portuguese authorities commented that it clarifies and lays down the terms of RTP's public service obligation to support and promote cinema production. Under the protocol, RTP was required to co-finance ‘projects receiving financial support’ that had been pre-selected by the responsible government body. According to the Portuguese authorities, the terms of the protocol concluded with RTP were not comparable to those concluded with SIC and TVI, as RTP was obliged to co-finance cinematographic works whose television viewing interest might be low or even non-existent. In any case, the value of the subsidy granted by RTP was, as a general rule, far greater than the average value of the rights for showing works suitable for television broadcasting.
(93)
As regards the restructuring plan for the period 1996 to 2000, the Portuguese authorities stated that the plan never got beyond the preparatory study and therefore did not form the basis for any financial support from the State to RTP.
(94)
As regards the loan, the Portuguese authorities commented that the technical conditions attached to it provided that the financial operation should carry interest calculated according to market criteria.
(95)
Furthermore, the Portuguese authorities argued that the capital injections in the period 1994 to 1998 constituted an instrument for financing the costs of providing a public television service, together with payment of the compensatory allowances.
(96)
According to the Portuguese authorities, the financing model chosen to compensate RTP for its public service costs proved inadequate and led to trading deficits. Firstly, the compensatory allowances were always calculated at below the real needs of public service television financing. Secondly, the Portuguese State systematic paid the allowances late. RTP then had to resort to bank financing in order to meet its operating expenditure but could not include the interest and amortisation charges in the calculation of the public service cost. Thirdly, RTP had to pay value added tax (VAT) to the State on the allowances, thereby reducing the net amount of the compensatory allowances.
(97)
The Portuguese authorities claim that (i) the tax exemptions, (ii) the facilities for the payment of the tax on the use of the broadcasting network, (iii) the rescheduling of the debt to the social security scheme (iv) payment for the hiving-off of the television network, (v) the protocol on cinema promotion and (vi) the loan taken out by RTP in 1998 do not fall within the concept of state aid. As regards the compatibility of the other measures, the Portuguese authorities argued that they should be regarded as compensation for public service costs and therefore not as state aid (48) or, alternatively, their compatibility with Community legislation should be assessed in the light of Article 86(2) of the EC Treaty.
(98)
As regards calculation of the overcompensation, the Portuguese authorities argued that:
-
the inclusion in 1996 of the operating costs of RTP 2 as reimbursable public service costs is based on the 1996 Public Service Contract, according to which compensation for RTP 2's operating costs under the Contract took effect from 1 January 1996 onwards (49);
-
the loan of PTE 20 000 million should not be regarded as compensation since it was granted on market terms,
-
the capital increases were also designed to finance investments and not simply to provide financial compensation for reimbursable public service costs. The State's obligation as shareholder to participate in the financing of investments deemed to be necessary is laid down in the 1993 and 1996 Public Service Contracts (50),
-
the compensation payments were subject to VAT, with the result that the net value received by RTP was lower,
-
under the 1996 Public Service Contract, the public service costs were reimbursable only up to the allotted budget.
(99)
In view of the foregoing, the Portuguese authorities concluded that the financial compensation for the public service obligation of RTP should not be regarded as excessive or inappropriate.
V. ASSESSMENT OF THE MEASURES
(100)
In order to ascertain whether the measures constitute aid within the meaning of Article 87(1) of the Treaty, the Commission has to assess whether the measures for RTP:
-
are granted by the State or through state resources,
-
are capable of distorting competition,
-
favour certain undertakings or the production of certain goods,
-
affect trade between Member States.
(101)
Public resources are present in the exemption from registration charges, as a loss of tax revenue is equivalent to the consumption of state resources in the form of fiscal expenditure (51).
(102)
The Commission notes the following regarding the presence of public resources in the acceptance by the broadcasting network operator of RTP's late payments for using the broadcasting network. By accepting non-payment of the network fee and interest, thereby giving rise to accumulated debt during the whole period under investigation, the network operator decided to forgo revenue and may have had to borrow money from the market in order to finance its operations.
(103)
Since Portugal Telecom was gradually privatised during the period under investigation, the Commission has to distinguish between the period during which the State had a majority holding in the company and the period during which it had a minority holding.
(104)
For the period after mid-1997, the Commission considers that any loss of income by Portugal Telecom cannot be regarded as public resources since state involvement in Portugal Telecom was limited to 25 % and was progressively reduced in subsequent years, with other major shareholders acquiring shares in the company (52). Furthermore, as can be seen in paragraph 27, Portugal Telecom could not receive state compensation for possible losses resulting from the acceptance of late payments by RTP. Accordingly, the Commission concludes that after mid-1997 no state resources were involved.
(105)
For the period before mid-1997, the State controlled Portugal Telecom as it had a majority holding in the company. Therefore, any loss of income resulting from the acceptance of late payments from the period before mid-1997 should be regarded as public resources (53).
(106)
Firstly, the Commission should assess whether the behaviour of the network operator before mid-1997 led to a loss of state resources. In fact, by granting payment facilities, the network operator acted as a public creditor towards RTP. Its behaviour should therefore be compared with that of a public or private creditor that seeks to recover sums due to it and, to that end, concludes agreements with the debtor under which the accumulated debts are to be rescheduled or paid by instalments in order to facilitate their repayment (54). The interest normally applicable to that type of debt is intended to make good the loss suffered by the creditor because of the debtor's delay in performing its obligation to pay off its debt, namely default interest. The rate of default interest applied by the public creditor should be equal to the rate a private creditor would apply in similar circumstances (55).
(107)
Following the opening of the procedure and the comments put forward by third parties, the Portuguese authorities did not provide sufficient information on the interest rate applied by the public network operator or on the market reference rate. Therefore, the Commission cannot rule out the possibility that the interest rates charged by Portugal Telecom before mid-1997 constituted a loss of state resources.
(108)
Secondly, the Commission needs to ascertain not only whether the measure involves state resources but also whether the public authorities were actually involved in the adoption of the measure (56).
(109)
It was not disputed that before mid-1997 the State was in a position to control Portugal Telecom and to have a dominant influence over its operations since it held more than 50 % of the company's shares.
(110)
During its investigation the Commission did not find any indications that the Portuguese authorities were actually involved in the adoption of the agreements on the acceptance of the delayed debt repayment by the operator of the broadcasting network (57).
(111)
As can be seen from paragraph 22, the State regulated the tariffs and the television signals distribution service that the network operator had to deliver as part of its concession contract with the State. However, the legal provisions did not make a distinction between the services and tariffs that the network operator was required to deliver to the public broadcaster RTP and those to private television operators. Nor did the network operator have to provide RTP with an obligatory universal service in terms of a broadcasting network service.
(112)
The Commission does not, therefore, agree with the third parties who argued that they were discriminated against since the Television Law stipulated only that private operators could lose their broadcasting licence if they did not pay the network fee on time. Although the Law provided only for the consequences of possible non-payment by private operators, Portugal Telecom was under no obligation to deliver its services to RTP, regardless of whether RTP paid its fees or not.
(113)
Furthermore, the network operator was not integrated into the structures of the public administrations as it was set up under company law as a public limited company. (‘sociedade anónima’).
(114)
The Portuguese authorities explicitly stated that the public authorities did not intervene, directly or indirectly, in the acceptance of delayed payments by Portugal Telecom. Similarly, third parties did not come forward with any indications suggesting state involvement in the measure.
(115)
Lastly, as can be seen from paragraph 25, the behaviour of the network operator before and after mid-1997 did not change. After mid-1997 the network operator continued to conclude agreements with RTP on payment of the fees. A dispute over the level of the annual fee in connection with the interdependence of the two companies seems to have been the main reason for the agreements. This seems to be underlined by the decision of ANACOM in 2003 that Portugal Telecom had to reduce its prices significantly.
(116)
In view of the arguments put forward above, the Commission concludes that it has no indications that the network operator was required by the public authorities to accept late payment. Nor are there any other indications to suggest that the public authorities were involved in the adoption of the measure (58). Furthermore, similar arrangements were agreed upon once the company was clearly privatised. Therefore, the measure cannot be considered to be attributable to the State and so did not lead to a loss of state resources.
(117)
As regards the rescheduling of debt due to the social security scheme and the waiver of interest for late payment, the Commission considers that the social security scheme cannot be regarded as an undertaking. It does not carry out an economic activity but is a public body with the task of administering social security (59). Furthermore, authorisation for the debt rescheduling was given not by the social security scheme itself but by a joint decree of the State Secretaries for Finance and Social Security and the Deputy State Secretary to the Deputy Minister. With the authorisation, the State did forgo income since normally it would have received PTE 1 206 million in interest on the outstanding debt. Therefore, it is clear that state resources are involved and that the measure is attributable to the State.
(118)
The capital increases granted to RTP and the payments for the television network were provided by the State direct from the public budget. It is therefore clear that these funds constitute state resources within the meaning of Article 87(1).
(119)
The Commission cannot agree with the Portuguese authorities that no state resources are involved in the loan. It should be recalled that the concept of state resources also includes advantages granted by bodies designated or established by the State for that purpose (60). The loan contract was concluded between RTP and the Public Debt Stabilisation Fund, a fund managed by the Public Debt Management Institute. A legal act determines that the Institute is subject to the authority and supervision of the Minister for Finance (61). It can therefore be concluded that the funds granted by the Public Debt Stabilisation Fund should be regarded as state resources.
(120)
Moreover, the measure can be considered as being directly attributable to the Portuguese authorities since a resolution agreed on 17 December 1998 between the State Secretaries for the Media, the Treasury and Finance laid down the conditions of the contract.
(121)
No information was received to show that the bond issue by RTP was accompanied by a state guarantee. According to the prospectus for the bond issue, RTP guaranteed servicing of the debt. It had no legal status at the time the bond was issued, and this resulted in an implicit state guarantee. In 1992 the company was transformed from a public entity into a public limited company by Law No 21/92. The Commission therefore considers that the bond issue was carried out under market conditions and the State did not forgo income. As a result, no state resources are involved. Contrary to the opinion of third parties, the Commission considers that the fact that RTP is publicly owned does not alter this conclusion as the EC Treaty is neutral as regards public or private ownership (62).
(122)
As regards the protocol on cinema promotion of September 1996, the Commission cannot agree with the comments from third parties that RTP received additional funding on the basis of the protocol. The protocol specified in detail how RTP was to fulfil its public service obligation to support the cinema (63) but did not provide for additional financial compensation for RTP. Financial compensation for RTP's obligations in respect of cinematographic production was already possible under the general system of compensation payments in accordance with Law No 21/92 (64). Accordingly, the protocol cannot be seen as a separate ad hoc financing measure and, as such, does not lead to a loss of state resources, as no new financial measures are granted by the State to RTP on the basis of the protocol.
(123)
The restructuring plan for the period 1996 to 2000 seems to have been simply a preliminary study carried out by RTP without any financial commitment by the Portuguese State. Therefore, the Commission considers that no state resources are involved. No new elements were presented by any third parties on this aspect.
(124)
Accordingly, it can therefore be concluded that the protocol on cinema promotion, the restructuring plan for the period 1996 to 2000, the late payments for the use of the broadcasting network and the bond issue do not constitute state aid as no state resources are involved.
(125)
As regards the exemption from registration charges, the Commission has to assess whether the measure conferred a general tax exemption on RTP and whether it applied specifically to RTP (and, alternatively, to only public companies) and not to private companies. Furthermore, it has to determine whether RTP received an additional advantage by not paying any cost linked to the publication of the deed and whether RTP was also exempted from the registration charges in respect of all other assets under Article 11(2) of Law No 21/92.
(126)
Firstly, the Commission considers that the purpose of Article 11 was to exempt RTP from registration and similar charges directly linked to the change of its legal status. Whereas paragraph 1 relates to the basic requirement to register the legal document at the National Commercial Registry, paragraph 2 refers to other mandatory registration directly linked to the change in the legal nature of the company (e.g. registry of movable or immovable assets). Indeed, information from the Portuguese authorities shows that RTP does not enjoy a general exemption for registration charges as it has on several occasions paid notary and registration charges related to changes in the company after its conversion into a public limited company (65). The Commission cannot, therefore, agree with comments from interested parties that RTP enjoyed a general exemption from registration charges.
(127)
Secondly, the Commission agrees with the Portuguese authorities that Article 11(1) of Law No 21/92, on the basis of which RTP is exempt from payment of registration charges, does not confer a specific advantage. It merely reaffirms the applicability of Law No 84/88 in the specific case of RTP, under which public undertakings could be converted by decree-law into public limited companies, with the decree-law having to approve the statutes of the limited company and to constitute a sufficient document for all registration requirements.
(128)
The different treatment for public undertakings transforming their legal status into a public limited company arises from the internal logic of the system and does not confer on them a specific advantage since relevant chargeable events do not exist. The issuing of a notarial deed is necessary to certify the documents that create or alter a company in order to give them legal force. However, such a deed seems superfluous for public undertakings whose legal status has been changed into that of a public limited company through a legislative act since such an act already has the necessary legal force.
(129)
The same reasoning is valid for registration charges as well as for publication costs. In its responsibility as a public authority, the State has to publish legislative amendments in the Diário de República. As Law No 21/92 approving the new statutes of RTP had already been published by the State, it would have been superfluous to impose on RTP any other publication requirements to which private companies may be subject. The Diário de República contains the full text of RTP's statutes, thereby producing the same effects as registration, including the required effects regarding information for third parties.
(130)
Thirdly, the Commission agrees with the Portuguese authorities that Article 11(2) of Law No 21/92, under which RTP was exempted from the payment of other registration charges linked directly to the modification of the legal status of the company, does not confer a specific advantage to RTP. Article 11(2) merely confirms the applicability of Article 1 of Decree-Law No 404/90, under which undertakings could be exempted from transfer tax and other legal charges payable on assets necessary for the concentration or cooperation in question. Decree-Law No 404/90 applied to all undertakings that carried out acts of concentration or cooperation before 31 December 1993. The exemption from payment of other registration fees granted to RTP does not confer a specific advantage on RTP since it was applicable to all undertakings in the same situation.
(131)
After considering the comments from third parties and the Portuguese authorities, the Commission concludes that the initial agreement between the social security scheme and RTP cannot be regarded as representing typical behaviour of a private operator. The dispute was whether or not the interpretation of certain social security rules as laid down in Implementing Decree No 12/83 was legally correct. The agreement confirmed RTP's interpretation, which was supported by the analysis of a tax expert who concluded that the Implementing Decree was unconstitutional. However, following the agreement, the Implementing Decree was not revoked. Therefore, it has to be concluded that the measure was selectively applied to RTP without affecting the applicability of the social security scheme's interpretation to other companies.
(132)
Furthermore, the Commission cannot agree with the Portuguese authorities that the authorisation for the debt rescheduling and for the waiver of fines and interest was given within the framework of a general system applicable to all undertakings in a similar situation on the basis of Decree-Law No 411/91 and therefore did not confer a specific advantage on RTP.
(133)
Without prejudging the selective or general nature of such a scheme, the purpose of the present decision is to determine whether the application of the scheme to RTP was selective.
(134)
In order to prove that the rescheduling is indispensable to ensure the viability of the company, Decree-Law No 411/91 requires a financial/economic study to be carried out. RTP never carried out such a study of its viability pursuant to Article 2(3) of Decree-Law No 411/91.
(135)
Furthermore, the condition laid down in Article 2(1)(d) was not applicable to RTP as the debt regularisation did not follow state intervention. The Commission does not agree with the Portuguese authorities, which claim that the history of state intervention affected the operation of the debtor enterprise and that RTP was governed by statutory rules at the time of the state intervention. Although RTP was subject to a special management regime in 1977 (66), this regime came to an end with the adoption of the 1980 statutes, whereas the debt to the social security scheme was built up in the period 1983 to 1989. The Commission considers that the debt regularisation for RTP cannot be considered part of a general regime under Law No 411/91 as RTP did not meet the criteria laid down in this Law for such authorisation. Therefore, the measure was applied in a selective manner to RTP.
(136)
Furthermore, by granting the debt rescheduling, the State should have acted like a public or private creditor that seeks to recover sums due to it and, to that end, concludes debt rescheduling agreements to facilitate payment (67). The rate of default interest applied by the State should be equal to the rate a private creditor would apply in similar circumstances. The Commission considers that a private creditor that pursued the recovery of the debt by legal means would obtain at least the statutory interest rate. Therefore, by not requiring any interest payments at all, despite available enforcement mechanisms, the Portuguese authorities did not act like a private creditor would have done in order to maximise the rate of interest. Furthermore, the debt with the social security scheme built up in the period 1983 to 1989 and a rescheduling arrangement was agreed only in 1993. Under the same conditions a private creditor would not have allowed a similar accumulation of outstanding debt over such a long period without initiating collection procedures. Therefore, it seems that the measure conferred a specific advantage on RTP.
(137)
As regards the payments for the hiving-off of the television signals network, the Commission cannot take into account the comments of third parties that question the calculation of the value of the broadcasting network. The Commission already concluded in its decision of 2 October 1996 on the financing of RTP that the price paid by the State to RTP for the network represented the market value and did not constitute state aid (68). This conclusion was not contested by SIC before the Court of First Instance (69).
(138)
Furthermore, the Commission does not agree with the comments to the effect that the compensation is not justified because the television network has been built with the help of state financing. It considers that the function of the State as an investor should not be confused with its function as a public authority. Although the State is the sole owner of RTP and became the sole owner of TDP, the two companies should, for transparency reasons, be legally and financially independent. The network was part of the assets of RTP. Therefore, the compensation granted by the State to the public company RTP in respect of the market value of the network, which it had decided to split off from the assets of RTP, does not confer any financial advantage on RTP as the compensation matched the real value of those assets. And so, the measure does not confer an advantage on RTP and does not, therefore, constitute state aid within the meaning of Article 87(1) of the EC Treaty.
(139)
After considering the comments from third parties and the Portuguese authorities, the Commission concludes that the capital increases in the period 1994 to 1997 provided a financial advantage for RTP. As can be seen from Table 3, considering the weak financial position of RTP in the period when the capital increases were made, no private investor would have injected capital into the company as no normal return could be expected from the company within a reasonable time. In fact, despite the capital injections, the financial position of RTP deteriorated. Neither the Portuguese authorities nor third parties alleged that the Portuguese State acted as a private investor when injecting capital into the company.
(140)
The Commission does not agree with the Portuguese authorities that the loan granted in 1998 was in conformity with market conditions. For the loan not to constitute state aid, the conditions attached to it (the security sought and the interest rate) should reflect the inherent risk of lending to an undertaking (70). The risk and subsequently the interest rate are higher when a company is in an economic and financial situation the soundness of which is below the level at which a financial institution would lend to it.
(141)
As can be seen from Table 3, at the time the loan was agreed, RTP was in severe financial difficulties to the extent that its debts exceeded the value of its assets and net equity was negative. Technically, the company was bankrupt.
(142)
Firstly, it should be borne in mind that the loan was a subordinated loan, i.e. it had no asset-based security and, in the case of bankruptcy, it ranked for repayment purposes after all creditors but before shareholders. The absence of appropriate asset-based security was a clear indication that the loan was not granted at market conditions and that aid was involved. In view of the technical bankruptcy of RTP at the time the loan was granted, no financial institution would have granted a subordinated loan to the company as there was little likelihood of RTP being able to repay it. Indeed, the loan was not granted by a private financial institution but by the Public Debt Stabilisation Fund.
(143)
Secondly, it can be argued that the interest rate applied to the loan clearly does not reflect its intrinsic risk. Not only is it below the reference rate that the Commission normally uses to calculate the aid element in interest subsidy schemes for loans (71), but also a normal market operator would require, on the top of sound guarantees, an interest rate that compensated for such a high risk of non-repayment.
(144)
Given that its financial position was such that RTP would not have been able to obtain a subordinated loan under normal circumstances, the loan effectively equates to the payment of a grant and constitutes an advantage for RTP.
(145)
Accordingly, the Commission considers that the debt rescheduling with the social security scheme, the capital injections in the period 1994 to 1997 and the loan granted in 1998 provided a financial and economic advantage as compared with competitors that did not receive the same funds.
(146)
Since the Portuguese television market was open to competition by 1992 at the latest, there were competitors on the market during the period that RTP benefited from the different measures. In February 1992 broadcasting licences were granted to the commercial broadcasters SIC and TVI and in October 1992 SIC started broadcasting in Portugal.
(147)
The Commission does not agree with the Portuguese authorities that the agreement on the debt with the social security scheme would fall outside the concept of state aid, as the debt itself had been created before the Portuguese broadcasting market was opened up to competition. The financial advantage was granted to RTP in May 1993 after the opening-up of the broadcasting market and was therefore able to confer an economic advantage on RTP.
(148)
Accordingly, the Commission concludes that the measures granted by the State were able to confer an economic and financial advantage on RTP compared with competitors not receiving the same funds and thereby to distort competition within the meaning of Article 87(1).
(149)
State measures fall within the scope of Article 87(1) in so far as they affect trade between Member States. This is the case whenever the activities in question are subject to intra-Community trade. In the present case, the beneficiary RTP is itself active on the international market. Indeed, through the European Broadcasting Union it exchanges television programmes and participates in the Eurovision system (72). Furthermore, RTP is in direct competition with commercial broadcasters that are active on the international broadcasting market and have an international ownership structure (73).
(150)
Accordingly, it can be concluded that the measures granted to RTP affect trade between Member States within the meaning of Article 87(1).
(151)
It transpires from the above that, leaving aside possible public service obligations imposed on RTP, the following measures involve state aid within the meaning of Article 87(1) of the EC Treaty: the debt rescheduling with the social security scheme, the capital injections during the period 1994 to 1997 and the loan granted in 1998.
(152)
However, as mentioned above, RTP is entrusted with a public service broadcasting obligation. The European Court of Justice ruled in Altmark that state measures compensating for public service costs do not qualify as state aid under Article 87(1) of the EC Treaty when the following four conditions are all satisfied (74):
-
the recipient undertaking must actually have public service obligations to discharge, and the obligations must be clearly defined,
-
the parameters on the basis of which the compensation is calculated must be established in advance in an objective and transparent manner,
-
the compensation cannot exceed what is necessary to cover all or some of the costs incurred in the discharge of public service obligations, taking into account the relevant receipts and a reasonable profit for discharging those obligations,
-
when the company is not chosen pursuant to a public procurement procedure, the level of compensation needed must be determined on the basis of an analysis of the costs which a typical undertaking, well run and adequately equipped, would have incurred in discharging those obligations.
(153)
Leaving aside the first and third conditions, the ad hoc measures mentioned in paragraph 151 do not seem to fulfil the second and fourth conditions of Altmark for the reasons given below:
(154)
It is clear that the financing granted by means of the agreement with the social security scheme and the loan were not part of a compensation system the parameters of which had been established beforehand in an objective and transparent manner (second condition). On the contrary, they were based on ad hoc decisions attributable to the State.
(155)
Furthermore, as stated in paragraph 61, the public service contracts provided for a specific financing possibility for investments in public service equipment by means of capital injections. They do not restrict the investments to public services or define clearly the conditions and limits of state participation; they merely refer to the possibility for the State to participate in RTP's investments as a shareholder. Therefore, the Commission considers that the capital injections too cannot be considered to be part of a compensation system the parameters of which have been established beforehand in an objective and transparent manner.
(156)
Furthermore, it is clear that RTP was not chosen pursuant to a public procurement procedure guaranteeing the lowest possible cost. There are no indications that the amount of the ad hoc payments was determined on the basis of an analysis of the costs that a typical undertaking would incur (fourth condition).
(157)
Accordingly, it is clear that in the present case not all the Altmark conditions are satisfied. Therefore, the measures mentioned in paragraph 151 must be regarded as state aid under Article 87(1) of the EC Treaty.
(158)
The Court of Justice has consistently held that Article 86 may provide for an exemption from the ban on state aid for undertakings entrusted with a service of general economic interest (SGEI). It has been implicitly confirmed in Altmark that state aid which compensates for the costs incurred by an undertaking in providing an SGEI can be regarded as compatible with the common market if it meets the conditions of Article 86(2) of the EC Treaty (75).
(159)
The Court of Justice has made it clear that, for a measure to benefit from such exemption, the principles of definition, entrustment and proportionality must all be fulfilled. The Commission considers that, where these principles are fulfilled, the development of trade is not affected to an extent contrary to the interests of the Community.
(160)
The way these principles apply in the broadcasting sector is explained in the Commission communication on the application of state aid rules to public service broadcasting (76). According to the communication, the Commission has to assess whether or not (77):
-
the activities of RTP are public service obligations clearly defined as such by the Member State (definition),
-
RTP is officially entrusted by the Portuguese authorities with the provision of that service (entrustment),
-
the funding is proportionate to the net cost of providing the public service.
(161)
As stated in the Amsterdam Protocol (78) and the communication on broadcasting (79), it is for the Member States to define the public service remit of the public service broadcaster. In the broadcasting sector the role of the Commission is limited to checking whether the public service definition contains any manifest error. Such error would constitute an abuse of the definition of the public service.
(162)
Given the specific nature of the broadcasting sector, the Commission considers, in view of the interpretative provisions of the Protocol, a definition entrusting a given broadcaster with the task of providing balanced and varied programming to be legitimate (80). Such a definition would be consistent with the objective of fulfilling the democratic, social and cultural needs of a particular society.
(163)
As described in paragraphs 51 and 52, RTP is, by virtue of Law No 21/92 and the public service contracts, obliged to ensure as a general public television service the broadcasting of two channels with general coverage. Whereas the first channel has to offer more general programming, the second channel has to aim more at specific audiences. Furthermore, as described in paragraphs 53 and 54, Law No 21/92 and the public service contracts impose more detailed obligations on RTP regarding programme content and international cooperation, as well as some other specific obligations.
(164)
Although the definition of RTP's public service broadcasting is of a qualitative and rather broad nature, the Commission, in view of the interpretative provisions of the Amsterdam Protocol, considers such a ‘broad’ definition to be as legitimate (81). Therefore, it also considers the general definition of RTP's public service remit to provide two television channels of national coverage, one more general and the other more focused on specific audiences, to be legitimate. Such a definition can be regarded as fulfilling the democratic, social and cultural needs of Portuguese society.
(165)
Furthermore, the Commission regards as legitimate the obligations which determine in detail how RTP should perform the general public service broadcasting remit. Indeed, in line with wording of the Amsterdam Protocol, these obligations can also be considered to fulfil the democratic, social and cultural needs of Portuguese society.
(166)
Although the Commission regards the public service mission of RTP as legitimate, it must, however, ascertain whether or not this definition contains any manifest errors.
(167)
Taking into account recital 45 to the Television without Frontiers Directive, the Commission could accept, in so far the resulting film rights are shown on public service television, that the public service definition of public service broadcasters includes the obligation to contribute substantially to investment in European audiovisual production (82).
(168)
The Commission considers that the obligation imposed on RTP to promote the cinema falls within the scope of public service broadcasting, as RTP subsequently broadcasts on public service television the films for which it acquired the distribution rights.
(169)
The Commission cannot, therefore, agree with the comments by interested parties that RTP's obligation regarding cinema promotion and its financing is discriminatory. The parties argued that private broadcasters also concluded protocols on cinema promotion with the Portuguese authorities that do not provide for compensation. The Commission is of the opinion that a distinction has to be made between the voluntary agreements on cinema promotion concluded between the State and the private broadcasters, on the one hand, and the public service broadcasting obligations imposed on RTP to broadcast cinema productions and to finance them, on the other. It is clear that RTP is explicitly entrusted with a public service task to support certain film productions that are subsequently broadcast as public service television programmes, whereas no such public service task is entrusted to private broadcasters. In fact, RTP becomes an instrument used by the State to support the cinema. Any resulting advantages granted by RTP to the cinema could constitute state aid and should be assessed as such. This decision is without prejudice to any assessment of possible advantages granted to film producers.
(170)
Accordingly, the Commission concludes that the co-financing by RTP of Portuguese cinematographic works that are shown on the public service channels can be considered as a legitimate specific obligation that is instrumental in fulfilling RTP’s general public service broadcasting obligation. This obligation does not, therefore, constitute a manifest error.
(171)
However, the Commission considers that the legal obligation imposed on RTP to provide ‘other services to be specified on an ad hoc basis’ (83) is not sufficiently precise to enable the Commission to assess beforehand with sufficient legal certainty whether such services can be considered as a public service. Although it takes the view that the ‘other services to be specified’ are not clearly defined, it notes that no payments were made under this provision during the period under investigation (84).
(172)
In view of the foregoing, the Commission concludes that the activities of RTP as described in Law No 21/92 and redefined in the public service contracts are clearly defined public service obligations. Although the obligation to provide ‘other services to be provided on an ad hoc basis’ is not sufficiently precise for it to be concluded beforehand that all the services provided under this heading could be considered public services, no payments were made under this provision in the period 1992 to 1998.
(173)
Secondly, the Commission has to assess whether the public service obligations were entrusted to the recipient of the funding.
(174)
In line with the Communication on broadcasting, the Commission has to verify whether the public service remit has been entrusted to RTP by means of an official act (85).
(175)
As can be seen from paragraph 55, the public service obligations are clearly entrusted to RTP under various laws and contracts: Article 5 of Law No 58/90, Articles 4(1) and 5 of Law No 21/92 and Clause 1 of the public service contracts.
(176)
The Commission did not receive any comments from interested parties or the Portuguese Government to the effect that the public service was not sufficiently entrusted to RTP by means of an official act. In line with the communication and in view of the above laws and contracts, it concludes that there is no doubt that RTP has to perform the public service television obligations and the public service remit has, therefore, been officially entrusted to RTP.
(177)
Not only should the public service be entrusted to RTP by means of an official act; steps should also be taken to ensure that the public service is provided as provided for. As stated in paragraphs 56 to 59, different control mechanisms were in place to ensure that RTP carried out the public service obligation in the manner provided for.
(178)
Firstly, RTP had to present reports on the public service performance as well as plans accompanied by an opinion of the internal board of auditors. In the period 1992 to 1998 it did indeed present such reports describing how each public service obligation had been fulfilled and identifying the costs of each public service obligation by using an analytical accounting system.
(179)
Secondly, the Minister for Finance and the member of the Government responsible for the media verified compliance with the public service contracts and the Inspector-General of Finances audited the financial plan.
(180)
Thirdly, an external audit had to be carried out each year. The Commission cannot agree with SIC that the public service costs as presented by the Portuguese authorities and the RTP figures included in its public service contracts and annual accounts are not reliable and therefore could not be properly verified. It points out that a statutory auditor carried out an annual audit of RTP's financial accounts in the period 1992 to 1998. Furthermore, although an audit statement did not systematically accompany the public service reports, the strict rules of the cost accounting system ensured that the costs of each public service obligation eligible for compensation payments could be identified and properly verified.
(181)
From the above it is clear that verification took place at three different levels: internally by the board of auditors, by the responsible government bodies and by an external auditing firm. Although no systematic external auditing of the public service reports seems to have taken place, the system described ensured that the public service obligation was carried out in the manner provided for. Therefore, the Commission concludes that an effective mechanism was in place in the period 1992-98 to ensure effective monitoring of the fulfilment of RTP's public service obligations.
(182)
The third criterion the Commission has to assess is whether the financing is proportionate to the net cost of the public service.
(183)
In the communication on broadcasting, the Commission described the criteria on the basis of which it intends to assess the proportionality of state funding. It requires that the state aid should not exceed the net costs of the public service mission and that no market distortions should occur that were not necessary for the fulfilment of the public service mission (86).
(184)
Firstly, in order to determine the cost of the public service activities correctly, the communication requires a proper allocation of costs and revenue between the public service and commercial activities.
(185)
As described in paragraphs 62 to 64, the public service contracts define the method of cost and revenue allocation that RTP has to apply. In the present case, the Commission's task is, in principle, made easier by the fact that RTP has implemented an analytical accounting system which permits quantification of the eligible costs incurred by the undertaking to fulfil each of the reimbursable public service obligations.
(186)
By means of this system, each item of eligible expenditure is allocated to an activity and subsequently divided between the different reimbursable public service tasks of RTP on the basis of objective accounting principles.
(187)
As the revenues derived from each reimbursable public service task are deducted from the operating costs, the system guarantees that the annual compensation payments are limited to the net cost of each public service obligation (see paragraph 65).
(188)
The Commission has, therefore, come to the conclusion that the parameters for determining the cost are, in principle, established in an objective and transparent manner.
(189)
However, it notes that the rules of cost compensation might underestimate the real net cost of RTP's public service and could lead to structural underfinancing of the real funding needs.
(190)
As can be seen from paragraph 65, under the cost calculation method laid down in the contracts, certain public service costs were excluded from payment by means of annual compensation (87). Moreover, the Portuguese authorities informed the Commission that, although RTP had to pay VAT on the annual compensation payments received, the resulting costs could not be taken into account under the accounting rules (paragraph 96). Finally, in its public service reports RTP did not include all the investments made in public service equipment, although these were accounted for in its financial accounts (see paragraph 67).
(191)
However, under the Amsterdam Protocol, it is for the Member State to provide for the funding of the public service broadcasters. In the present case, the Portuguese authorities decided not to reimburse some of the costs incurred by the service provider in fulfilling its tasks.
(192)
In the case at hand, the State granted not only annual compensation payments to RTP but also additional financing in the form of share capital increases, loans and an agreement with the social security scheme.
(193)
Although the public service contracts provided for state compensation in the form of annual compensation payments for operating costs and the possibility of capital increases for investments made by RTP, the legal provisions relating to RTP's public service did not provide for any financing by means of loans and social security deductions. However, in line with paragraph 57 of the communication on broadcasting, the Commission has to analyse whether all measures are proportionate to the net public service costs. Only then can the financing of RTP be considered to be compatible with Article 86(2) of the EC Treaty.
(194)
The Commission also considers that the public service obligations imposed on RTP which were not eligible for compensation under the public service contracts can, in fact, be considered as legitimate and clearly defined public service obligations formally imposed by the State on the service provider. Therefore, under Community law, the Portuguese State may finance all the net public service costs of RTP.
(195)
For the purposes of the present decision, it is not necessary to recalculate exactly all the real net costs incurred by RTP in performing its public service obligations. It is sufficient to demonstrate that the total state financing received by RTP in the period 1992 to 1998 did not exceed the net extra costs incurred by the undertaking in fulfilling over the same period the public service tasks referred to.
(196)
Table 6 gives an overview of RTP's public service costs (both investment costs and net operating costs), as calculated under the cost accounting rules applicable, and of the compensation received for investment and operating costs.
(197)
Firstly, the investments in public service equipment (Table 5) and compensation provided for to finance investments (Table 2) are presented. Secondly, the net operating costs of RTP (Table 4) and the compensation payments for these costs (Table 1) are presented. Lastly, the table shows the advantage gained from ad hoc aid resulting from the agreement with the social security scheme and the loan.
Table 6
Summary of funding needs and compensation for the public service net operating cost under the accounting rules
(PTE million)
1992
1993
1994
1995
1996
1997
1998
Sum
Investment costs
2 632,6
2 102,0
2 763,9
992,7
1 480,4
4 037,4
6 054,2
20 063,2
Capital injections
- 0
- 0
- 10 000,0
- 12 800,0
- 10 000,0
- 14 000,0
- 0
- 46 800,0
Difference between investment costs and compensation
2 632,6
2 102,0
- 7 236,1
- 11 807,3
- 8 519,6
- 9 962,6
6 054,2
- 26 736,8
Public service operating costs
6 718,2
7 960,0
8 384,1
8 103,3
17 217,1
37 972,1
30 101,3
116 456,1
Compensation payments
- 6 200,0
- 7 100,0
- 7 145,0
- 7 200,0
- 14 500,0
- 10 350,0
- 14 000,0
- 66 495,0
Social security
-
- 1 206,0
-
-
-
-
-
- 1 206,0
Loan
- 20 000,0
- 20 000,0
Difference between operating costs and compensation
518,2
- 346
1 239,1
903,3
2 717,1
27 622,1
- 3 898,7
28 755,1
Source: Financial report and public service reports.
(198)
As emphasised above, the system of annual compensation payments chosen by the Portuguese authorities had the effect of underestimating the actual costs of the public service tasks performed by RTP. The system led to an accumulation of debt. At a second stage, in order to maintain the financial equilibrium of RTP, the authorities used ad hoc instruments to finance RTP's public service costs.
(199)
As Table 6 shows, the capital injection overcompensated for public service investments by PTE 26 736,8 million, whereas the operating costs were underfinanced by the compensation payments and the other ad hoc aid to the tune of PTE 28 755,1 million. Indeed, although the capital injections were basically meant to finance investments in equipment, they were also used to repay accumulated debt.
(200)
As Table 6 also shows, the total compensation was PTE 2 018,3 million less than the net public service costs (PTE 28 755,1 minus PTE 26 736,8 million). The Commission concludes, therefore, that under the Community rules total state funding is proportionate to the net operating public service costs of RTP for the period under investigation.
(201)
The Commission considers that the funds received were probably even lower than the total net costs incurred in fulfilling the obligations imposed on it by the State owing to the fact the table above does not take into account all the public service costs of RTP in the period 1992 to 1998.
(202)
According to the communication on broadcasting, the Commission should ensure that the state funding is proportionate to the net costs of providing the public service but also that no market distortions occur with respect to the commercial activities which derive from the public service activities and for which no correct cost allocation is possible on the revenue side that are not necessary for the fulfilment of the public service mission. There would be such a distortion if RTP depressed the prices of advertising on the market so as to reduce the revenue of competitors (88). In such a case, RTP would not maximise its commercial revenues and would unnecessarily increase the need for state funding. According to the communication, such conduct, if demonstrated, cannot be considered as intrinsic to the public service mission attributed to the broadcaster (89).
(203)
In the decision initiating the investigation procedure the Commission stated that, if such conduct were found to have taken place, it would take these distortions and the resulting need for higher state funding into account when assessing possible overcompensation. At that stage in the procedure, the Commission noted that ‘on the basis of the information the Commission has in its possession at this moment, it cannot be established whether RTP engaged in such behaviour’ (90).
(204)
Following the invitation to submit comments on the initiation of procedure, the Commission did not receive any observations from RTP's competitors indicating or demonstrating that RTP was engaged in anti-competitive behaviour in commercial markets that could lead to increased state funding incompatible with the Treaty (91).
(205)
Under the circumstances, the Commission considers that there are no indications suggesting such behaviour. Consequently, it concludes that RTP does not seem to have engaged in anti-competitive behaviour in commercial markets leading to an increased need for state funding and that no overcompensation took place as a result of such behaviour.
(206)
Accordingly, the Commission concludes that the agreement with the social security scheme, the capital injections and the subordinated loan have to be regarded as state aid under Article 87(1). However, the funding of RTP by means of ad hoc aid is compatible with the common market under Article 86(2) of the EC Treaty. The total funding is proportionate to the net costs of clearly defined, entrusted public service obligations. Therefore, the state funding did not affect trading conditions and competition in the Community to an extent which would be contrary to the common interest under Article 86(2) of the EC Treaty (92).
VI. CONCLUSION
(207)
The Commission finds that Portugal has unlawfully implemented the ad hoc aid in question in breach of Article 88(3) of the Treaty. On the basis of the above analysis, it concludes that the agreement with the social security scheme in 1993, the capital injections in the period 1994 to 1997 and the loan in 1998 constitute state aid under Article 87(1) of the EC Treaty. The measures are granted through state resources, threaten to distort competition by favouring RTP and have an effect on trade. As analysed above, the measures do not fulfil the conditions set out in Altmark as they cannot be regarded as forming part of a compensation system whose parameters have been established beforehand in an objective and transparent manner. Furthermore, it is clear that RTP was not chosen by means of a public procurement procedure guaranteeing the lowest possible cost and there are no indications that the amount of the ad hoc payments was determined on the basis of an analysis of the costs that a typical undertaking would have incurred.
(208)
The exemption provided for in Article 86(2) is applicable to the ad hoc measures. As analysed above, the measures compensated for clearly defined public service obligations duly entrusted to RTP. As stated earlier, the ad hoc measures are proportionate to the net public service costs of RTP. The measures do not distort competition to an extent contrary to the Community interest since they are proportionate to the net public service cost of RTP and since RTP did not behave in an anti-competitive manner in its commercial activities,
HAS ADOPTED THIS DECISION:
Article 1
The state aid of PTE 68 006 million granted by Portugal to RTP in the form of an agreement with the social security scheme in 1993, capital injections in the period 1994 to 1997 and a loan in 1998 is compatible with the common market within the meaning of Article 86(2) of the Treaty since it did not lead to any overcompensation of the net costs of the public service tasks entrusted to RTP.
Article 2
The following measures do not constitute state aid: the exemption from registration charges, the payment for the hiving-off of the television broadcasting network, the facilities granted for payment of the annual fee for use of the television broadcasting network, the protocol on cinema promotion, the bond issue and the restructuring plan for the period 1996 to 2000.
Article 3
This Decision is addressed to the Portuguese Republic.
Done at Brussels, 15 October 2003.
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COMMISSION REGULATION (EC) No 483/95 of 3 March 1995 amending Regulation (EC) No 2814/94 fixing the uniform coefficient of reduction for the determination of the quantity of bananas to be allocated to each category C operator within the tariff quota for 1995 (Text with EEA relevance)
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Council Regulation (EEC) No 404/93 of 13 February 1993 on the common organization of the market in bananas (1), as last amended by Regulation (EC) No 3290/94 (2),
Having regard to Commission Regulation (EEC) No 1442/93 of 10 June 1993 laying down detailed rules for the application of the arrangements for importing bananas into the Community (3), as last amended by Regulation (EC) No 478/95 (4), and in particular
Article 4
(4) thereof,
Whereas Commission Regulation (EC) No 2814/94 (5) fixes the uniform coefficient of reduction to be applied to the quantities applied for by category C operators in respect of a tariff quota of 2 000 000 tonnes; whereas the tariff quota for 1995 currently amounts to 2 200 000 tonnes; whereas the uniform coefficients of reduction should be adjusted accordingly so as to determine the rights of the category C operators established in the Community as constituted on 31 December 1994;
Whereas provision should be made for the immediate application of this Regulation so that the operators may benefit thereunder as soon as possible,
HAS ADOPTED THIS REGULATION:
Article 1
In Article 1 of Regulation (EC) No 2814/94 '0,000647397' is hereby replaced by '0,000712137'.
Article 2
This Regulation shall enter into force on the day of its publication in the Official Journal of the European Communities.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 3 March 1995.
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COMMISSION DECISION
of 25 November 1999
on the measure which Germany is planning to implement for the promotion of agricultural products of Mecklenburg-Vorpommern
(notified under document number C(1999) 4227)
(Only the German version is authentic)
(2000/132/EC)
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community, and in particular the first subparagraph of Article 88(2) thereof,
Having called on interested parties to submit their comments pursuant to those provision(s)(1),
Whereas:
I. PROCEDURE
(1) By letter dated 24 December 1997, Germany notified the Commission of a measure granting aid for the promotion of agricultural products. It provided the Commission with further information by letters dated 20 May 1998, 17 September 1998 and 17 February 1999.
(2) As the aid concerned both aids for fishery products and for agricultural products the dossier was split. State aid N 22/A/98 (now C 23/99) concerned the aid related to agricultural products, State aid N 22/B/98 concerned the aid related to fishery products. State aid N 22/B/98 was approved by the Commission by letter SG (98) D/4799 of 15 June 1998. The present Decision only concerns State aid N 22/A/98 (now C 23/99).
(3) By letter dated 3 May 1999, the Commission informed Germany that it had decided to initiate the procedure laid down in Article 88(2) of the Treaty in respect of the measure.
(4) The Commission Decision to initiate the procedure was published in the Official Journal of the European Communities(2). The Commission called on interested parties to submit their comments.
(5) The German authorities submitted their comments by letter of 8 September 1999. The Commission received no comments from interested parties.
II. DESCRIPTION
(6) The measure is meant to promote the development towards a market driven production process in the agricultural sector in Mecklenburg-Vorpommern, Germany. Especially small and medium sized enterprises encounter difficulties in adjusting their production process and in organising their marketing activities. Therefore, the State of Mecklenburg-Vorpommern wants to lower the threshold to start marketing activities and wants to promote the development of marketing skills among the agricultural entrepreneurs in the area.
(7) The measure subsidies promotional activities and mesures to improve the marketing possibilities in general. The measure concerns in particular subsidies for:
- the organisation of the restaurant competition "Essen und Trinken in Mecklenburg-Vorpommern"
- the developement of promotional concepts,
- participation in fairs and trade markets,
- the development of quality labels and trademarks,
- the participation in seminars and workshops concerning sales promotion,
- market research,
- promotional activities and sales supporting activities (advertising),
- the development and maintenance of a regional label,
- the use of brochures and leaflets.
(8) The measure grants support to producer associations, undertakings that are active in the processing and marketing of agricultural products, organisations for the support of sales promotion, and agricultural associations. According to the original notification the beneficiaries had to have a legal seat in Mecklenburg-Vorpommern in order to be eligible for support. The aid is given in the form of direct grants. Maximally 50 % of the eligible costs may be reimbursed (60 % if the beneficiary is a small or medium sized undertaking). However, the maximum amount that may be granted as subsidy is DEM 150000. The measure will be in force in the period 1999 to 2002.
(9) The aid consists of several measures that can be divided into "soft aids" and promotional aids. In the decision initiating the procedure under Article 88(2) of the Treaty the Commission stated that she had no objections to the measure in as far as it concerned soft aids as such. This concerned the organisation of the restaurant competition, the participation in fairs and trade markets, the participation in seminars and workshops concerning sales promotion, the development of promotional concepts, the development of quality labels and trademarks, and market research.
(10) The promotional aids have to comply with the Commission communication concerning State involvement in the promotion of agricultural and fisheries products(3) and, if the promotion is in the form of advertising, the framework for national aids for advertising of agricultural products and certain products not listed in Annex II to the EEC Treaty, excluding fishery products(4).
(11) One of the main conditions for promotional aids is compliance with Article 28 of the Treaty. According to point 2.3.1 of the Annex to the abovementioned Commission communication of 1986 there is a danger of an infringement of Article 28 if "... undue emphasis is placed on the national origin of the product in promotional campaigns. Identification of the producing country in word or symbol may be made providing that a reasonable balance between references, on the one hand, its national origin is kept. The references should be subsidiary to the main message put over to the consumers by the campaign and not constitute the principal reason why consumers are being advised to buy the product".
(12) In earlier decisions(5) the Commission concluded that the measure did comply with Article 28 of the Treaty. However, the Commission re-examined the material the German authorities sent as an example. The example consists of a picture of agricultural products, a few text lines and two signs "Mecklenburg-Vorpommern". The text lines say "Hier schmeckt's" (Here it tastes well), "Bei uns kommt alles frisch auf den Tisch" (Everything is fresh on our table), and a text saying that a good soil and a temperate climate are the best conditions for a rich harvest of fruits and vegetables and potatoes. It seemed there was hardly any other message than the fact that the products were from Mecklenburg-Vorpommern. Therefore, the Commission had doubts as to the existence of a reasonable balance between references to the qualities and varieties.
(13) Furthermore, the measure would grant aid to undertakings that had a legal seat in Mecklenburg-Vorpommern only. According to Articler 43 of the Treaty restrictions on the freedom of establishment of nationals of a Member State in the territory of another Member State are prohibited. This prohibition applies as well to restrictions on the freedom of establishing agencies, branches or subsidiaries by nationals of any Member State established in the territory of any Member State.
As the Court has held on several occasion(6), the said prohibition is concerned not solely with the specific rules on the pursuit of an occupation but also with the rules relating to the various general facilities which are of assistance in the pursuit of that occupation. Therefore, the Commission had doubts about the compatibility of the measure with Article 43 and Article 48 of the Treaty.
III. COMMENTS FROM GERMANY
(14) In their letter of 8 September 1999, the German authorities stated that the promotion material that was submitted with the notification will not be supported under the measure. New promotion concepts will be designed to make this part of the measure operational. The rules and conditions for such promotion activities as mentioned in the Commission communication concerning State involvement in the promotion of agricultural and fisheries products and the framework for national aids for advertising of agricultural products and certain products not listed in Annex II to the EEC Treaty, excluding fishery products will be respected. A report giving information about the way the measure is made operational will be yearly submitted to the Commission.
(15) Furthermore, the German authorities indicated that they have crossed out the condition of having a legal seat in Mecklenburg-Vorpommern in order to become eligible for support under the measure.
(16) Finally, the German authorities mentioned that the budget for the total measure (State aids N 22/A/98 and N 22/B/98) has been increased to DEM 750000 per year. Of this budget DEM 230000 per year will be dedicated to measures concerning fisheries as such a budget was approved for fisheries by Commission Decision concerning N 22/B/98, letter SG (98) D/4799.
IV. ASSESSMENT OF THE MEASURE
(17) Under Article 87(1) of the Treaty any aid granted by a Member State or through State resources in any form whatsoever which distorts or threatens to distort competition by favouring certain undertakings or the production of certain goods is, in so far as it affects trade between Member States, incompatible with the common market.
(18) The measures grants aid for the promotion of agricultural products out of State resources to a restricted group of beneficiaries that are active in the marketing and processing of products that are traded within the Community. Therefore, the measure manifestly concerns State aid in the sense of Article 87(1) of the Treaty. The German authorities have not contested this.
Article 87(3)(c) of the Treaty
(19) Aid to facilitate the development of certain economic activities or of certain economic areas may be deemed by the Commission to be compatible with the common market under Article 87(3)(c) of the Treaty if the aid does not adversely affect trading conditions to an extent contrary to the common interest.
Soft aid
(20) As stated in the description of the measure the Commission had not objections against the measures that could be considered as soft aids as such. The Commission could not approve this part of the measure because of the objections against the eligibility criteria, namely the requirement to have a legal seat in Mecklenburg-Vorpommern. Since the German authorities have now withdrawn this requirement, the Commission has no objection to the granting of this aid since it meets the conditions of the derogation in Aricle 87(3)(c).
Promotion and advertising aids
(21) The development and maintenance of a regional label has to be evaluated as a promotional activity for which the Commission communication concerning State involvement in the promotion of agricultural and fisheries products and, as the promotion is in the form of advertising as well, the framework for national aids for advertising of agricultural products and certain products not listed in Annex II to the EEC Treaty, excluding fishery products apply.
(22) The abovementioned communication and framework are equally applicable when examining the promotional activities, the sales supporting activities, and the use of brochures and leaflets.
(23) Both the communication and the framework stress the fact that aid for promotion cannot be considered compatible with the common market if the promotion material infringes Article 28 of the Treaty. Furthermore, the framework prohibits aid for advertising related to partiuclar firms and sets a condition that the advertising should concern at least one of the following categories:
- surplus agricultural products,
- new products or replacement products not yet in surplus,
- the development of certain regions,
- the development of small and medium-sized undertakings,
- or the advertising of high-quality products and health foods.
Finally, the aid intensity for aids granted under the abovementioned framework should not exceed 50 % of the eligible costs.
(24) The Commission initiated the procedure provided for under Article 88(2) of lthe Treaty because she had doubts about the compatibility of submitted promotional material with Article 28 of the Treaty. However, in their letter of 8 September 1999 the German authorities stated that the promotion material that was submitted with the notification would not be supported under the measure. New promotion concepts will be designed to make this part of the measure operational. The rules and conditions for such promotion activities as mentioned in the Commission communication concerning State involvement in the promotion of agricultural and fisheries products and the framework for national aids for advertising of agricultural products and certain products not listed in Annex II to the EEC Treaty, excluding fishery products will be respected. A report giving information about the way the measure is made operational will be yearly submitted to the Commission. Therefore, the Commission now considers the measure to be compliant with Article 28 of the Treaty.
(25) The German authorities have guaranteed that no aid will be given to make promotion for a particular firm.
(26) The abovementioned framework states that the advertising which is subsidised should concern at least one of the following categories:
- surplus agricultural products,
- new products or replacement products not yet in surplus,
- the development of certain regions,
- the development of small and medium-sized undertakings,
- the advertising of high-quality products and health foods.
The measure is aimed at the development of agriculture in Mecklenburg-Vorpommern. Most of its beneficiaries will be small or medium-sized undertakings. The measure is meant to promote the sales of agricultural products of which a considerable number are in surplus. Therefore, the Commission considers this condition to be fulfilled.
(27) The framework for national aids for advertising of agricultural products and certain products not listed in Annex II to the EEC Treaty, excluding fishery products state that the beneficiaries of the aid for advertising should at least contribute 50 % of the costs. However, point 4.3 of the framework allows the possibility to raise the abovementioned maximum rate of direct aid (of 50 %), particularly in the case of products from small and medium-sized undertakings.
(28) The notified draft grants a maximum aid of 50 % but makes an exception for aids to small and medium-sized undertakings (SMEs). SMEs may be granted aids of 60 % of the eligible costs.
(29) The basic aid intensity complies with the abovementioned framework. In similar cases the Commission has approved advertising aids for SMEs with an aid intensity of 60 % or even 75 % (N 703/95, N 624/95 and NN 27/97). Therefore, the Commission considers this condition to be fulfilled.
Compliance with Article 43 and 48
(30) As mentioned above the Commission initiated the procedure provided for by Article 88(2) of the EC Treaty because it seemed the requirement to have a legal seat in Mecklenburg-Vorpommern to become eligible for support would be an infringement of Article 43 and Article 48 of the Treaty.
(31) In their letter of 8 September 1999, the German authorities indicated that they have crossed out the condition of having a legal seat in Mecklenburgh-Vorpommern in order to become eligible for support under the measure. Therefore the Commission considers the measure to be compliant with Articles 43 and 48 of the Treaty.
Increased budget
(32) Finally, in their letter of 8 September 1999, the German authorities indicated that the planned to increase the budget for the measure from DEM 230000 to DEM 750000 per year.
(33) The increase of the budget however, does not alter the Commission evaluation of the measure as the aid intensities remain the same.
V. CONCLUSION
(34) Following the amendments of the measure by the German authorities the Commission considers the measure to be compliant with the Commission practice regarding soft aids or to be compliant with the Commission communication concerning State involvement in the promotion of agricultural and fisheries products and the framework for national aids for advertising of agricultural products and certain products not listed in Annex II to the EEC Treaty, excluding fishery products.
(35) Therefore, the Commission considers the notified drat to be a measure that facilitates the development of certain economic activities, where such aid does not adversely affect trading conditions to an extent contrary to the common interest as meant in Article 87(3)(c),
HAS ADOPTED THIS DECISION:
Article 1
The measure which Germany is planning to implement concerning the promotion of agricultural, food industry, forestry, and fisheries products - the "Richtlinien für die Gewährung von Zuwendungen des Landes zur Förderung des Absatzes und zur Verbesserung der Marktposition land-, ernährungs-, forst-, und fischwirtschaftliche Erzeugnisse" originally notified by letter of 24 December 1997 is compatible with the common market within the meaning of Article 87(3)(c) of the Treaty.
Implementation of the measure is accordingly authorised.
Article 2
This Decision is addressed to the Federal Republic of Germany.
Done at Brussels, 25 November 1999.
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Commission Decision
of 30 March 1999
on the State aid which the Region of Sardinia (Italy) granted to the milk sector
(notified under document number C(1999) 902)
(Only the Italian text is authentic)
(2000/580/EC)
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community, and in particular the first paragraph of Article 93(2) thereof,
Having called on interested parties to submit their comments pursuant to the provision(s) cited above(1) and having regard to their comments,
Whereas:
I
PROCEDURE
(1) Following a complaint, by letter dated 24 January 1996, the Commission requested the Italian Government to notify the aid measures covered by Decision No 47/17 of the Regional Executive of the Sardinia Region of 24 October 1995 (hereinafter referred to as "Decision No 47/17").
(2) By letter dated 1 March 1996, the Italian Permanent Representation to the European Union notified the measures in question.
(3) By letter dated 16 October 1996 the Commission informed Italy of its decision to initiate the procedure laid down in Article 93(2) of the EC Treaty in respect of this measure.
(4) The Commission decision to initiate the procedure was published in the Official Journal of the European Communities(2). The Commission invited interested parties to submit their comments on the measure.
(5) The Commission received comments from interested parties. It forwarded them to Italy, which was given the opportunity to react; its comments were received by letter dated 17 June 1997.
II
DESCRIPTION
(6) Article 16 of Sardinian Regional Law No 9 of 13 July 1962 (hereinafter referred to as "Law 9/62") provides for the grant of aid in the form of reduced interest rates on short-term loans for the operation of cooperatives and producer groups processing sheep's and goat's milk into cheese. Article 16 provides for a maximum rate of interest of 2 % to be paid by recipients and a regional guarantee on loans of up to 80 % of the amount due. That Law has never been notified under Article 93(3) of the Treaty. The compatibility of the aid provided for therein with the common market has never therefore been examined.
(7) Decision No 47/17 lays down the rules for granting the aid provided for in the abovementioned Article 16 of Law 9/62 for the 1995/1996 agricultural year. No information has been supplied on the rules of application adopted for previous years.
(8) The types of loan concerned are:
(a) operating loans (for cooperatives only) amounting to ITL 250 per litre of milk with a ceiling fixed on the basis of production in the previous year;
(b) loans to cover advance payments to members (of cooperatives and producer groups).
These loans amount to ITL 1150 per litre of sheep's milk and ITL 850 per litre of goat's milk.
(9) The duration of loans can be set by the financial institute at 18 or 36 months (based, among other things on the type of cheese produced).
(10) The interest rate on the loans is 55 % of the reference rate fixed by the Government.
(11) The above aid may be received in combination, in the case of cooperatives, with aid in the form of a refund of 10 % of the rate of interest payable by them where cooperatives implement a joint marketing strategy (for example, by forming a marketing consortium or by means of worker participation agreements) for more than 30000 quintals of product per year.
(12) In its decision to open the procedure, the Commission noted that Articles 92 and 93 of the Treaty apply to milk and milk products in accordance with Article 23 of Council Regulation (EEC) No 804/68 on the common organisation of the market in milk and milk products(3), as last amended by Regulation (EC) No 1587/96(4).
(13) The Commission noted that the legal basis for the aid is Article 16 of Law No 9/62. Since that Law had never been notified to or examined by the Commission under Articles 92 and 93 of the Treaty, the aid cannot be considered existing aid within the meaning of Article 93(1).
(14) Accordingly, the Commission considered that the aid measures concerned must be examined in the light of the criteria laid down in the Commission communication on State aids: subsidised short-term loans in agriculture (crédits de gestion)(5). In principle, those criteria were to apply to all aid measures applicable on or after 1 January 1996 (Commission letter to the Member States dated 20 October 1995). After reviewing those criteria, the Commission doubted that the measure in fact met them.
(15) Furthermore, the Commission noted that the aid appeared to be granted on the quantity of milk sent for processing and therefore appeared to be in breach of Article 24 of Regulation (EEC) No 804/68 on the common organisation of the market in milk and milk products, which forbids any aid the amount of which is calculated on the basis of the price or quantity of products covered by that market organisation.
III
COMMENTS FROM INTERESTED PARTIES
(16) On 5 April 1997 the Commission received comments submitted jointly by the Federazione degli Industriali della Sardegna (the Sardinian Federation of Industry) and the Consorzio delle Industrie Casearie della Sardegna (the Sardinian Federation of Cheese Industries). These comments strongly support the arguments advanced by the Commission in its decision to open the procedure. They emphasise that the aid granted by the Italian authorities constitutes operating aid which has no long-term benefit for the sector concerned and should therefore be considered incompatible with the common market. They also emphasise that the aid distorts competition within the sector, since the aid is only granted to certain categories of producers, in particular cooperatives and producer groups. The two federations therefore ask the Commission to declare the aid to be incompatible with the common market and to order the recovery of any aid paid.
IV
COMMENTS FROM ITALY
(17) In their letter of 17 June 1997, the Italian authorities did not comment in detail on the issues raised by the Commission in its decision to open the procedure. They simply pointed out that the national rules concerned were adopted before the adoption of the communication on operating loans, that the aid was not granted as it was only payable after the event, that payment had been suspended until the Commission had reached a final decision, and that the entire matter could be resolved only when the Commission had adopted a definitive position on subsidised short-term operating loans.
(18) By telex of 9 December 1998, addressed to the Italian Permanent Representation, the Commission reminded the Italian authorities that its decision to open the procedure concerned any aid granted under Article 16 of Law No 9/62, and not only the aid envisaged for the 1995/1996 marketing year under Decision No 47/17. The Italian authorities were invited to clarify their response accordingly. However, no reply to this telex has been received.
V
ASSESSMENT OF THE MEASURE
(19) Article 92(1) of the EC Treaty provides that any aid granted by a Member State or through State resources in any form whatsoever which distorts or threatens to distort competition by favouring certain undertakings or the production of certain goods shall, in so far as it affects trade between Member States, be incompatible with the common market. Articles 92 and 93 of the Treaty apply to milk and milk products, by virtue of Article 23 of Regulation (EEC) No 804/68.
(20) The present measure provides for aid in the form of subsidised loans to be granted to cooperatives and producer groups which are involved in the processing of sheep's milk and goat's milk. The national reference rate used for the calculation of the interest rate reduction is the arithmetical mean of the Rendibot rate (calculated by the Bank of Italy) and the Ribor rate, increased by bank commission costs. In November 1998 the national reference rate was 6,25 %, compared with the reference rates used by the Commission at that time of 6,18 % for loans of five years' duration and 5,9 % for loans of one year's duration. A 45 % reduction in the national reference rate of 6,25 % clearly results in a rate of interest on the subsidised loans which is below the reference rates used by the Commission to determine whether a subsidised loan contains an aid component as cited in the Commission notice on the method for setting the reference and discount rates(6). Such a measure clearly favours the beneficiaries as opposed to other undertakings which must either obtain finance from their own resources or pay for such finance through interest on loans at normal commercial rates. In so far as producers who do not have access to subsidised loans have to pass on their additional costs to their customers, the measure places the beneficiaries of the subsidised loans at a commercial advantage. The measure therefore distorts the conditions of competition. Furthermore, the measure affects trade between Member States. In this context, the Commission notes that the majority of sheep's and goat's milk produced in Sardinia is used for the production of Pecorino Romano, Pecorino Sardo and other cheeses. Furthermore, the modalities for the payment of the aid depend on the type of cheese produced. There is substantial intra-Community trade in cheese, amounting to 1903300 tonnes in 1996 on the basis of outgoing volumes. Italian cheese exports in the same year amounted to ITL 1305 billion. In addition, while it is not possible to give precise figures, the Commission is aware that there is a substantial volume of intra-Community trade in Pecorino Romano and Pecorino Sardo, cheeses, which have received a protected designation of origin in accordance with Council Regulation (EEC) No 2081/92 of 14 July 1992 on the protection of geographical indications and designations of origin for agricultural products and foodstuffs(7), as last amended by Commission Regulation (EC) No 1068/97(8). Indeed in the context of another State aid file, the Sardinian authorities have indicated that Pecorino Romano is one of the few products where the island is a net exporter of foodstuffs.
(21) The Commission therefore concludes that the measure falls within the scope of the prohibition contained in Article 92(1) of the Treaty.
(22) The prohibition in Article 92(1) of the EC Treaty is followed by exemptions in Article 92(2) and (3).
(23) The exemptions listed in Article 92(2) of the EC Treaty are manifestly inapplicable given the nature of the aid measure in question and its objectives. Italy has in fact not invoked Article 92(2).
(24) Article 92(3) specifies the circumstances under which State aids may be considered to be compatible with the common market. Their compatibility with the common market must be assessed from the point of view of the Community and not that of an individual Member State. In the interest of the functioning of the common market and having regard to Article 3(g) of the Treaty, the exemptions from Article 92(1) must be interpreted restrictively.
(25) With regard to Article 92(3)(b), it is considered that the aid in question is not intended to promote the execution of an important project of common European interest or to remedy a serious disturbance in Italy's economy.
(26) The aid is, moreover, neither intended to achieve nor suitable for achieving the objectives contained in Article 92(3)(d).
(27) With regard to Article 92(3)(a) and (c) it has first to be noted that the aid is not granted in connection with investments. In fact, the aid is granted in the form of an interest rate subsidy on short-term operating loans which may be granted to cooperatives and producer groups operating in the sheep's and goat's milk processing sector. As such, the aid measure must be considered an operating aid.
(28) It is long-standing Commission policy to prohibit the payment of operating aids in the agricultural sector. Aids which simply relieve economic operators of their normal operating costs confer only a short-term economic advantage for the beneficiary which ceases as soon as the payment of aid stops and are particularly liable to distort competition. Such aids therefore cannot be considered either to promote the economic development of areas where the standard of living is abnormally low (Article 92(3)(a)) or to facilitate the development of certain economic activities or of certain economic areas (Article 92(3)(c)). Furthermore, the payment of such aids is likely to interfere with the operation of the mechanisms established by the common organisations of the market, in the framework of the common agricultural policy, and to disadvantage producers who are not in receipt of such aids, contrary to the principle of equality of treatment laid down by the Treaty. In accordance with the jurisprudence of the Court of Justice, and in particular the judgment of 26 June 1979, "one the Community has, pursuant to Article 40 of the Treaty, legislated for the establishment of the common organisation of the market in a given sector, Member States are under an obligation to refrain from taking any measure which might undermine or create exceptions to it.(9)"
(29) Nevertheless, in recognition of the structural difficulties which, in a number of Member States, inhibit the access of the agricultural sector to capital, or which increase the cost of capital for the agricultural sector, the Commission has developed a policy of allowing short-term subsidised loans to agricultural producers to cover operating costs provided that certain conditions are fulfilled. This policy was consolidated in a Commission communication concerning State aids in the form of short-term subsidised loans in agriculture(10). Originally transmitted to the Member States by letter of 20 October 1995, it was intended that the new rules should enter into force on 1 January 1996. By decision of 27 June 1997, the Commission extended the deadline for Member States to amend existing aids to comply with the new rules to 31 December 1996. Subsequently, by letter of 4 July 1997, the Commission informed the Member States that it had decided to suspend the application of the guidelines. By letter of 19 December 1997, the Commission informed the Member States that the guidelines would enter into force on 30 June 1998.
(30) Under the new rules, the aid measures in question must fulfil, inter alia, the following conditions:
(i) they must not be used selectively to assist sectors or individual agricultural operators for reasons which are not exclusively connected with the agricultural sector as a whole and related activities (in particular, the seasonal nature of agricultural production and holding structures); the Commission does not authorise aid which is not granted to all operators in the sector in the administrative unit concerned on a non-discriminatory basis irrespective of the agricultural activity (or activities) for which the operator needs short-term loans;
(ii) the aid must not exceed the difference between the interest rate paid by a typical operator in the agricultural sector and the interest paid in the rest of the economy of the Member State for short-term loans of a similar amount per operator, not linked with investments;
(iii) the amounts of subsidised loans must not exceed cash-flow requirements arising from the fact that production costs are incurred before income from output sales is received; in no case may aid be linked to particular marketing or production operations;
(iv) subsidised short-term loans may be granted for a maximum of one year.
In its letter of 19 December 1997, the Commission emphasised the need for strict and literal compliance with point (ii) above, namely that the aid must be limited to the interest rate differential between short-term loans in the agricultural sector and short-term loans in other economic sectors.
(31) Before the adoption of the abovementioned communication, the Commission, on the basis of its policy in force, would consider the aid measure compatible with the common market if it fulfilled two negative criteria (the subsidised loans should not be for more than one year and should not be granted for a single product or a single operation).
(32) It is therefore necessary to examine the aid measures in the light of the criteria set out above for short-term operating loans for the agricultural sector. In their written observations, the Italian authorities have also suggested that this is the appropriate basis for the assessment of the aid. In this context, it is appropriate to distinguish between aid for the 1995/1996 marketing year, and other aid which may have been granted on the basis of Article 16 of Law No 9/62.
(33) The detailed conditions for the payment of aid for the marketing year 1995/1996, were fixed by Decision No 47/17 (see points 8, 9 and 10 of this Decision).
(34) It is clear from the detailed conditions laid down for the payment of the aid that the loans do not meet the conditions set out at points 30(i) and (iv) above. In particular, aid is granted on a selective basis, in respect of a particular type of product only (products produced from sheep's and goat's milk) and only to certain types of producers, namely cooperatives and producer groups. Thus not only producers of other types of product, but certain categories of producers of the same product are excluded from the benefit of the aid. They therefore receive no State support to offset seasonal and other disadvantages. Furthermore, the duration of the loans exceeds one year. The aid measure must be considered incompatible with the communication. In so far as the duration of the loans exceeds one year, the aid is also incompatible with the policy previously applied by the Commission in this field.
(35) Furthermore, having regard to the detailed conditions laid down for payment of the aid, which appears to be granted on the quantity of milk sent for processing, and in the absence of any comments from the Italian authorities on this question, the Commission maintains the view that the aid is in breach of Article 24 of Regulation (EEC) No 804/68.
(36) As regards aids which may have been paid under Article 16 of Law No 9/62 for marketing years prior to the 1995/1996 marketing year, it must be noted that the Italian authorities have not responded to the Commission's decision to open the procedure under Article 93(2), neither have they responded to a reminder sent by the Commission. As a consequence the Commission lacks the information necessary to take a final decision.
(37) Accordingly, acting in accordance with the judgment of the Court of Justice of 14 February 1990(11), the Commission has decided to order Italy to provide full details of all aids which may have been granted under Article 16 of Law No 9/62 covering a period prior to the 1995/1996 marketing year. The information to be provided shall include copies of all Regional implementing decisions defining the rules for payment of such aid, together with details of the budgetary provisions allowed in each year.
VI
CONCLUSIONS
(38) In so far as Law No 9/62 and Decision No 47/17 were adopted and brought into effect without prior notification to the Commission, the Commission finds that Italy has unlawfully implemented the aid in question contrary to Article 93(3) of the Treaty.
(39) Furthermore the Commission finds that the aids in favour of cooperatives and producer groups in the sheep's and goat's milk sector granted by the Sardinia Region for the 1995/1996 marketing year on the basis of Article 16 of Law No 9/62, as implemented by Decision No 47/17, fall within the scope of the prohibition under Article 92(1) of the Treaty and do not qualify for exemption under Article 92(2) or (3). The aid in question is therefore incompatible with the common market.
(40) However, because the Italian authorities indicate in their reply to the opening of the procedure that the aid for the 1995/1996 marketing year was not granted since it was to have been paid retrospectively but payment was suspended after the opening of the procedure, there is no need to order the repayment of the aid in question,
HAS ADOPTED THIS DECISION:
Article 1
The State aids in favour of cooperatives and producer groups in the sheep's and goat's milk sector granted by the Sardinia Region for the 1995/1996 marketing year on the basis of Article 16 of Law No 9/62, as implemented by Decision No 47/17 of 24 October 1997 are incompatible with the common market.
Article 2
Italy shall withdraw the aid referred to in Article 1.
Article 3
Italy shall provide the Commission, within two months following notification of this Decision, with full details of all other aids which have been granted on the basis of Article 16 of Law No 9/62 for periods before the 1995/1996 marketing year.
Article 4
Italy shall inform the Commission, within two months following notification of this Decision, of the measures taken to comply with it.
Article 5
This Decision is addressed to the Italian Republic.
Done at Brussels, 30 March 1999.
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COMMISSION DECISION
of 27 June 2008
authorising the placing on the market of refined echium oil as novel food ingredient under Regulation (EC) No 258/97 of the European Parliament and of the Council
(notified under document number C(2008) 3049)
(Only the English text is authentic)
(2008/558/EC)
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to 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), and in particular Article 7 thereof,
Whereas:
(1)
On 11 August 2006 the company Croda Chemicals Ltd. made a request to the competent authorities of the United Kingdom to place refined echium oil on the market as a novel food ingredient.
(2)
On 12 July 2007 the competent food assessment body of the United Kingdom issued its initial assessment report. In that report it came to the conclusion that refined echium oil is safe for human consumption at the proposed uses.
(3)
The Commission forwarded the initial assessment report to all Member States on 1 August 2007.
(4)
Within the 60-day period laid down in Article 6(4) of Regulation (EC) No 258/97 reasoned objections to the marketing of the product were raised in accordance with that provision.
(5)
On 10 January 2008 in his response to the comments and objections, the applicant agreed to amend the specifications of the refined echium oil and to restrict its uses as requested by some Member States.
(6)
Refined echium oil complies with the criteria laid down in Article 3(1) of Regulation (EC) No 258/97.
(7)
The measures provided for in this Decision are in accordance with the opinion of the Standing Committee on the Food Chain and Animal Health,
HAS ADOPTED THIS DECISION:
Article 1
Refined echium oil as specified in Annex I, hereinafter called the product, may be placed on the market in the Community as a novel food ingredient for the uses and under the conditions specified in Annex II.
Article 2
The designation on the novel food ingredient authorised by this Decision on the labelling of the foodstuff containing it shall be ‘refined echium oil’.
Article 3
This Decision is addressed to Croda Chemicals Europe Ltd, Oak Road, Clough Road, Hull, East Yorkshire, HU6 7PH, United Kingdom.
Done at Brussels, 27 June 2008.
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COMMISSION REGULATION (EC) No 748/94 of 30 March 1994 modifying the entry into force of Regulation (EC) No 607/94
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Council Regulation (EEC) No 1766/92, of 30 June 1992 on the common organization of the market in cereals (1), as amended by Commission Regulation (EEC) No 2193/93 (2), and in particular Article 13 (6) thereof,
Whereas Commission Regulation (EC) No 607/94 (3) instituted a new nomenclature for the export refunds for cereal-based compound feedingstuffs; whereas technical difficulties mean that it is necessary to postpone the application of this Regulation,
Whereas the measures provided for in this Regulation are in accordance with the opinion of the Management Committee for Cereals,
HAS ADOPTED THIS REGULATION:
Article 1
In Article 3 of Regulation (EC) No 607/94 the date of 1 April 1994 is replaced by 1 May 1994.
Article 2
This Regulation shall enter into force on the day of its publication in the Official Journal of the European Communities.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 30 March 1994.
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COMMISSION REGULATION (EC) No 1128/96 of 24 June 1996 laying down detailed rules for the coupage of table wine in Spain
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Council Regulation (EEC) No 822/87 of 16 March 1987 on the common organization of the market in wine (1), as last amended by Regulation (EC) No 1544/95 (2), and in particular Articles 16 (5) and 83 thereof,
Whereas Article 16 (5) of Regulation (EEC) No 822/87 forbids in principle the coupage of a white table wine with a red table wine; whereas, a derogation is provided for Spain;
Whereas special detailed rules for the application of that derogation for Spain should be laid down based on the structure of the wine growing sector and consumer attitudes, which change slowly, pending resolution of the problem by the reform of the wine growing sector;
Whereas so that the possibility of carrying out coupage of white table wine and red table wine remains limited to the country where it is necessary, it is vital to ensure that wine produced by this practice cannot be consumed outside Spain;
Whereas Commission Regulation (EEC) No 2238/93 (3) provides for accompanying documents for the transport of wine products;
Whereas the measures provided for in this Regulation are in accordance with the opinion of the Management Committee for Wine,
HAS ADOPTED THIS REGULATION:
Article 1
1. In application of Article 16 (5) of Regulation (EEC) No 822/87, coupage of a wine suitable for yielding a white table wine or of a white table wine with a wine suitable for yielding a red table wine or with a red table wine shall be permitted in Spain provided that the product obtained has the characteristics of a red table wine and that the proportion of red wine used is not less than 75 %.
2. Spanish red and rosé table wine resulting from coupage as referred to in paragraph 1 may not be traded with other Member States or exported to third countries.
3. For the application of paragraph 2, the competent authority designated by Spain shall guarantee the origin of Spanish red and rosé table wine by affixing a stamp in the box reserved for official comments on the document provided for by Regulation (EEC) No 2238/93 preceded by the words 'wine not produced by white/red coupage`.
Article 2
This Regulation shall enter into force on the day of its publication in the Official Journal of the European Communities.
It shall apply from 1 January 1996.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 24 June 1996.
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COMMISSION DECISION
of 28 October 2009
on State aid C 59/07 (ex N 127/06 and NN 13/06) implemented by Italy for Ixfin SpA
(notified under document C(2009) 8123)
(Only the Italian text is authentic)
(Text with EEA relevance)
(2010/359/EC)
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community, and in particular the first subparagraph of Article 88(2) thereof,
Having regard to the Agreement on the European Economic Area, and in particular Article 62(1)(a) thereof,
Having called on interested parties to submit their comments (1) pursuant to the provisions cited above and having regard to their comments,
Whereas:
I. PROCEDURE
(1)
On 18 November 2005 Italy adopted a decree on the basis of which the granting of a rescue aid guarantee to Ixfin SpA (hereinafter ‘Ixfin’ or ‘the company’) was envisaged. Following notification from the Italian authorities on 23 February 2006, the Commission initially registered the case as N 127/2006. Once it was ascertained that the aid had already been granted as from December 2005, in breach of the standstill clause, the case was reregistered under number NN 13/2006.
(2)
By letter dated 5 April 2006, the Commission requested further information, which Italy supplied by letter registered as received on 29 May 2006. A meeting with the Italian authorities took place on 9 June 2006. At this meeting, Italy informed the Commission that a restructuring plan would be submitted.
(3)
By letter registered as received on 13 June 2006, Italy informed the Commission that, following a request from Ixfin to increase the aid amount up to EUR 17,3 million, the Italian authorities had expressed their provisional agreement, subject, however, to a favourable opinion by the Commission. By letter dated 19 June 2006, the Commission requested further information, which Italy supplied by letter registered as received on 26 June 2006.
(4)
On 5 July 2006 the Commission sent a reminder concerning the restructuring plan that had been announced.
(5)
By letter registered as received on 9 August 2006, Italy submitted further information confirming that the company had been declared bankrupt by the Naples Court (hereinafter referred to as ‘the Court’) on 5 July 2006. Following a request by the Commission for further information dated 29 November 2006, Italy submitted part of the requested information by letter dated 7 December 2006. The Commission sent a reminder on 22 December 2006 requesting Italy to submit the missing information while specifying in more detail which information would be needed. In particular, the Commission asked whether the company might foreseeably be liquidated, involving the cessation of all business activities, at the end of the insolvency proceedings or whether there was any possibility that the company’s business activities might be continued in any form, for instance as the result of a sale as a going concern.
(6)
By letter dated 14 March 2007, Italy replied confirming the cessation of all activities. In the same letter, however, Italy explained that it was not possible at that point to indicate whether the business activities of the company could potentially be resumed due to difficulties in gathering the relevant information. On 14 June 2007 the Commission asked Italy to keep it updated about any further measures in the insolvency proceedings while specifying which information would be deemed crucial.
(7)
In October 2007 the Commission learned in the press about the possibility of Ixfin receiving restructuring aid.
(8)
On 11 December 2007 the Commission adopted a decision to open the formal investigation procedure (2) (hereinafter referred to as ‘the opening Decision’) as well as issuing an information request asking the Italian authorities a series of questions to be answered in one month, and inviting third parties to submit their comments. On 7 January 2008 Italy asked for an extension to the time limit for comments on the opening Decision. An extension until 12 February 2008 was granted the same day. Italy provided only partial information by e-mails of 15 January 2008, 12 March 2008 and 25 March 2008.
(9)
On 25 March 2008 the Commission received third-party comments from the special administrator appointed in the insolvency proceedings (hereinafter ‘the Administrator’) which were forwarded to Italy on 18 April 2008 together with a request for information. On 24 April 2008 Italy replied to this request and commented on the third-party observations.
(10)
On 20 October 2008 the Commission asked for further information, which Italy provided by letter dated 30 October 2008. The Italian authorities forwarded the Commission’s request to the Administrator. The Administrator submitted further information on 18 November 2008.
II. DETAILED DESCRIPTION OF THE MEASURE
II.1. Beneficiary
(11)
Ixfin is a large company based in Marcianise (Caserta), in the Campania Region.
(12)
Ixfin is an Italian company active in the contract manufacturing sector, producing and assembling disks and other electronic products, as well as in call centres and logistics.
(13)
Until 1999 it was a subsidiary of the Olivetti Group and its output was sold under the Olivetti brand. In 1999 Olivetti decided to divest all its production activities and Ixfin was sold to Finmek SpA.
(14)
Since 2003 Ixfin has been controlled by Maxfin Srl, which, in turn, is controlled by Pufin Srl. Pufin Srl, which operates in business services (commercial, administrative, logistic), is the parent company of the Pufin Group, owned by the Pugliese family.
(15)
Ixfin controls directly and indirectly four other companies, namely Nicofin Srl (99 %), Uni.com Partecipazioni Srl (100 %), Uni.com SpA. (100 %) and Uni.com Ricerche Srl (100 %).
(16)
The origin of Ixfin’s difficulties lay, among other causes, in the fact that the company acted essentially as a subcontractor for third parties and was therefore dependent on their orders. In the last decade the electronics market has suffered a general crisis, which the companies belonging to this market segment have overcome either by raising efficiency through economies of scale or by relocating production to low-labour-cost countries.
(17)
As soon as Ixfin began to experience serious difficulties it was sold in March 2004 to an investor willing to provide the resources necessary to re-launch the company’s activities. The investor’s plan was not implemented, however, with the result that as of September 2004 the company encountered solvency problems. In December 2004 the company, with an additional loss of EUR 20 million, was sold back to the Pufin Group. The transaction was carried out for a purely symbolic price. In December 2004 it ceased its activities.
(18)
Ixfin’s financial position at the time when aid was granted is outlined in the table below.
Table 1
(in EUR)
Turnover
Net profit/(loss)
Tax arrears
Social Security arrears
31.12.2003
104 000 000
11 000
9 000 000
20 800 000
31.12.2004
75 000 000
(2 000 000)
14 800 000
26 100 000
31.5.2005
3 000 000
(4)
16 000 000 (3)
27 700 000 (3)
II.2. Aid measure
(19)
On 18 November 2005 the Ministry of Economic Development (hereinafter ‘the Ministry’) issued a decree on the basis of which it envisaged the granting of a rescue aid guarantee to Ixfin. Financing was to come from funds established on the basis of Decree Law No 35 of 14 March 2005 (5) (the ‘decreto competitività’), as later amended by Article 11 of Law No 80 of 14 May 2005 (6) and clarified by Decision No 101 of the Comitato Interministeriale per la Programmazione Economica (Interministerial Economic Planning Committee) of 29 June 2005, which stipulates that any such support must be given solely by way of a guarantee and for the purpose of rescuing a company in difficulty.
(20)
The guarantee was given to cover a loan from BancApulia (hereinafter ‘the Bank’) for EUR 15 million, at the EURIBOR 3-month rate plus 1,25 p.p., i.e. an initial interest rate of 3,591 %. The duration of the loan was six months beginning from 30 December 2005.
(21)
The aid was used mainly to pay a part of the company’s debts. Italy claimed that these payments were urgent since some of the creditors had already begun court proceedings to enforce their claims.
(22)
The Italian authorities, moreover, informed the Commission that Ixfin had asked for the amount covered by the guarantee to be raised to EUR 17,3 million.
II.3. Ixfin’s insolvency
(23)
On 5 July 2006 the company was formally declared bankrupt and liquidation proceedings (hereinafter referred to as ‘procedura fallimentare’ or ‘fallimento’) were opened (7).
(24)
In March 2007 the Ministry, which had its claim registered under the bankruptcy proceedings, asked the relevant court to have the fallimento proceedings changed into extraordinary administration proceedings, a court-administered procedure which, when complete, may allow the undertaking concerned to continue to operate (hereinafter ‘amministrazione straordinaria’) (8), a measure established by the Legislative Decree No 270 of 8 July 1999 (hereinafter ‘Legislative Decree No 270/1999’).
(25)
Moreover, the Commission, before opening the formal investigation procedure, learned in the press that Ixfin could possibly be admitted to amministrazione straordinaria thanks to an agreement for the industrial regeneration of the Caserta area (‘Protocollo d’intesa per la reindustrializzazione della Provincia di Caserta’, hereinafter ‘the Protocollo’). This agreement, signed by the Italian institutions, the unions and the employers’ organisation Confindustria, allowed, by way of various measures, for an investment amounting to between EUR 40 million and EUR 60 million. According to the information available to the Commission at that stage, it appeared that this agreement was aimed at restoring production and preserving employment at the industrial sites in the province of Caserta.
III. DOUBTS EXPRESSED BY THE COMMISSION WHEN INITIATING THE ARTICLE 88(2) PROCEDURE
(26)
In its decision initiating the procedure, the Commission, on the basis of the information available at that stage, expressed doubts regarding the compatibility of the rescue aid with the Community guidelines on State aid for rescuing and restructuring firms in difficulty (9) (hereinafter ‘the Guidelines’).
(27)
The Commission asked Italy to provide further information to demonstrate Ixfin’s eligibility for the aid and, in order to show that the difficulties were too serious to be dealt with by the group itself, the balance sheets for Pufin and Maxfin.
(28)
As regards the compatibility of the rescue aid with the Guidelines, the Commission questioned whether point 25(d) of the Guidelines was met. In order to fulfil that condition, the amount of rescue aid should be limited to the minimum required to keep the firm in business for the period during which the aid is authorised. In this respect, Italy was asked to provide more information on the suitability of the amount of rescue aid, among other points, confirmation that the guarantee was limited to a EUR 15 million loan and not to be increased to EUR 17,3 million as requested by the company.
(29)
The Commission, moreover, emphasised that the rescue aid could not be essentially aimed at delaying insolvency but must be channelled towards restructuring. Still, it appeared to the Commission that the purpose of the rescue aid seemed to be solely to reschedule debt repayments and thereby to save the company from insolvency. The Commission asked, among other things, for evidence that Ixfin was attempting to draw up a restructuring plan during this period.
(30)
The Commission also questioned whether the aid abided by point 25(c) of the Guidelines, which stipulates that the Member State must communicate, not later than six months after the first implementation of a rescue aid measure, a restructuring plan or a liquidation plan or proof that the guarantee has been terminated.
(31)
The Commission further expressed doubts if the ‘one time, last time’ principle as stipulated in points 72 et seq. of the Guidelines was complied with.
(32)
Moreover, in the opening Decision the Commission expressed doubts whether Ixfin benefited from additional aid (see recital 25 of the present Decision) in order to facilitate the outcome of the bankruptcy proceedings. The Commission noted that, even if such aid had been granted under Law No 181 of 1989 (or its later prolongations), it would not make it compatible with the Commission Decision in case N 214/2003, since the authorisation was allegedly based on the exclusion pursuant to Article 9 of companies in difficulty. Ixfin is, however, clearly a company in difficulty on the basis of point 10(c) of the Guidelines since it is the subject of bankruptcy proceedings. Therefore, the Commission observed that any such support can only be considered compatible as restructuring aid if it complies with the conditions stipulated in points 31-51 of the Guidelines.
(33)
However, the Commission did not receive any restructuring aid notification nor was it informed of any restructuring plan, which might have enabled the aid to fulfil the basic conditions required for authorisation as restructuring aid under the Guidelines. In particular, the Commission had serious doubts as to whether, had a restructuring plan existed, it would have been capable of restoring the operational and financial profitability of the company.
IV. COMMENTS FROM THE ITALIAN AUTHORITIES
(34)
On 15 January 2008 the minutes of the meeting of 9 January 2008 on Ixfin held at the Ministry were forwarded to the Commission. It transpired from those minutes that the Ministry had decided to lodge an appeal against the court’s decision not to admit Ixfin to amministrazione straordinaria.
(35)
On 12 March 2008 the Italian authorities informed the Commission by email that they had had difficulties obtaining the information requested and asked for an interim solution. On 25 March 2008 the Italian authorities confirmed that the alleged restructuring aid, amounting to EUR 40 million, had indeed not been granted to Ixfin.
V. COMMENTS FROM THIRD PARTIES
(36)
By letter dated 27 March 2008, the Commission received comments from the Administrator of Ixfin.
(37)
As regards the insolvency of Ixfin, the Administrator explained that at that time Ixfin was still the subject of fallimento proceedings. For fallimento proceedings to be transformed into amministrazione straordinaria proceedings, there were indeed procedural and substantive requirements. By its order of 4 January 2008, the Court ruled that that the conditions to restore the economic equilibrium of the company were lacking and thus the fallimento proceedings could not be replaced by amministrazione straordinaria proceedings. That ruling was challenged by the Ministry before the Naples Court of Appeal (hereinafter ‘the Court of Appeal’).
(38)
Moreover, the Administrator explained that, since the company was still engaged in fallimento proceedings, its economic activity had ceased.
(39)
As for the Protocollo, the Administrator explained that that agreement was adopted by the Prime Minister’s Office on 20 June 2007. On 25 October 2007, a coordination group met which was supposed to draw up a more precise investment programme. However, as is apparent from the Administrator’s comments, especially from the Court’s ruling, there was no concrete follow-up on the investment programme, which remained an abstract document containing no indications of the projects to be supported or any funds which might be used. The Administrator further emphasised that no other public resources, apart from the rescue aid, were granted for the rescue and/or restructuring of Ixfin.
(40)
The Administrator also indicated that on 23 June 2006 Ixfin submitted a draft restructuring plan to Sviluppo Italia SpA, which had not been acted upon in view of the company’s bankruptcy. The Administrator forwarded a copy of the draft restructuring plan, drawn up by a consultant, to the Commission.
(41)
With respect to the adequacy of the amount of rescue aid, the Administrator passed on to the Commission the applications for rescue aid which were submitted by Ixfin to Sviluppo Italia SpA on 30 September 2005 and 11 November 2005.
(42)
Since the Commission had asked for the balance sheets of Pufin and Maxfin for the years 2004, 2005 and 2006, the Administrator submitted copies of them.
(43)
As for the execution of the state guarantee, the Administrator stated that on 3 July 2006 the Bank had asked the Ministry to repay the guaranteed loan.
VI. ITALY’S COMMENTS ON THE THIRD-PARTY OBSERVATIONS
(44)
The Italian authorities commented on the third-party observations. They stated, among other things, that they were now in a better position than before to respond to the allegations contained in the Decision to open the formal investigation procedure.
(45)
As regards the state guarantee on the EUR 15 million loan from the Bank, the Italian authorities clarified the following points.
(46)
First, the Italian authorities confirmed that the guaranteed was limited to a EUR 15 million loan and was thus not raised to EUR 17,3 million. They emphasised, moreover, that the amount of rescue aid had been calculated according to the formula contained in the Annex to the Guidelines.
(47)
Second, the Ministry, by its submissions dated 21 April 2008 and 30 October 2008, informed the Commission that the Bank had called the guarantee on the EUR 15 million loan plus relevant interest, for a total amount of EUR 15 154 457,72, on 3 July 2006. The Italian authorities also forwarded a letter of 20 September 2006, on the basis of which the Ministry of the Economy and Finance paid the Bank on 27 September 2006. By this payment, the Ministry obtained the rights as creditor for that amount in respect of Ixfin.
(48)
Third, the Italian authorities submitted a copy of a letter of 30 November 2006 by which the Ministry asked the competent authorities (the Naples public prosecutor’s office) to submit a request for it to be added to the list of creditors, in accordance with Article 93 of Legislative Decree No 270/1999.
(49)
As regards Ixfin’s fallimento proceedings, the Italian authorities stated that from the declaration of bankruptcy on 5 July 2006, the company had remained subject to fallimento proceedings and confirmed the information submitted by the Administrator in that respect. Furthermore, the Italian authorities confirmed that the appeal against the court’s ruling was still pending.
(50)
As for the Protocollo, the Italian authorities annexed a copy of it and stated that it does not provide for any aid for Ixfin.
(51)
The Italian authorities, moreover, sent the Commission a copy of the draft notification of the restructuring plan, which, however, as they stated, was not subsequently sent to the Commission since the Court had officially declared Ixfin insolvent.
(52)
The Italian authorities also submitted a copy of the loan agreement between the Bank and Ixfin, from which it transpires that the loan was granted on 30 December 2005 at an interest rate of 3,591 % (see recital 20 of this Decision) and not 3,752 %, as indicated in point 15 of the opening Decision on the basis of the information initially available.
VII. EVENTS SUBSEQUENT TO THE OPENING OF THE FORMAL INVESTIGATION PROCEDURE
(53)
By its order of 4 June 2008, notified on 15 July 2008, the Court of Appeal upheld the ruling of the Court and thus the conclusion that the substantive conditions did not exist to replace the fallimento proceedings by amministrazione straordinaria proceedings. The Ministry has lodged an appeal against the ruling with the Supreme Court of Cassation, which has yet to give its final ruling on the case.
(54)
In this regard the Commission observes that pursuant to Articles 66 to 68 of the Notice from the Commission - Towards an effective implementation of Commission decisions ordering Member States to recover unlawful and incompatible State aid (10) - national authorities are allowed to support the continuation of the economic activity of the beneficiary only as far as it allows immediate and effective recovery of aid.
VIII. ASSESSMENT OF THE AID
VIII.1. Existence of State aid
(55)
Article 87(1) of the EC Treaty stipulates that any aid granted by a Member State or through state resources in any form whatsoever which distorts or threatens to distort competition by favouring certain undertakings or the production of certain goods is, in so far as it affects trade between Member States, incompatible with the common market.
(56)
The guarantee for Ixfin was granted by the Italian State with its own funds, as Ixfin did not pay any premium for it. It enabled Ixfin to obtain a loan, which, as a company in severe financial distress, it could not have obtained without the state guarantee. Therefore, by providing a guarantee for the loan, a selective advantage was conferred on Ixfin through state resources.
(57)
Rescue and restructuring aid is regarded as being among the most distortive types of State aid since it makes it possible to sustain a company which, without state intervention, would exit the market. Ixfin was active in the production and distribution of electronic components for both the automotive and the telecommunications sectors. These products are traded within the EU and the relevant market is supranational, as pointed out in the decision from the Italian competition authority (11). Moreover, at the time of receiving the aid, Ixfin planned to resume its production activity. Thus, the advantage it obtained through the guarantee enabled it to take measures to rescue the company and eventually continue the economic activity for a certain period. Therefore, it can be concluded that the aid in question distorts or is likely to distort competition and affect trade between Member States, by favouring certain undertakings.
(58)
Moreover, point 3(2)(a) of the Notice on the application of Articles 87 and 88 of the EC Treaty to State aid in the form of guarantees (12) (hereinafter ‘the Notice’) sets out a number of requirements to exclude from a public guarantee any element of State aid: the beneficiary must not be in financial difficulties, the guarantee must not cover more than 80 % of the outstanding loan, and a market-oriented premium must be paid. In the present case the guarantee covers the totality of the loan, no premium has been paid and, as will be shown below in Section VIII.2.1, the beneficiary is a company in difficulty.
(59)
The measure therefore constitutes State aid within the meaning of Article 87(1) of the EC Treaty.
VIII.2. Compatibility of State aid with the common market
(60)
The exemptions pursuant to Article 87(2) of the EC Treaty do not apply in the present case. As for the exemptions pursuant to Article 87(3) of the EC Treaty, since the primary objective of the aid is to restore the long-term viability of the company, only the exemption in Article 87(3)(c) of the EC Treaty, which allows for State aid to be granted to facilitate the development of certain economic activities or of certain economic areas, where such aid does not adversely affect trading conditions to an extent contrary to the common interest, can be applied. The aid can only be considered compatible with the common market on the basis of Article 87(3)(c) of the EC Treaty if the conditions laid down in the Community Guidelines on State aid for rescuing and restructuring firms in difficulty are respected.
VIII.2.1. Eligibility of the company in difficulty for State aid
(61)
According to point 9 of the Guidelines, the Commission considers a firm to be in difficulty where it is unable, whether through its own resources or with the funds it is able to obtain from its owner/shareholders or creditors, to stem losses which, without outside intervention by the public authorities, will almost certainly condemn it to go out of business in the short or medium term. Point 11 of the Guidelines indicates that the usual signs of a firm in difficulty are increasing losses, diminishing turnover, growing stock inventories, excess capacity, declining cash flow, mounting debt, rising interest charges and falling or nil asset value. Table 1 shows that debts were increasing, cash flow was declining and turnover went from EUR 104 million to EUR 3 million in just 17 months.
(62)
According to point 10(c) of the Guidelines a firm is also regarded as being in difficulty where it fulfils the criteria under its domestic law for being the subject of collective insolvency proceedings. In the present case, signs of insolvency, namely the inability of the company to fulfil its obligations in a timely manner, appeared as early as September 2004. Moreover, Italy claimed that it granted rescue aid before the notification due to urgent liquidity needs of the company. Finally, the bankruptcy of Ixfin was declared by the competent court on 5 July 2006.
(63)
Based on the above, the Commission considers that Ixfin is a firm in difficulty within the meaning of points 10 and 11 of the Guidelines.
(64)
It should, however, be noted that, according to point 13 of the Guidelines, companies that are part of a group are as a rule not eligible for restructuring aid, except where it can be demonstrated that the firm’s difficulties are intrinsic and are not the result of an arbitrary allocation of costs within the group, and that the difficulties are too serious to be dealt with by the group itself.
(65)
Ixfin is part of the Pufin group. It should first be noted that Ixfin has debts of EUR 3,7 million towards its parent company Maxfin. Second, after the opening of the formal investigation, the Italian authorities submitted to the Commission the balance sheets of Maxfin of 30 April 2005, 30 April 2006 and 30 June 2006 and balance sheets of Pufin of 30 June 2004, 30 June 2005 and 30 June 2006. The financial results of Pufin and Maxfin from 2003 to 2005 are shown in Table 2. Table No 2 demonstrates that neither the financial situation of Maxfin nor that of Pufin was such as to enable them to grant Ixfin the resources required on a scale comparable to the rescue aid granted by Italy. Third, the financial means of Ixfin’s subsidiaries are not such as to have enabled them to free up there sources necessary to save Ixfin. It can be thus concluded that neither Pufin, nor Maxfin nor Ixfin’s subsidiaries were able to finance the rescue of Ixfin and thus that Ixfin’s difficulties were too serious to be dealt with by the group itself.
Table 2
(in EUR)
2003
2004
2005
Maxfin
20 037 975
2 529 725
(997)
Pufin
12 710 759
(148 361)
(24 349)
(66)
In order to dispel the Commission’s doubts as to whether the company’s difficulties were intrinsic and not the result of an arbitrary allocation of costs within the group, the Italian authorities first provided information which indicates that the difficulties of the company were due to several factors: a decrease in orders, mainly from its principal clients, and an increase of debts, in particular after the company was managed by the investor between March and December 2004 (as indicated in recital 17 of this Decision). Second, the Italian authorities pointed out that the parent company, after having bought back Ixfin, did not carry out any transaction which would amount to an arbitrary allocation of costs within the group.
(67)
Therefore the Commission, basing itself on the information at its disposal, considers that Ixfin complies with the conditions laid down in point 13 of the Guidelines.
VIII.2.2. Compatibility of the rescue aid with the common market
(68)
Rescue aid must meet the conditions set out in point 25 of the Guidelines in order to be compatible with the common market.
(69)
According to point 25(a) of the Guidelines, rescue aid must consist of liquidity support in the form of loan guarantees or loans; in both cases, the loan must be granted at an interest rate at least comparable to those observed for loans to healthy firms.
(70)
First, in the present case the rescue aid consists of liquidity support (see recital 20 of this Decision). As far as the interest rate is concerned, the Commission has to review its preliminary finding that this seemed to correspond to the rate normally applied to healthy companies. In fact, since the interest rate actually applied to the guaranteed loan was 3,591 %, compared to the Commission’s reference rate for Italy of 4,08 %, the Commission concludes that it is not comparable to that normally applied to healthy companies. The Commission therefore considers that the rescue aid granted to Ixfin does not comply with the criteria of point 25(a) of the Guidelines.
(71)
As regards, in the present case, the conditions in point 25(b) of the Guidelines, the Commission considers that they have been met, since the rescue aid is aimed at mitigating serious social difficulties, while it has no unduly adverse spillover effects on other Member States.
(72)
According to point 25(d) of the Guidelines, rescue aid must be restricted to the amount needed to keep the firm in business for the period during which the aid was authorised; the amount necessary should be based on the liquidity needs of the company stemming from losses. The Commission observes that, although the amount of aid complies with the formula set out in the Annex to the Guidelines for determining the liquidity needs of the company, it amounts to over EUR 10 million and the Italian authorities have not provided sufficient elements to explain why this amount corresponded to what was specifically required by Ixfin in order to remain afloat. Therefore, the Commission considers that it has not been sufficiently proven that the amount of aid received constitutes the minimum necessary to keep the company in business in the rescue period as required by point 25(d) of the Guidelines.
(73)
According to point 25(e) of the Guidelines, aid must be granted in accordance with the ‘one time, last time’ principle as stipulated in points 72 et seq. of the Guidelines. The Italian authorities have submitted that the ‘one time, last time’ principle has been complied with, i.e. that the company did not benefit from any rescue or restructuring aid in the last ten years. The Commission, therefore, on the basis of the information at its disposal, considers that the criterion in point 25(e) of the Guidelines has been met.
(74)
In the present case, the period of six months during which rescue aid can be granted according to point 25(c) of the Guidelines started on 30 December 2005 and elapsed on 30 June 2006. According to the last clause of point 25(a) of the Guidelines, any loan must be reimbursed and any guarantee must come to an end within a period of not more than six months after the disbursement of the first instalment to the firm. Moreover, the last clause of point 25(c) stipulates that ‘in the case of non-notified aid the Member State must communicate, no later than six months after the first implementation of a rescue aid measure, a restructuring plan or a liquidation plan or proof that the loan has been reimbursed in full and/or that the guarantee has been terminated’. An exception to the six-month rule exists pursuant to point 26 of the Guidelines, if the Member State submits a restructuring plan or a liquidation plan within the six-month period. Neither restructuring plan nor liquidation plan was submitted to the Commission within the aforementioned period. Further, the guarantee was called on 3 July 2006 and Ixfin did not reimburse the loan at all. Therefore, the rescue aid to Ixfin must be considered as incompatible with the common market.
VIII.2.3. Restructuring aid
(75)
The Commission cannot consider the rescue aid as a restructuring measure. First, no restructuring plan was submitted to the Commission. Second, the rescue aid does not comply with the requirements of points 31 et seq. of the Guidelines, which lay down the conditions of compatibility of restructuring measures with the common market. The Commission does not therefore possess any more elements that would allow it to regard the rescue aid as compatible as a restructuring measure.
(76)
As regards the presumed granting of restructuring aid, on the basis of the information submitted to the Commission in the course of the formal investigation procedure, any doubts as to whether restructuring aid (see recital 32 of this Decision) was granted to Ixfin were dispelled. Therefore, since the existence of the restructuring aid has not been confirmed, assessing its compatibility with the common market has become irrelevant.
IX. CONCLUSION
(77)
The Commission terminates the formal investigation procedure initiated by the Decision of 11 December 2007 concerning the unlawfully granted rescue aid and a presumed restructuring aid measure.
(78)
The Commission concludes that the State aid in the form of a guarantee on a loan amounting to EUR 15 million unlawfully granted by Italy to Ixfin SpA, in breach of Article 88(3) of the EC Treaty, is incompatible with the common market. Italy must recover the incompatible aid from the company.
(79)
In quantifying the amount of aid, the Commission would refer to paragraph 4.1(a) of the Notice, where it is stated that ‘for companies in difficulty, a market guarantor, if any, would, at the time the guarantee is granted charge a high premium given the expected rate of default. If the likelihood that the borrower will not be able to repay the loan becomes particularly high, this market rate may not exist and in exceptional circumstances the aid element of the guarantee may turn out to be as high as the amount effectively covered by that guarantee’.
(80)
In the light of the severe financial difficulties of Ixfin at the time the guarantee was granted, the Commission considers that it was highly unlikely that the company would have been able to obtain a bank loan on the market without the state intervention; therefore, the Commission concludes that the amount of aid corresponds to the totality of the amount of the loan.
(81)
The formal investigation regarding the presumed restructuring aid is closed since, during the course thereof, the granting of restructuring aid to Ixfin was not confirmed,
HAS ADOPTED THIS DECISION:
Article 1
The State aid in the form of a guarantee, unlawfully granted by Italy in breach of Article 88(3) of the EC Treaty, to cover the loan granted by BancApulia on 30 December 2005 to Ixfin, is a State aid measure and is incompatible with the common market.
Article 2
1. Italy shall recover the aid referred to in Article 1 from the beneficiary.
2. The sums to be recovered shall bear interest from the date on which they were put at the disposal of the beneficiary until their actual recovery.
3. This interest should be calculated on a compound basis in accordance with Chapter V of Commission Regulation (EC) No 794/2004 (13).
4. Italy shall cancel all outstanding payments of the aid referred to in Article 1 with effect from the date of adoption of this Decision.
Article 3
1. Recovery of the aid referred to in Article 1 shall be immediate and effective.
2. Italy shall ensure that this Decision is implemented within four months following the date of its notification.
Article 4
1. Within two months following notification of this Decision, Italy shall submit the following information to the Commission:
(a)
the total amount (principal and interest) to be recovered from the beneficiary;
(b)
a detailed description of the measures already taken and planned to comply with this Decision;
(c)
documents demonstrating that the beneficiary has been ordered to repay the aid.
2. Italy shall keep the Commission informed of the progress of the national measures taken to implement this Decision until recovery of the aid referred to in Article 1 has been completed. It shall immediately submit, on simple request by the Commission, information on the measures already taken and planned to comply with this Decision. It shall also provide detailed information concerning the amounts of aid and interest already recovered from the beneficiary.
Article 5
This Decision is addressed to Italian Republic.
Done at Brussels, 28 October 2009.
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Commission Decision
of 11 July 2000
amending Decision 96/252/EC accepting undertakings offered in connection with the anti-dumping proceeding concerning imports of certain tube or pipe fittings, of iron or steel, originating in the People's Republic of China, Croatia and Thailand
(notified under document number C(2000) 1957)
(2000/453/EC)
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Council Regulation (EC) No 384/96 of 22 December 1995 on protection against dumped imports from countries not members of the European Community(1), as amended by Regulation (EC) No 905/98(2), and in particular Article 8(1) thereof,
Having regard to Commission Decision 96/252/EC(3) and in particular Article 1 thereof,
After consulting the Advisory Committee,
Whereas:
A. PREVIOUS PROCEDURE
(1) The Council, by Regulation (EC) No 584/96 imposed definitive anti-dumping duties on imports of certain tube or pipe fittings, of iron or steel originating in the People's Republic of China, Croatia and Thailand and by Decision 96/252/EC accepted undertakings from certain exporting producers. These undertakings concerned also the Thai company Thai Benkan Co. Ltd.
B. PRESENT INVESTIGATION
(2) The present investigation carried out in the framework of an interim review requested by one Thai producer/exporter Thai Benkan Co. Ltd, has led to a finding of no dumping for the exporter concerned and has confirmed the lasting nature of these changed circumstances(4).
Therefore, it is proposed to amend Article 1 of Decision 96/252/EC by deleting the reference to the undertaking of Thai Benkan Co. Ltd Prapadaeng-Samutprakarn,
HAS ADOPTED THIS DECISION:
Article 1
Article 1(b) of Decision 96/252/EC shall be amended as follows.
The reference to Thai Benkan Co. Ltd, Prapadaeng-Samutprakarn shall be deleted.
Article 2
This amendment shall take effect on the day following publication of this Decision in the Official Journal of the European Communities.
Done at Brussels, 11 July 2000.
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*****
COMMISSION DIRECTIVE
of 31 January 1985
adapting to technical progress Council Directive 73/362/EEC on the approximation of the laws of the Member States relating to material measures of length
(85/146/EEC)
THE COMMISSION OF THE EUROPEAN
COMMUNITIES,
Having regard to the Treaty establishing the European Economic Community,
Having regard to Council Directive 71/316/EEC of 26 July 1971 on the approximation of the laws of the Member States relating to common provisions for both measuring instruments and methods of metrological control (1), as last amended by Directive 83/575/EEC (2), and in particular Article 17 thereof,
Whereas Council Directive 73/362/EEC (3), as amended by Directive 78/629/EEC (4), should be amended to take account of technical developments in the field concerned;
Whereas the framework Directive 71/316/EEC has been adapted to technical progress in the manufacture of measuring instruments and accordingly permits statistical checks to be carried out for the purposes of EEC initial verification in accordance with the procedure laid down in the separate Directives; whereas, therefore, certain additions have to be made to the Annex to the specific Directive 73/362/EEC in order to determine the procedure for those checks;
Whereas, pursuant to those additions, it is necessary to state more specifically the conditions for the granting of EEC pattern approval and initial verification relating to material measures of length;
Whereas the provisions of this Directive are in accordance with the opinion of the Commission on the adaptation to technical progress of the Directives for the removal of technical barriers to trade in measuring instruments,
HAS ADOPTED THIS DIRECTIVE:
Article 1
In the Annex to Directive 73/362/EEC:
1. Points 2.1, 7, 7.1, 7.4 and 8 are hereby amended in accordance with the corresponding points in the Annex hereto.
2. Points 10, 11 and 12 in the Annex hereto are hereby added.
Article 2
Member States shall bring into force the laws, regulations and administrative provisions needed in order to comply with this Directive on 1 January 1986. They shall forthwith inform the Commission thereof.
Article 3
This Directive is addressed to the Member States.
Done at Brussels, 31 January 1985.
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COMMISSION REGULATION (EC) No 100/2008
of 4 February 2008
amending, as regards sample collections and certain formalities relating to the trade in species of wild fauna and flora, Regulation (EC) No 865/2006 laying down detailed rules for the implementation of Council Regulation (EC) No 338/97
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Council Regulation (EC) No 338/97 of 9 December 1996 on the protection of species of wild fauna and flora by regulating trade therein (1), and in particular Article 19(1)(i) and (iii), (2) and (4) thereof,
Whereas:
(1)
In order to implement certain resolutions adopted at the thirteenth and fourteenth meetings of the Conference of the Parties to CITES, further provisions should be added to Commission Regulation (EC) No 865/2006 of 4 May 2006 laying down detailed rules concerning the implementation of Council Regulation (EC) No 338/97 on the protection of species of wild fauna and flora by regulating trade therein (2).
(2)
CITES Resolutions Conf. 9.7 (Rev. CoP13) on Transit and Trans Transhipment and Conf. 12.3 (Rev. CoP13) on Permits and Certificates provide for special procedures in order to ease the cross-border movement of sample collections covered by ATA carnets as defined 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 (3). In order to provide economic operators within the Community with similar conditions as those of other CITES Parties for the movement of such sample collections, it is necessary to make provision for such procedures in Community legislation.
(3)
CITES Resolution Conf. 12.3 (Rev. CoP13) on Permits and Certificates allows for permits to be issued retrospectively for personal and household effects, where the Management Authority is satisfied that a genuine error was made and that there was no attempt to deceive, and requires Parties to report on such permits in the biennial reports to the Secretariat. Provision should be made to that effect in order to allow for adequate flexibility and to reduce the bureaucratic burden in relation to imports of personal and household effects.
(4)
CITES Resolution Conf. 13.6 on the implementation of Article VII, paragraph 2 of the Convention concerning ‘pre-Convention’ specimens provides a definition of ‘pre-Convention’ specimen and clarifies the dates that are to be taken to establish whether a specimen can be considered as ‘pre-Convention’. For clarity purposes, these provisions should be implemented in Community Legislation.
(5)
CITES Resolution Conf. 13.7 (Rev. CoP14) on Control of Trade in Personal and Household Effects provides a list of species for which no document is required for the export and import of specimens that are Personal and Household Effects below a certain amount. This list includes derogations for giant clams and seahorses as well as for a reduced quantity for caviar, which should be implemented.
(6)
CITES Resolution Conf. 12.7 (Rev. CoP14) on Conservation of and Trade in sturgeons and paddlefish sets out specific conditions for Parties to allow imports, exports and re-exports of caviar. In order to reduce fraud, these provisions should be implemented in Community Legislation.
(7)
At the fourteenth meeting of the Conference of the Parties to CITES, the standard references for nomenclature, to be used to indicate scientific names of species in permits and certificates, were updated and the listing of animal species in the CITES Appendices were rearranged in order to present the orders, families and genera in alphabetical order. These changes therefore need to be reflected in Annex VIII and Annex X of Regulation (EC) No 865/2006.
(8)
The Conference of the Parties to CITES has adopted a Biennial report format for the submission of the biennial reports required under Article VIII, paragraph 7(b) of the Convention. Member States should therefore submit their biennial reports in accordance with Biennial report format, as regards information required under the Convention, and in accordance with a supplementary report format as regards the information required under Regulation (EC) No 338/97 and Regulation (EC) No 865/2006.
(9)
Experience gained in implementation of Regulation (EC) No 865/2006 has shown that the provisions therein relating to transaction-specific certificates need to be amended in order to provide greater flexibility in the use of such certificates and to allow them to be used in Member States other than the issuing Member State.
(10)
Regulation (EC) No 865/2006 should therefore be amended accordingly.
(11)
The measures provided for in this Regulation are in accordance with the opinion of the Committee on Trade in Wild Fauna and Flora,
HAS ADOPTED THIS REGULATION:
Article 1
Regulation (EC) No 865/2006 is amended as follows:
1.
Article 1 is amended as follows:
(a)
Point (1) is replaced by the following:
‘(1)
“date of acquisition” means the date on which a specimen was taken from the wild, born in captivity or artificially propagated, or, if such date is unknown or cannot be proved, any subsequent and provable date on which it was first possessed by a person;’
(b)
point (7) is replaced by the following:
‘(7)
“transaction-specific certificates” means certificates issued in accordance with Article 48 that are valid only for one or more specified transactions;’
(c)
the following points (9) and (10) are added:
‘(9)
“sample collection” means a collection of legally acquired dead specimens, parts and derivatives thereof, that are transported across borders for presentation purposes;
(10)
“pre-Convention specimen” means a specimen acquired before the species concerned was first included in the Appendices to the Convention.’;
2.
Article 2, paragraph 1 is replaced by the following:
‘1. The forms on which import permits, export permits, re-export certificates, personal ownership certificates, sample collection certificates and applications for such documents are drawn up shall conform, except as regards spaces reserved for national use, to the model set out in Annex I.’;
3.
Article 4, paragraph 1 is replaced by the following:
‘1. Forms shall be completed in typescript.
However, applications for import and export permits, for re-export certificates, for the certificates provided for in Articles 5(2)(b), 5(3), 5(4), 8(3) and 9(2)(b) of Regulation (EC) No 338/97, for personal ownership certificates, for sample collection certificates and for travelling exhibition certificates as well as import notifications, continuation sheets and labels may be completed in manuscript, provided this is done legibly, in ink and in block capitals.’;
4.
The following Article 5a is inserted:
‘Article 5a
Specific content of permits, certificates and applications for plant specimens
In case of plant specimens that cease to qualify for an exemption from the provisions of the Convention or Regulation (EC) No 338/97 in accordance with the “Notes on the interpretation of Annexes A, B, C and D” in the Annex thereto, under which they were legally exported and imported, the country to be indicated in box 15 of the forms in Annex I and III, box 4 of the forms in Annex II and box 10 of the forms in Annex V to this Regulation may be the country in which the specimens ceased to qualify for the exemption.
In those cases the box reserved for the entry of “special conditions” in the permit or certificate shall include the statement “Legally imported under exemption from the provisions of CITES” and shall specify to which exemption this refers.’;
5.
in Article 7, the following paragraph 4 is added:
‘4. Permits and certificates issued by third countries with source code “O” shall be accepted only if they cover specimens that conform to the definition of pre-Convention specimen set out in Article 1(10) and include either the date of acquisition of the specimens or a statement that the specimens were acquired before a specific date.’;
6.
Article 9 is replaced by the following:
‘Article 9
Shipments of specimens
Without prejudice to Articles 31, 38 and 44b, a separate import permit, import notification, export permit or re-export certificate shall be issued for each shipment of specimens shipped together as part of one load.’;
7.
Article 10 is amended as follows:
(a)
the title is replaced by the following:
‘Article 10
Validity of import and export permits, re-export certificates, travelling exhibition certificates, personal ownership certificates and sample collection certificates’;
(b)
in paragraph 1, the following subparagraphs are added:
‘As regards caviar of sturgeon species (Acipenseriformes spp.) from shared stocks subject to export quotas, which is covered by an export permit, import permits referred to in the first subparagraph shall not be valid beyond the last day of the quota year in which the caviar was harvested and processed or the last day of the 12-month period referred to in the first subparagraph, whichever is the earlier.
As regards caviar of sturgeon species (Acipenseriformes spp.) covered by a re-export certificate, import permits referred to in the first subparagraph shall not be valid beyond the last day of the period of 18 months after the date of issuance of the relevant original export permit or the last day of the 12-month period referred to in the first subparagraph, whichever is the earlier.’;
(c)
in paragraph 2, the following subparagraphs are added:
‘As regards caviar of sturgeon species (Acipenseriformes spp.) from shared stocks subject to export quotas, export permits referred to in the first subparagraph shall not be valid beyond the last day of the quota year in which the caviar was harvested and processed or the last day of the six-month period referred to in the first subparagraph, whichever is the earlier.
As regards caviar of sturgeon species (Acipenseriformes spp.), re-export certificates referred to in the first subparagraph shall not be valid beyond the last day of the period of 18 months after the date of issuance of the relevant original export permit or the last day of the six-month period referred to in the first subparagraph, whichever is the earlier.’;
(d)
the following paragraph 2a is inserted:
‘2a. For the purpose of paragraph 1, second subparagraph and paragraph 2 second subparagraph, the quota year shall be that agreed by the Conference of the Parties to the Convention.’;
(e)
the following paragraph 3a is inserted:
‘3a. The period of validity of sample collection certificates issued in accordance with Article 44a shall not exceed six months. The date of expiry of a sample collection certificate shall not be later than that of the ATA carnet accompanying it.’;
(f)
paragraph 4 is replaced by the following:
‘4. After their expiry, the permits and certificates referred to in paragraphs 1, 2, 3 and 3a shall be considered as void.’;
(g)
paragraph 6 is replaced by the following:
‘6. The holder shall, without undue delay, return to the issuing management authority the original and all copies of any import permit, export permit re-export certificate, travelling exhibition certificate, personal ownership certificate or sample collection certificate, which has expired or which is unused or no longer valid.’;
8.
Article 11 is amended as follows:
(a)
in paragraph 2, the following point (e) is added:
‘(e)
where any special conditions specified in box 20 are no longer fulfilled.’;
(b)
in paragraph 3, the following subparagraph is added:
‘Where a transaction specific certificate is issued for the purpose of allowing several transactions, it shall be valid only within the territory of the issuing Member State. Where transaction specific certificates are to be used in a Member State other than the issuing Member State, they shall be issued for one transaction only and their validity shall be limited to that transaction. It shall be indicated in box 20 whether the certificate is for one or more transactions and the Member State(s) in whose territory it is valid.’;
(c)
The second subparagraph of paragraph 4 shall be replaced by the following new paragraph 5:
‘5. Documents that cease to be valid in accordance with this Article shall, without undue delay, be returned to the issuing management authority which, where appropriate, may issue a certificate reflecting the required changes in accordance with Article 51.’;
9.
Article 15 is amended as follows:
(a)
in paragraph 2, the following subparagraph is added:
‘As regards specimens imported or (re-)exported as personal and household effects, to which the provisions of Chapter XIV apply, and as regards personally owned live animals, which are legally acquired and held for personal non-commercial purposes, the derogation provided for in paragraph 1 shall also apply where the competent management authority of the Member State, in consultation with the relevant enforcement authority, is satisfied that there is evidence that a genuine error has been made and that there was no attempt to deceive and the import or (re-)export of the specimens concerned is in compliance with Regulation (EC) No 338/97, the Convention and the relevant legislation of a third country.’;
(b)
the following paragraph 3a is inserted:
‘3a. For specimens for which an import permit is issued pursuant to the second subparagraph of paragraph 2, commercial activities, as laid down in Article 8(1) of Regulation (EC) No 338/97, shall be prohibited for 6 months from the date of issuance of the permit and no exemptions for specimens of Annex A species, as provided for in Article 8(3) of that Regulation, shall be granted during that period.
In the case of import permits issued pursuant to paragraph 2 second subparagraph for specimens of species listed in Annex B to Regulation (EC) No. 338/97 and for specimens of species listed in Annex A and referred to in Article 4(5)(b) thereof, the stipulation “by way of derogation to Articles 8(3) or (5) of Regulation (EC) No 338/97, commercial activities, as laid down in Article 8(1) of that Regulation, shall be prohibited for at least 6 months from the date of issuance of this permit” shall be included in box 23.’;
10.
the following Article 20a is inserted:
‘Article 20a
Rejection of applications for import permits
Member States shall reject applications for import permits for caviar and meat of sturgeon species (Acipenseriformes spp.) from shared stocks unless export quotas have been set for the species in accordance with the procedure approved by the Conference of the Parties to the Convention.’;
11.
the following Article 26a is inserted:
‘Article 26a
Rejection of applications for export permits
Member States shall reject applications for export permits for caviar and meat of sturgeon species (Acipenseriformes spp.) from shared stocks unless export quotas have been set for the species in accordance with the procedure approved by the Conference of the Parties to the Convention.’;
12.
Article 31, point 3, is replaced by the following:
‘(3)
as a certificate in accordance with Article 8(3) of Regulation (EC) No 338/97 for the sole purpose of allowing the specimens to be displayed to the public for commercial purposes.’;
13.
in Article 36, the second paragraph is replaced by the following:
‘The replacement shall bear the same number, if possible, and the same date of validity as the original document, and shall include, in box 20, one of the following statements:
“This certificate is a true copy of the original”, or “This certificate cancels and replaces the original bearing the number xxxx issued on xx.xx.xxxx.”’;
14.
in Article 44, the second paragraph is replaced by the following:
‘The replacement shall bear the same number, if possible, and the same date of validity as the original document, and shall include, in box 23, one of the following statements:
“This certificate is a true copy of the original.”, or “This certificate cancels and replaces the original bearing the number xxxx issued on xx.xx.xxxx.”’;
15.
The following Chapter VIIIa is inserted after Article 44:
‘CHAPTER VIIIa
SAMPLE COLLECTION CERTIFICATES
Article 44a
Issue
Member States may issue sample collection certificates in respect of sample collections, provided the collection is covered by a valid ATA carnet and includes specimens, parts or derivatives of species listed in Annexes A, B or C of Regulation (EC) No 338/97.
For the purposes of the first paragraph, specimens, parts or derivatives of species listed in Annex A must comply with Chapter XIII of this Regulation.
Article 44b
Use
Provided that a sample collection covered by a sample collection certificate is accompanied by a valid ATA carnet, a certificate, issued in accordance with Article 44a, may be used as follows:
(1)
as an import permit in accordance with Article 4 of Regulation (EC) No 338/97;
(2)
as an export permit or re-export certificate in accordance with Article 5 of Regulation (EC) No 338/97, where the country of destination recognises and allows the use of ATA carnets;
(3)
as a certificate in accordance with Article 8(3) of Regulation (EC) No 338/97 for the sole purpose of allowing the specimens to be displayed to the public for commercial purposes.
Article 44c
Issuing authority
1. Where the sample collection originates within the Community the issuing authority for a sample collection certificate shall be the management authority of the Member State in which the sample collection originates.
2. Where the sample collection originates in a third country, the issuing authority for a sample collection certificate shall be the management authority of the Member State of first destination and the issuance of that certificate shall be based on the provision of an equivalent document, issued by that third country.
Article 44d
Requirements
1. A sample collection covered by a sample collection certificate must be re-imported into the Community before the date of expiry of the certificate.
2. The specimens covered by a sample collection certificate may not be sold or otherwise transferred whilst outside the territory of the State that issued the certificate.
3. A sample collection certificate shall not be transferable. If the specimens covered by a sample collection certificate are stolen, destroyed, or lost, the issuing management authority and the management authority of the country in which this occurred shall be immediately informed.
4. A sample collection certificate shall indicate that the document is for “other: Sample Collection” and shall include the number of the accompanying ATA carnet in box 23.
The following text shall be included in box 23 or in an appropriate annex to the certificate:
“For sample collection accompanied by ATA carnet No: xxx
This certificate covers a sample collection and is not valid unless accompanied by a valid ATA carnet. This certificate is not transferable. The specimens covered by this certificate may not be sold or otherwise transferred whilst outside the territory of the State that issued this document. This certificate may be used for (re-)export from [indicate the country of (re-)export] via [indicate the countries to be visited] for presentation purposes and import back to [indicate the country of (re-)export].”
5. In the case of sample collection certificates issued in accordance with Article 44c(2), paragraphs 1 and 4 of this Article shall not apply. In such cases, the certificate shall include the following text in box 23:
“This certificate is not valid unless accompanied by an original CITES document issued by a third country in accordance with the provisions established by the Conference of the Parties to the Convention.”
Article 44e
Applications
1. The applicant for a sample collection certificate shall, where appropriate, complete boxes 1, 3, 4 and 7 to 23 of the application form and boxes 1, 3, 4 and 7 to 22 of the original and all copies. The entries in box 1 and 3 must be identical. The list of countries to be visited must be indicated in box 23.
Member States may, however, provide that only an application form is to be completed.
2. The duly completed form shall be submitted to a management authority of the Member State in which the specimens are located, or in the case referred to in Article 44c(2), to the management authority of the Member State of first destination, together with the necessary information and the documentary evidence that that authority deems necessary so as to allow it to determine whether a certificate should be issued.
The omission of information from the application must be justified.
3. Where an application is made for a certificate relating to specimens for which such an application has previously been rejected, the applicant shall inform the management authority of that fact.
Article 44f
Documents to be surrendered by the holder to the customs office
1. In the case of a sample collection certificate issued in accordance with Article 44c(1), the holder or his authorised representative shall, for verification purposes, surrender the original (form 1) and a copy of that certificate, and where appropriate the copy for the holder (form 2) and the copy for return to the issuing management authority (form 3), as well as the original of the valid ATA carnet to a customs office designated in accordance with Article 12(1) of Regulation (EC) No 338/97.
The customs office shall, after processing the ATA carnet in accordance with the customs rules contained in Regulation (EC) No 2454/93, and, if necessary, entering the number of the accompanying ATA carnet into the original and copy of the sample collection certificate, return the original documents to the holder or his authorised representative, endorse the copy of the sample collection certificate and forward that endorsed copy to the relevant management authority in accordance with Article 45.
However, at the time of the first export from the Community, the customs office shall, after completing box 27, return the original sample collection certificate (form 1) and the copy for the holder (form 2) to the holder or his authorised representative, and forward the copy for return to the issuing management authority (form 3) in accordance with Article 45.
2. In the case of a sample collection certificate issued in accordance with Article 44c(2), paragraph (1) of this Article shall apply, except that the holder or his authorised representative shall also submit, for verification purposes, the original certificate issued by the third country.
Article 44g
Replacement
A sample collection certificate that has been lost, stolen, or destroyed may be replaced only by the authority which issued it.
The replacement shall bear the same number, if possible, and the same date of validity as the original document, and shall include, in box 23, one of the following statements:
“This certificate is a true copy of the original”, or “This certificate cancels and replaces the original bearing the number xxxx issued on xx/xx/xxxx”.’;
16.
in Article 57(5) is replaced by the following:
‘5. By way of derogation from paragraphs 3 and 4, the introduction or re-introduction into the Community of the following items listed in Annex B to Regulation (EC) No 338/97 shall not require the presentation of a (re-)export document or an import permit:
(a)
caviar of sturgeon species (Acipenseriformes spp.), up to a maximum of 125 grams per person, in containers that are individually marked in accordance with Article 66(6);
(b)
rainsticks of Cactaceae spp., up to three per person;
(c)
dead worked specimens of Crocodylia spp., excluding meat and hunting trophies, up to four per person;
(d)
shells of Strombus gigas, up to three per person;
(e)
Hippocampus spp. up to four dead specimens per person;
(f)
shells of Tridacnidae spp. up to three specimens per person not exceeding three kg in total, where a specimen may be one intact shell or two matching halves.’;
17.
in Article 58, paragraph 4 is replaced by the following:
‘4. By way of derogation from paragraphs 2 and 3, the export or re-export of the items listed in points (a) to (f) of Article 57(5) shall not require the presentation of a (re-)export document.’;
18.
in Article 66, paragraphs 6 and 7 are replaced by the following:
‘6. The specimens referred to in Articles 64 and 65 shall be marked in accordance with the method approved or recommended by the Conference of the Parties to the Convention for the specimens concerned and, in particular, the containers of caviar referred to in Articles 57(5)(a), 64(1)(g), 64(2) and 65(3) shall be individually marked by means of non-reusable labels affixed to each primary container. Where the non-reusable label does not seal the primary container, the caviar shall be packaged in such a manner as to permit visual evidence of any opening of the container.
7. Only those processing plants and (re-)packaging plants that are licensed by the management authority of a Member State shall be entitled to process and package or re-package caviar for export, re-export or intra-Community trade.
Licensed processing and (re-)packaging plants shall be required to maintain adequate records of the quantities of caviar imported, exported, re-exported, produced in situ or stored, as appropriate. These records must be available for inspection by the management authority in the relevant Member State.
A unique registration code shall be attributed to each such processing or (re-)packaging plant by that management authority.
The list of facilities licensed in accordance with this paragraph, as well as any changes thereto, shall be notified to the Secretariat of the Convention and to the Commission.
For the purpose of this paragraph processing plants shall include caviar producing aquaculture operations.’;
19.
Article 69 is amended as follows:
(a)
in paragraph 5, the following point (f) is added:
‘(f)
cases where export permits and re-export certificates were issued retrospectively in accordance with Article 15 of the Regulation.’;
(b)
the following paragraph 6 is added:
‘6. The information referred to in paragraph 5 shall be submitted in a computerised form and in accordance with the “Biennial Report Format” issued by the Secretariat of the Convention and as amended by the Commission, before 15 June each second year and shall correspond to the two-year period ending on 31st December of the previous year.’;
20.
in Article 71, the title is replaced by the following:
‘Article 71
Rejection of applications for import permits following the establishment of restrictions’;
21.
Annex VIII is replaced by the text in Annex I to this Regulation;
22.
Annex X is replaced by the text in Annex II to this Regulation.
Article 2
This Regulation shall enter into force on the 20th day following its publication in the Official Journal of the European Union.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 4 February 2008.
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COMMISSION DECISION of 18 December 1991 authorizing certain Member States to apply intra-Communit surveillance to imports originating in third countries which have been put into free circulation in the Community and which may be the subject of protective measures pursuant to Article 115 of the EEC Treaty (Only the Spanish, English, French, Italian and Portuguese texts are authentic) (92/15/EEC)
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Economic Community, and in particular the first paragraph of Article 115 thereof,
Having regard to Commission Decision 87/433/EEC (1) of 22 July 1987, on surveillance and protective measures which Member States may be authorized to take pursuant to Article 115 of the EEC Treaty, and in particular Articles 1 and 2 thereof,
Whereas Decision 87/433/EEC requires Member States to have prior authorization from the Commission before introducing intra-Community surveillance of the imports concerned;
Whereas the Commission, by Decision 91/18/EEC (2) and other relevant decisions, authorized the Member States to introduce such surveillance;
Whereas almost all those decisions are due to expire on 31 December 1991;
Whereas certain Member States have submitted applications to the Commission for authorization to extend the application of some of these surveillance measures and to introduce new surveillance measures not covered by the abovementioned decisions;
Whereas the Commission has closely studied, on a case-by-case basis, these applications in accordance with the criteria laid down by Decision 87/433/EEC taking into account the plan of action established by the Community for the completion of the internal market as from 1 January 1993;
Whereas these criteria must be applied strictly due to the imminence of this date and to the exception nature of intra-Community surveillance measures with regard to the principle of the free movement of goods;
Whereas the authorization to introduce intra-Community surveillance measures should be restricted to a limited number of cases where there is a real risk of extensive deflection of trade which could lead to serious difficulties in the sectors concerned;
Whereas, under these circumstances, the Member States should be authorized to make subject to intra-Community surveillance imports of the products listed in the Annex until 30 June 1992,
HAS ADOPTED THIS DECISION:
Article 1
The Member States named in the Annex are authorized, in so far as each is concerned, to apply, until 30 June 1992 and in accordance with Decision 87/433/EEC, intra-Community surveillance of the products listed in the said Annex.
Article 2
This Decision is addressed to the Kingdom of Spain, the French Republic, Ireland, the Italian Republic, the Portugese Republic and the United Kingdom. Done at Brussels, 18 December 1991.
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Commission Regulation (EC) No 1906/2002
of 24 October 2002
concerning tenders notified in response to the invitation to tender for the export of barley issued in Regulation (EC) No 901/2002
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Council Regulation (EEC) No 1766/92 of 30 June 1992 on the common organisation of the market in cereals(1), as last amended by Regulation (EC) No 1666/2000(2),
Having regard to Commission Regulation (EC) No 1501/95 of 29 June 1995 laying down certain detailed rules for the application of Council Regulation (EEC) No 1766/92 on the granting of export refunds on cereals and the measures to be taken in the event of disturbance on the market for cereals(3), as last amended by Regulation (EC) No 1163/2002(4), as amended by Regulation (EC) No 1324/2002(5), and in particular Article 4 thereof,
Whereas:
(1) An invitation to tender for the refund for the export of barley to all third countries except the United States of America, Canada, Estonia and Latvia was opened pursuant to Commission Regulation (EC) No 901/2002(6), as amended by Regulation (EC) No 1230/2002(7).
(2) Article 7 of Regulation (EC) No 1501/95, allows the Commission to decide, in accordance with the procedure laid down in Article 23 of Regulation (EEC) No 1766/92 and on the basis of the tenders notified, to make no award.
(3) On the basis of the criteria laid down in Article 1 of Regulation (EC) No 1501/95 a maximum refund should not be fixed.
(4) The measures provided for in this Regulation are in accordance with the opinion of the Management Committee for Cereals,
HAS ADOPTED THIS REGULATION:
Article 1
No action shall be taken on the tenders notified from 18 to 24 October 2002 in response to the invitation to tender for the refund for the export of barley issued in Regulation (EC) No 901/2002.
Article 2
This Regulation shall enter into force on 25 October 2002.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 24 October 2002.
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Commission Decision
of 14 May 2001
conferring management of aid on implementing agencies for pre-accession measures in agriculture and rural development in the Republic of Bulgaria in the pre-accession period
(notified under document number C(2001) 1428)
(2001/380/EC)
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Council Regulation (EC) No 1266/1999 of 21 June 1999 on coordinating aid to the applicant countries in the framework of the pre-accession strategy and amending Regulation (EEC) No 3906/89(1), and in particular Article 12(2) thereof,
Having regard to Commission Regulation (EC) No 2222/2000 of 7 June 2000 laying down financial rules for the application of Council Regulation (EC) No 1268/1999 on Community support for pre-accession measures for agriculture and rural development in the applicant countries of central and eastern Europe in the pre-accession period(2), and in particular Article 3(2) thereof,
Whereas:
(1) In accordance with Article 4(5) of Council Regulation (EC) No 1268/1999 of 21 June 1999 on Community support for pre-accession measures for agriculture and rural development in the applicant countries of central and eastern Europe in the pre-accession period(3), a Programme for Agriculture and Rural Development was approved by Commission Decision C(2000)3058 final on 20 October 2000 for the Republic of Bulgaria.
(2) The Government of the Republic of Bulgaria and the Commission, acting on behalf of the Euroepan Community, have signed on 18 December 2000 the Multiannual Financing Agreement laying down the technical, legal and administrative framework for the execution of the Sapard Programme.
(3) Regulation (EC) No 1266/1999 provides that the ex-ante approval requirement referred to in Article 12(1) of Regulation (EC) No 1266/1999 may be waived on the basis of a case-by-case analysis of national and sectorial programme/project management capacity, financial control procedures and structures regarding public finance. Regulation (EC) No 2222/2000 provides for detailed rules for the carrying out of said analysis.
(4) The Competent authority of the Republic of Bulgaria has appointed, on the one hand, the State Agriculture Fund for the implementation of measures "Investments in agricultural holdings", "Improving the processing and marketing of agricultural and fishery products" and "Development and diversification of economic activities, provision for multiple activities and alternative income" as defined in the Programme for Agriculture and Rural Development that was approved by Decision C(2000)3058 final for the Republic of Bulgaria and, on the other, the Ministry of Finance, Directorate National Fund, for the financial functions it is due to perform in the framework of the implementation of the Sapard programme.
(5) Pursuant to Regulation (EC) No 1266/1999 and Regulation (EC) No 2222/2000, the Commission has analysed the national and sectorial programme/project management capacity, financial control procedures and structures regarding public finance and has established that, for the implementation of the aforementioned measures, the Republic of Bulgaria complies with the provisions of Articles 4 to 6 and of the Annex to Regulation (EC) No 2222/2000, with the minimum conditions set out in the Annex to Regulation (EC) No 1266/1999. In particular, the State Agriculture Fund has implemented the following key accreditation criteria satisfactorily: written procedures, segregation of duties, pre-project and pre-payment checks, commitment and payment procedures, accounting procedures, computer systems security and internal audit; the Ministry of Finance, Directorate National Fund has implemented the following key accreditation criteria satisfactorily: audit trail, treasury management, receipt of funds, disbursement to the State Agriculture Fund, computer security and internal audit.
(6) It is therefore appropriate to waive the ex-ante approval requirement referred to in Article 12(1) of Regulation (EC) No 1266/1999 and to confer on the State Agriculture Fund and on the Ministry of Finance, Directorate National Fund in the Republic of Bulgaria the management of aid on a decentralised basis.
(7) However, since the verifications carried out by the Commission are based on an operational but not operating system and that it is therefore appropiate to confer the management of the Sapard Programme on the State Agriculture Fund and on the Ministry of Finance, Directorate National Fund on a provisional basis so that full conferral of management of the Sapard Programme is only envisaged after further verifications in order to ensure that the system operates satisfactorily have been carried out and after any recommendations the Commission may issue, with regard the conferral of management of aid on the State Agriculture Fund and on the Ministry of Finance, Directorate National Fund, have been implemented,
HAS DECIDED AS FOLLOWS:
Article 1
The requirement of ex-ante approval by the Commission of project selection and contracting by the Republic of Bulgaria is hereby waived.
Article 2
Management of the Sapard Programme is conferred on a provisional basis to the State Agriculture Fund, 55 Hristo Botev Boulevard, 1040 Sofia, Bulgaria for the implementation of the measures "Investments in agricultural holding", "Improving the processing and marketing of agricultural and fishery products" and "Development of and diversification of economic activities, provision for multiple activities and alternative income", as defined in the Programme for Agriculture and Rural Development that was approved by Decision C(2000)3058 final and to the Ministry of Finance, Directorate National Fund, 102 Radkovski Street, 1040 Sofia, Bulgaria, for the financial functions it is due to perform in the framework of the implementation of the Sapard programme for the Republic of Bulgaria. Upon a request of the Competent authority, the Commission may decide to extend the conferral of management to other measures identified in the Programme for Agriculture and Rural Development, once it establishes that there is compliance with the relevant conditions.
Done at Brussels, 14 May 2001.
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Commission Regulation (EC) No 2294/2000
of 16 October 2000
derogating from Article 31(10) of Council Regulation (EC) No 1255/1999 on the common organisation of the market in milk and milk products as regards proof of arrival at destination in the case of differentiated refunds and laying down detailed rules for the application of the lowest export refund rate for certain milk products
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Council Regulation (EC) No 1255/1999 of 17 May 1999 on the common organisation of the market in milk and milk products(1), as last amended by Regulation (EC) No 1670/2000(2), and in particular Article 31(10) and (14) thereof,
Whereas:
(1) The third indent of Article 31(10) of Regulation (EC) No 1255/1999 stipulates that in the case of differentiated refunds the refund is to be paid on presentation of proof that the products have reached the destination indicated on the licence or another destination for which a refund was fixed. Exceptions to that rule are possible provided that conditions are laid down offering equivalent guarantees.
(2) In the event that export refunds are differentiated according to destination, Article 18(1) and (2) of Commission Regulation (EC) No 800/1999 of 15 April 1999 laying down common detailed rules for the application of the system of export refunds on agricultural products(3), as amended by Regulation (EC) No 1557/2000(4), stipulates that part of the refund, calculated using the lowest rate for the refund, is to be paid on application by the exporter once proof is furnished that the product has left the customs territory of the Community.
(3) Under special arrangements with certain third countries, the refund rate applicable to the export of certain milk products to those countries may be lower, in some cases by a large amount, than the refund normally applied. It is also possible that a refund may not be fixed so the lowest rate of the refund is also the result of the lack of fixing of a refund.
(4) Article 20a(8) of Commission Regulation (EC) No 174/1999 of 26 January 1999 laying down special detailed rules for the application of Council Regulation (EEC) No 804/68 as regards export licences and export refunds in the case of milk and milk products(5), as last amended by Regulation (EC) No 1961/2000(6), provides for a differentiation of the refund for certain milk powders falling within Combined Nomenclature code 0402 intended for export to the Dominican Republic.
(5) The special arrangements for exports to the Dominican Republic of certain products which may benefit from special treatment on import into that country guarantee that products to which a refund has been applied intended for other destinations or for that destination but outside the special arrangements, may not be imported into the Dominican Republic under the special arrangements laid down in the Memorandum of Understanding between the European Community and the Dominican Republic.
(6) Those special arrangements must therefore be taken into account when applying the above provisions of Regulations (EC) No 1255/1999 and (EC) No 800/1999 so that exporters are not burdened with unnecessary costs in their trade with third countries. To that end, when the lowest refund rate is determined, no account is to be taken of the rates fixed under the conditions and for the particular destination in question.
(7) The tariff quota for the destination Dominican Republic applies from 1 July 2000 so operators should be allowed to benefit from that derogation from the same date.
(8) The measures provided for in this Regulation are in accordance with the opinion of the Management Committee for Milk and Milk Products,
HAS ADOPTED THIS REGULATION:
Article 1
By derogation from the third indent of Article 31(10) of Regulation (EC) No 1255/1999 and without prejudice to Article 20a(14) of Regulation (EC) No 174/1999, proof of arrival at destination shall not be required for the products referred to in Article 20a(3) and (11) of Regulation (EC) No 174/1999.
Article 2
The special refund referred to in Article 20a(8) of Regulation (EC) No 174/1999, the rate of which is lower than the lowest rate fixed for other destinations, shall not be taken into account in determining the lowest refund rate within the meaning of Article 18(2) of Regulation (EC) No 800/1999.
Article 3
This Regulation shall enter into force on the third day following its publication in the Official Journal of the European Communities.
It shall apply to export licences requested from 1 July 2000.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 16 October 2000.
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COMMISSION REGULATION (EC) No 177/94 of 28 January 1994 amending Regulation (EEC) No 2568/91 on the characteristics of olive oil and olive-residue oil and on the relevant methods of analysis
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Council Regulation 136/66/EEC of 22 September 1966 on the establishment of a common organization of the market in oils and fats (1), as last amended by Regulation (EC) No 3179/93 (2), and in particular Article 35a thereof,
Whereas Commission Regulation (EEC) No 2568/91 (3), as last amended by Regulation (EEC) No 620/93 (4), defines the characteristics of the various types of olive oil and oil-residue oil and the relevant methods of analysis;
Whereas Annex XII to Regulation (EEC) No 2568/91 provides for a tolerance for the grading of certain types of virgin oil to be applied for a limited period; whereas in the light of experience in applying the 0,5 tolerance in respect of operations relating to intervention and in the interests of sound management of the intervention scheme, the said tolerance should be abolished;
Whereas Annex XIV should be amended in order to take better account of the natural characteristics of certain olive oils; whereas it is necessary also to correct certain errors in the text of Regulation (EEC) No 2568/91;
Whereas the measures provided for in this Regulation are in accordance with the opinion of the Management Committee for Oils and Fats,
HAS ADOPTED THIS REGULATION:
Article 1
Regulation (EEC) No 2568/91 is hereby amended as follows:
1. In Annex IV, point 5.2.5.2, '100' is replaced by '1 000'.
2. In point 10.2 of Annex XII, the second subparagraph of the paragraph 'Expression of results' is replaced by the following:
'However, in the case of oils which are the subject of intervention operations, no tolerance shall be applied.'
3. In Annex XIV, Additional Note 2 is amended as follows:
- in point B. I. (a) and II. (c) and in point C. (b), the term 'aliphatic alcohols' is replaced by 'wax';
- in point B. I. (a), '400' is replaced by '350';
- in point B. II. (c), '300' is replaced by '250';
- in point C. (c) is replaced by the following:
'(c) a K270 extinction coefficient (100) not higher than 1,20';
- in point C. (d) is replaced by the following:
'(d) an extinction coefficient variation (DK), in the 270 nm region, not higher than 0,16'.
Article 2
This Regulation shall enter into force on the seventh day following its publication in the Official Journal of the European Communities.
However, Article 1 (3) thereof shall apply with effect from the twenty-first day following its publication in the Official Journal of the European Communities.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 28 January 1994.
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COMMISSION DECISION
of 12 October 2007
amending Decision 2007/554/EC concerning certain protection measures against foot-and-mouth disease in the United Kingdom
(notified under document number C(2007) 4660)
(Text with EEA relevance)
(2007/663/EC)
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Council Directive 89/662/EEC of 11 December 1989 concerning veterinary checks in intra-Community trade with a view to the completion of the internal market (1), and in particular Article 9(4) thereof,
Having regard to Council Directive 90/425/EEC of 26 June 1990 concerning veterinary and zootechnical checks applicable in intra-Community trade in certain live animals and products with a view to the completion of the internal market (2), and in particular Article 10(4) thereof,
Whereas:
(1)
Following recent outbreaks of foot-and-mouth disease in Great Britain, Commission Decision 2007/554/EC of 9 August 2007 concerning certain protection measures against foot-and-mouth disease in the United Kingdom (3) was adopted to reinforce the control measures against foot-and-mouth disease taken by that Member State in the framework of Council Directive 2003/85/EC of 29 September 2003 on Community measures for the control of foot-and-mouth disease (4).
(2)
Decision 2007/554/EC lays down rules applicable to the dispatch from high and low risk areas in Great Britain of products considered safe that either were produced before the restrictions were put in place in the United Kingdom, from raw material sourced from outside those restricted areas, or that have undergone a treatment proven effective in inactivating possible foot-and-mouth disease virus.
(3)
In the interests of clarity of Community legislation, it is appropriate to rephrase the first and second subparagraphs of Article 2(6) of Decision 2007/554/EC.
(4)
It is appropriate to permit, under specific certification conditions, the re-dispatch of frozen semen and embryos of the ovine and caprine species imported into the United Kingdom in accordance with Community legislation and stored separately from semen, ova and embryos not eligible for dispatch from the high and low risk areas listed in Annexes I and II to Decision 2007/554/EC. Additional certification conditions should be introduced and Article 6(2)(b) of that Decision should therefore be amended accordingly.
(5)
It is also appropriate to amend the certification requirements laid down in Decision 2007/554/EC as regards animal products, including petfood, that have undergone a heat treatment effectively inactivating the possible foot-and-mouth disease virus in the product concerned. Article 8(4) and (6) of that Decision should therefore be amended accordingly.
(6)
In addition, it is necessary to clarify which parts of the territory of the United Kingdom are concerned by the measures required to be taken by the other Member States in relation to animals of a susceptible species dispatched during the period when animals could have been dispatched from those parts of the United Kingdom not included in the surveillance zone established in the county of Surrey, in relation to the two outbreaks confirmed in August 2007. Article 13(2) of Decision 2007/554/EC should therefore be amended to refer specifically to Great Britain.
(7)
Decision 2007/554/EC should therefore be amended accordingly.
(8)
The measures provided for in this Decision are in accordance with the opinion of the Standing Committee on the Food Chain and Animal Health,
HAS ADOPTED THIS DECISION:
Article 1
Decision 2007/554/EC is amended as follows:
1.
In Article 2, paragraph 6 is replaced by the following:
‘6. The prohibition set out in paragraph 2 of this Article shall not apply to fresh meat obtained from animals reared outside the areas listed in Annex I and Annex II and transported, by way of derogation from Article 1(2) and (3), directly and under official control in sealed means of transport to a slaughterhouse situated in the areas listed in Annex I outside the protection zone for immediate slaughter, provided that such fresh meat is only placed on the market in the areas listed in Annex I and Annex II and complies with the following conditions:
(a)
all such fresh meat is marked in accordance with the second subparagraph of Article 4(1) of Directive 2002/99/EC or in accordance with Decision 2001/304/EC;
(b)
the slaughterhouse is operated under strict veterinary control;
(c)
the fresh meat is clearly identified, and transported and stored separately from meat which is eligible for dispatch outside the United Kingdom.
Compliance with the conditions set out in the first subparagraph shall be checked by the competent veterinary authority under the supervision of the central veterinary authorities.
The central veterinary authorities shall communicate to the Commission and to the other Member States a list of the establishments which they have approved for the purposes of application of this paragraph.’
2.
Article 6 is amended as follows:
(a)
In paragraph 2, point (b) is replaced by the following:
‘(b)
frozen bovine semen and embryos, frozen porcine semen, and frozen ovine and caprine semen and embryos imported into the United Kingdom, in accordance with the conditions laid down in Directives 88/407/EEC, 89/556/EEC, 90/429/EEC or 92/65/EEC respectively, and which, since their introduction into the United Kingdom, have been stored and transported separately from semen, ova and embryos not eligible for dispatch in accordance with paragraph 1.’
(b)
The following paragraphs 6 and 7 are added:
‘6. The health certificate provided for in Directive 92/65/EEC and accompanying frozen ovine or caprine semen dispatched from the United Kingdom to other Member States shall bear the following words:
“Frozen ovine/caprine semen conforming to Commission Decision 2007/554/EC of 9 August 2007 concerning certain protection measures against foot-and-mouth disease in the United Kingdom.”
7. The health certificate provided for in Directive 92/65/EEC and accompanying frozen ovine or caprine embryos dispatched from the United Kingdom to other Member States shall bear the following words:
“Frozen ovine/caprine embryos conforming to Commission Decision 2007/554/EC of 9 August 2007 concerning certain protection measures against foot-and-mouth disease in the United Kingdom”.’
3.
Article 8 is amended as follows:
(a)
Paragraph 4 is replaced by the following:
‘4. By way of derogation from paragraph 3, it shall be sufficient, in the case of the products referred to in paragraph 2(a) to (d) and (f) of this Article that compliance with the conditions for the treatment stated in the commercial document required in accordance with the respective Community legislation is endorsed in accordance with Article 9(1).’
(b)
Paragraph 6 is replaced by the following:
‘6. By way of derogation from paragraph 3 it shall be sufficient, in the case of products referred to in paragraph 2(g) which have been produced in an establishment operating HACCP and an auditable standard operating procedure which ensures that pre-processed ingredients comply with the respective animal health conditions laid down in this Decision, that this is stated on the commercial document accompanying the consignment, endorsed in accordance with Article 9(1).’
4.
In Article 13, paragraph 2 is replaced by the following:
‘2. Without prejudice to the provisions of Article 6 of Council Decision 90/424/EEC and the measures already taken by Member States, Member States other than the United Kingdom shall take appropriate precautionary measures in relation to susceptible animals dispatched from Great Britain between 15 July 2007 and 13 September 2007, including isolation and clinical inspection, where necessary combined with laboratory testing to detect or rule out infection with the foot-and-mouth disease virus, and where necessary those of Article 4 of Directive 2003/85/EC.’
Article 2
Member States shall amend the measures which they apply to trade so as to bring them into compliance with this Decision. They shall immediately inform the Commission thereof.
Article 3
This Decision is addressed to the Member States.
Done at Brussels, 12 October 2007.
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COMMISSION REGULATION (EC) No 3083/94 of 16 December 1994 amending the indicative ceilings fixed by Regulation (EEC) No 1112/93 in the framework of the supplementary trade mechanism for trade with Spain and Portugal in the beef and veal sector
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to the Act of Accession of Spain and Portugal, and in particular Article 83 for Spain and Article 251 for Portugal thereof,
Whereas Commission Regulation (EEC) No 1112/93 (1), as last amended by Regulation (EC) No 2506/94 (2) lays down, for 1994, the detailed rules for the application of the supplementary trade mechanism to trade in the beef and veal sector, and in particular the indicative ceilings relating to certain groups of products which can be imported into Spain and Portugal from the Community as constituted on 31 December 1985;
Whereas a significant increase in these ceilings for 1995, with full account taken of trends in the Spanish and Portuguese markets, is necessary to facilitate the integration of these two countries into the Community market;
Whereas the measures provided for in this Regulation are in accordance with the opinion of the Management Committee for Beef and Veal,
HAS ADOPTED THIS REGULATION:
Article 1
The Annexes to Regulation (EEC) No 1112/93 are hereby replaced by the Annex hereto.
Article 2
This Regulation shall enter into force on the third day following its publication in the Official Journal of the European Communities.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 16 December 1994.
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COUNCIL REGULATION (EC) No 315/2007
of 19 March 2007
laying down transitional measures derogating from Regulation (EC) No 2597/97 as regards drinking milk produced in Estonia
THE COUNCIL OF THE EUROPEAN UNION,
Having regard to the Treaty establishing the European Community, and in particular Article 37 thereof,
Having regard to the proposal from the Commission,
Having regard to the Opinion of the European Parliament,
Whereas:
(1)
By way of derogation from Council Regulation (EC) No 2597/97 of 18 December 1997 laying down additional rules on the common organization of the market in milk and milk products for drinking milk (1), Commission Regulation (EC) No 749/2004 of 22 April 2004 laying down transitional measures as regards drinking milk produced in Estonia (2) provides for the possibility for drinking milk produced in Estonia with a fat content of 2,5 % to be delivered and sold in Estonia. That derogation expires on 30 April 2007.
(2)
In view of Estonian consumer habits and of the difficulties of adapting to Community rules and taking into account the fact that similar derogations in several other Member States will expire on 30 April 2009, it is appropriate to extend the derogation allowing the delivery and sale in Estonia of drinking milk produced in Estonia with a fat content of 2,5 %,
HAS ADOPTED THIS REGULATION:
Article 1
By way of derogation from Article 3(1)(b) of Regulation (EC) No 2597/97, drinking milk produced in Estonia with a fat content of 2,5 % may be delivered or sold in Estonia in accordance with Article 2(1) of that Regulation.
Article 2
This Regulation shall enter into force on the third day following that of its publication in the Official Journal of the European Union.
It shall apply until 30 April 2009.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 19 March 2007.
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COMMISSION DECISION of 20 December 1995 on the allocation of quantities of controlled substances allowed for essential uses in the Community in 1996 under Council Regulation (EC) No 3093/94 on substances that deplete the ozone layer (95/555/EC)
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Council Regulation (EC) No 3093/94 of 15 December 1994 (1), and in particular Articles 3, 4 and 7 thereof,
Whereas, because of concerns for the ozone layer, the Community has decided to phase out certain controlled substances earlier than provided for in the Montreal Protocol commencing on 1 January 1995;
Whereas Article 3 (1), (2), (3), (4), (5) and (7) of Regulation (EC) No 3093/94 states that the Commission shall determine every year any essential uses which may be permitted in the Community and any quantities of controlled substances which may be produced, placed on the market or used for these purposes;
Whereas, pursuant to the abovementioned Regulation, those essential uses have to be decided for chlorofluorocarbons (Articles 3 (1) and 4 (1)); other fully halogenated chlorofluorocarbons (Articles 3 (2) and 4 (2)); halons (Articles 3 (3) and 4 (3); carbon tetrachloride (Articles 3 (4) and 4 (4)); 1,1,1-trichloroethane (Articles 3 (5) and 4 (5)); and HBFCs (Articles 3 (7) and 4 (7));
Whereas the criteria used for assessing essential uses are in line with Decision IV/25 of the Parties to the Montreal Protocol and are:
(a) that a use of a controlled substance should qualify as 'essential` only if:
(i) it is a necessary for health or safety, or is critical for the functioning of society (including cultural and intellectual aspects); and (ii) there are no technically and economically feasible alternatives or substitutes that are acceptable environmentally or from the health point of view;
(b) that production and consumption, if any, of a controlled substance for essential uses should be permitted only if:
(i) all economically feasible steps have been taken to minimize the essential use and associated emission of the controlled substance; and (ii) the controlled substance is not available in sufficient quantity and quality from existing stocks of banked or recycled controlled substances, account also being taken of the needs of developing countries for controlled substances;
Whereas Decision VI/9 of the Parties to the Montreal Protocol authorizes the levels of production or consumption necessary to satisfy essential uses of controlled substances for (i) metered dose inhalers (MDIs) for the treatment of asthma and chronic obstructive pulmonary diseases (COPD) and for (ii) laboratory and analytical uses as specified in Annex I to this Decision;
Whereas the same Decision VI/9 also commits Parties to endeavouring to minimize use and emissions by all possible means; whereas in the case of MDIs, these means include educating physicians and patients about other treatment options and making real efforts to eliminate or recapture emissions from filling and testing consistent with national laws and regulations;
Whereas after receiving a certain number of applications from Member States, the Commission published Decision 95/324/EC (1) which recognizes the production of MDIs for the treatment of asthma and other COPDs and laboratory uses as essential uses and specifies quantities for the European Community on behalf of the Member States for 1996, in line with the Montreal Protocol Decisions IV/25 and VI/9 mentioned above;
Whereas the quantity of 1,1,1-trichloroethane authorized in Decision 95/324/EC is not sufficient for the essential laboratory and analytical uses;
Whereas, in order to increase the quantities of 1,1,1-trichloroethane to meet the essential laboratory uses identified in Decision 95/324/EC, the Commission shall identify the distributors who may supply the controlled substances for that purpose;
Whereas the Commission has published a notice (2) to those companies in the European Community which use controlled substances that may be allowed for essential uses in the Community in 1996 pursuant to Regulation (EC) No 3093/94, and has thereby revealed applications for quantities of controlled substances for essential uses for 1996;
Whereas, in the framework of the Montreal Protocol nomination and assessment procedures for essential uses, parties are requested to identify the users who may take advantage of essential uses in 1996;
Whereas the Commission issues licences to the users identified pursuant to Articles 3, 4 and 7 and in accordance with the procedure set out in Article 16 of Regulation (EC) No 3093/94;
Whereas, consequently, within this framework a producer may be authorized by the competent authority of the Member State in which its relevant production is situated to produce the controlled substances for the purpose of meeting the licensed demands presented by the identified users; whereas the competent authority of the Member State concerned shall in turn notify the Commission well in advance of any such authorization;
Whereas Article 16 of Regulation (EC) No 3093/94 sets out the procedure according to which decisions can be taken concerning the implementation of the Regulation;
Whereas the measures provided for in this Decision are in accordance with the opinion of the Committee referred to in Article 16 of Regulation (EC) No 3093/94;
Whereas the list of essential uses and the quantities of the controlled substances are hereby given in Annex II as information for producer and user industries,
HAS ADOPTED THIS DECISION:
Article 1
Companies which may take advantage of essential uses for their own account or which put the controlled substances in free circulation with a view to exemptions being granted for essential laboratory uses are listed in Annex I.
Article 2
Further to Article 1 (1) of Decision 95/324/EC, the quantities of 1,1,1-trichloroethane for essential laboratory uses shall be increased by 300 tonnes.
Article 3
The allocation of quantities for essential uses is specified in Annex II.
Article 4
This Decision is addressed to the companies listed in Annex I.
Article 5
This Decision shall apply from 1 January to 31 December 1996.
Done at Brussels, 20 December 1995.
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Commission Regulation (EC) No 959/2002
of 5 June 2002
fixing, for May 2002, the specific exchange rate for the amount of the reimbursement of storage costs in the sugar sector
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Council Regulation (EC) No 2799/98 of 15 December 1998 establishing agrimonetary arrangements for the euro(1),
Having regard to Commission Regulation (EEC) No 1713/93 of 30 June 1993 establishing special detailed rules for applying the agricultural conversion rate in the sugar sector(2), as last amended by Regulation (EC) No 1509/2001(3), and in particular Article 1(3) thereof,
Whereas:
(1) Article 1 of Commission Regulation (EC) No 1878/2001 of 26 September 2001 laying down transitional measures in connection with the compensation system for storage costs for sugar(4), lays down that Article 8 of Council Regulation (EC) No 2038/1999 of 13 September 1999 on the common organisation of the markets in the sugar sector(5), as amended by Commission Regulation (EC) No 1527/2000(6), will continue to apply to sugars carried forward from the 2000/01 marketing year to the 2001/02 marketing year.
(2) Article 1(2) of Regulation (EEC) No 1713/93 provides that the amount of the reimbursement of storage costs referred to in Article 8 of Regulation (EC) No 2038/1999 is to be converted into national currency using a specific agricultural conversion rate equal to the average, calculated pro rata temporis, of the agricultural conversion rates applicable during the month of storage. That specific rate must be fixed each month for the previous month. However, in the case of the reimbursable amounts applying from 1 January 1999, as a result of the introduction of the agrimonetary arrangements for the euro from that date, the fixing of the conversion rate should be limited to the specific exchange rates prevailing between the euro and the national currencies of the Member States that have not adopted the single currency.
(3) Application of these provisions will lead to the fixing, for May 2002, of the specific exchange rate for the amount of the reimbursement of storage costs in the various national currencies as indicated in the Annex to this Regulation,
HAS ADOPTED THIS REGULATION:
Article 1
The specific exchange rate to be used for converting the amount of the reimbursement of the storage costs referred to in Article 8 of Regulation (EC) No 2038/1999 into national currency for May 2002 shall be as indicated in the Annex hereto.
Article 2
This Regulation shall enter into force on 6 June 2002.
It shall apply with effect from 1 May 2002.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 5 June 2002.
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COMMISSION REGULATION (EEC) No 3774/91 of 18 December 1991 amending for the twelfth time Regulation (EEC) No 3800/81 determining the classification of vine varieties
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Economic Community,
Having regard to Council Regulation (EEC) No 822/87 of 16 March 1987 on the common organization of the market in wine (1), as last amended by Regulation (EEC) No 1734/91 (2), and in particular Article 13 (5) thereof,
Whereas the classification of vine varieties approved for cultivation in the Community is determined by Commission Regulation (EEC) No 3800/81 (3), as last amended by Regulation (EEC) No 1565/91 (4);
Whereas certain wine-grape vine varieties have been examined and found to be suitable for cultivation in accordance with Commission Regulation (EEC) No 2314/72 of 30 October 1972 on certain measures for examining the suitability of certain vine varieties for cultivation (5), as amended by Regulation (EEC) No 3296/80 (6), for certain French administrative units and for one Italian administrative unit; whereas those varieties should be included in the category of vine varieties provisionally authorized for those administrative units, in accordance with Article 11 (1) (b) of Council Regulation (EEC) No 2389/89 of 24 July 1989 on general rules for the classification of vine varieties (7), as amended by Regulation (EEC) No 3577/90 (8);
Whereas experience has shown that wine obtained from one wine-grape vine variety authorized for certain French administrative units may be considered as normally of good quality; whereas that variety should therefore be classified among the varieties recommended for those French administrative units in accordance with Article 11 (2) (a) of Regulation (EEC) No 2389/89;
Whereas experience has shown that wine obtained from certain wine-grape and table-grape vine varieties authorized for certain Greek administrative units may be considered as normally of good quality; whereas those varieties should accordingly be classified among the varieties recommended for those Greek administrative units in accordance with Article 11 (2) (a) of Regulation (EEC) No 2389/89;
Whereas ommissions should be made good by providing for the classification of certain vine varieties used to produce table wine among the varieties authorized for part of one French administrative unit and for certain Greek administrative units in accordance with Article 11 (1) (b) of Regulation (EEC) No 2389/89;
Whereas the classification of wine-grape and table-grape vine varieties should include, among the varieties recommended and authorized for certain German, Greek and Italian administrative units, certain varieties which have been listed for at least five years in the classification for an administrative unit immediately bordering thereon and which therefore satisfy the condition laid down in the first indent of Article 11 (1) (a) of Regulation (EEC) No 2389/89;
Whereas the new German Laender may be considered administrative units within the meaning of Article 3 of Regulation (EEC) No 2389/89, as amended by Section IV of Annex XII to Regulation (EEC) No 3577/90;
Whereas certain wine-grape vine varieties have been examined and recognized as suitable for cultivation in certain German administrative units; whereas those wine-grape vine varieties should be classified for those administrative units in the category of provisionally authorized vine varieties in accordance with Article 11 (1) (b) of Regulation (EEC) No 2389/89;
Whereas the measures provided for in this Regulation are in accordance with the opinion of the Management Committee for Wine,
HAS ADOPTED THIS REGULATION:
Article 1
The Annex to Regulation (EEC) No 3800/81 is hereby amended in accordance with the Annex hereto.
Article 2
This Regulation shall enter into force on the seventh day following its publication in the Official Journal of the European Communities.
It shall apply with effect from 1 September 1991. This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 18 December 1991.
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*****
COUNCIL DECISION
of 21 December 1987
adopting a revision of the multiannual research and training programme for the European Atomic Energy Community in the field of radiation protection (1985 to 1989)
(88/29/Euratom)
THE COUNCIL OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Atomic Energy Community, and in particular Article 7 thereof,
Having regard to the proposal from the Commission, submitted after consulting the Scientific and Technical Committee (1),
Having regard the opinion of the European Parliament (2),
Having regard to the opinion of the Economic and Social Committee (3),
Considering that the Council, in its Decision 87/516/Euratom, EEC (4), concerning the framework programme for Community activities in the field of research and technological development (1987 to 1991), recognized the importance of an activity dealing with radiation protection;
Whereas by Decision 85/200/Euratom (5), a multiannual research and training programme for the European Atomic Energy Community in the field of radiation protection (1985 to 1989) was adopted; whereas Article 3 of that Decision provides for a review of the programme;
Whereas, in view of the severe radiological consequences of the Chernobyl reactor accident, it is in the interests of the Community to carry out research on the effects of this accident, to carry out an evaluation of its hazards and to develop methods to control and reduce adverse consequences of radiation to the general public, workers and the environment;
Whereas the research covered by this Decision is an appropriate way of pursuing such action,
HAS DECIDED AS FOLLOWS:
Article 1
The research and training programme for the European Atomic Energy Community in the field of radiation protection as adopted by Decision 85/200/Euratom is hereby revised.
Article 2
Supplementary research will be carried out as defined in the Annex hereto.
Article 3
The funds estimated as necessary for the execution of the programme will be increased from 58 million to 68 million ECU. This increase of 10 million ECU will be used to conclude research contracts and for operational expenditure.
Done at Brussels, 21 December 1987.
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COUNCIL DIRECTIVE of 17 November 1981 amending Directives 69/169/EEC and 78/1035/EEC as regards tax reliefs applicable in international travel and to imports of small consignments of goods of a non-commercial character from third countries (81/933/EEC)
THE COUNCIL OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Economic Community, and in particular Article 99 thereof,
Having regard to the proposal from the Commission (1),
Having regard to the opinion of the European Parliament (2),
Having regard to the opinion of the Economic and Social Committee (3),
Whereas the fixing of the equivalent in national currency of the tax reliefs provided for in Council Directive 69/169/EEC of 28 May 1969 on the harmonization of provisions laid down by law, regulation or administrative action relating to exemption from turnover tax and excise duty on imports in international travel (4), as last amended by Directive 78/1033/EEC (5) and in Council Directive 78/1035/EEC of 19 December 1978 on the exemption from taxes of imports of small consignments of goods of a non-commercial character from third countries (6) would result in a reduction in terms of national currency in the tax reliefs applicable in one Member State ; whereas, in the present circumstances, such a reduction should be avoided,
HAS ADOPTED THIS DIRECTIVE:
Article 1
Article 1 of Directive 69/169/EEC shall be amended as follows: (a) in paragraph 1, the expression "40 European units of account" shall be replaced by "45 ECU",
(b) in paragraph 2, the expression "20 European units of account" shall be replaced by "23 ECU".
Article 2
In the third indent of Article 1 (2) of Directive 78/1035/EEC the expression "30 EUA" shall be replaced by "35 ECU".
Article 3
1. Member States shall take the measures necessary to comply with this Directive as from 1 January 1982.
2. Member States shall inform the Commission of the provisions they adopt for the application of this Directive.
Article 4
This Directive is addressed to the Member States.
Done at Brussels, 17 November 1981.
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COMMISSION REGULATION (EC) No 532/2005
of 5 April 2005
amending the import duties in the cereals sector applicable from 6 April 2005
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Council Regulation (EC) No 1784/2003 of 29 September 2003 on the common organisation of the market in cereals (1),
Having regard to Commission Regulation (EC) No 1249/96 of 28 June 1996 laying down detailed rules for the application of Council Regulation (EEC) No 1766/92 as regards import duties in the cereals sector (2), and in particular Article 2(1) thereof,
Whereas:
(1)
The import duties in the cereals sector are fixed by Commission Regulation (EC) No 513/2005 (3).
(2)
Article 2(1) of Regulation (EC) No 1249/96 provides that if during the period of application, the average import duty calculated differs by EUR 5 per tonne from the duty fixed, a corresponding adjustment is to be made. Such a difference has arisen. It is therefore necessary to adjust the import duties fixed in Regulation (EC) No 513/2005,
HAS ADOPTED THIS REGULATION:
Article 1
Annexes I and II to Regulation (EC) No 513/2005 are hereby replaced by Annexes I and II to this Regulation.
Article 2
This Regulation shall enter into force on 6 April 2005.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 5 April 2005.
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*****
COMMISSION REGULATION (EEC) No 2190/84
of 27 July 1984
fixing for the 1984/85 marketing year the minimum price to be paid to producers for Williams pears and the amount of production aid for Williams pears preserved in syrup
THE COMMISSION OF THE EUROPEAN
COMMUNITIES,
Having regard to the Treaty establishing the European Economic Community,
Having regard to the Act of Accession of Greece,
Having regard to Council Regulation (EEC) No 516/77 of 14 March 1977 on the common organization of the market in products processed from fruit and vegetables (1), as last amended by Regulation (EEC) No 988/84 (2), and in particular Articles 3b and 3c thereof,
Whereas, under Article 3b (1) of Regulation (EEC) No 516/77, the minimum price to be paid to producers is to be determined for the Member States other than Greece on the basis of:
(a) the minimum price applying during the previous marketing year;
(b) the movement of basic prices in the fruit and vegetables sector;
(c) the need to ensure the normal marketing of fresh products for the various uses;
Whereas Article 3c of the said Regulation lays down the criteria for fixing the amount of production aid;
Whereas, for the 1984/85 marketing year, the amount of the aid for Williams pears in syrup has been determined with due regard, in particular, in respect of the price of products from non-member countries, to the undertakings given to comply with average prices on imports into the Community entered into by certain suppliers in non-member countries;
Whereas, as regards Greece, pursuant to Article 103 of the Act of Accession and until the first move towards the alignment of prices, the minimum price to be paid to Greek producers is to be established on the basis of prices paid in Greece to national producers, over the reference period defined in Article 1 of Council Regulation (EEC) No 41/81 (3); whereas that price must be aligned with the level of the common prices pursuant to Article 59 of the Act of Accession;
Whereas, as regards Greece, the said Article 103 and Council Regulation (EEC) No 990/84 (4) lay down the criteria for fixing the amount of production aid;
Whereas the measures provided for in this Regulation are in accordance with the opinion of the Management Committee for Products Processed from Fruit and Vegetables,
HAS ADOPTED THIS REGULATION:
Article 1
For the 1984/85 marketing year:
(a) the minimum price referred to in Article 3b of Regulation (EEC) No 516/77 to be paid to producers, and
(b) the production aid referred to in Article 3c of the same Regulation
shall, in respect of Williams pears and Williams pears preserved in syrup, be as set out in the Annex.
Article 2
1. The aid provided for in respect of Greece shall be applicable to all production of processed products obtained from produce grown in Greece.
2. Where processing takes place outside the Member State in which the produce was grown, such Member State shall furnish proof to the Member State paying the production aid that the minimum price payable to the producer has been paid.
Article 3
This Regulation shall enter into force on the day following its publication in the Official Journal of the European Communities.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 27 July 1984.
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COUNCIL REGULATION (EC) No 1264/2006
of 21 August 2006
terminating the investigations concerning the anti-dumping measures applicable to imports of silicon carbide originating in the Russian Federation and Ukraine and imposing a definitive anti-dumping duty on imports of silicon carbide originating in the People's Republic of China following an expiry review pursuant to Article 11(2) of Regulation (EC) No 384/96
THE COUNCIL OF THE EUROPEAN UNION,
Having regard to the Treaty establishing the European Community,
Having regard to Council Regulation (EC) No 384/96 of 22 December 1995 on protection against dumped imports from countries not members of the European Community (1) (the basic Regulation) and in particular Articles 11(2) and 11(3) thereof,
Having regard to the proposal submitted by the Commission after having consulted the Advisory Committee,
Whereas:
1. PROCEDURE
1.1. Previous investigations, measures in force and on-going investigations
(1)
By Regulation (EC) No 821/94 (2), following an expiry review in accordance with Article 14 and 15 of Regulation (EEC) No 2423/88 (3), the Council prolonged the imposed definitive anti-dumping duties on imports of silicon carbide (SiC) originating in the People's Republic of China (PRC), Poland, the Russian Federation (Russia) and Ukraine. At the same time, the Commission, by Decision 94/202/EC (4), accepted an undertaking offered by the Government of Russia, in conjunction with V/O Stankoimport, Moscow, Russia.
(2)
In May 2000, by Regulation (EC) No 1100/2000 (5), the Council again prolonged the definitive anti-dumping duty on imports of SiC originating in the PRC, Russia and Ukraine following an expiry review and also prolonged the undertaking offered by the Russian government in conjunction with V/O Stankoimport, Moscow, Russia accepted by Commission Decision 94/202/EC.
(3)
The investigation mentioned in recital 1 leading to the imposition of definitive anti-dumping duties and the acceptance of undertakings from certain exporters concerned by this investigation, and the expiry reviews concluded in 1994 and 2000 mentioned in recitals 1 and 2 will hereinafter be referred as to ‘the original investigations’.
(4)
In 2004, by Regulation (EC) No 991/2004, the Council provided for the exemption from the anti-dumping duties of imports into the new Member States that acceded to the European Union on 1 May 2004 (the EU-10) made under the terms of special undertaking offers (enlargement undertakings), and authorised the Commission to accept those enlargement undertakings. On this basis, by Decisions 2004/498/EC (6) and 2004/782/EC (7), the Commission accepted the undertakings offered by the Ukrainian exporting producer Open Joint Stock Company ‘Zaporozhsky Abrasivny Combinat’. The acceptance of this undertaking expired on 20 May 2005.
(5)
In January 2004 the Commission initiated a partial interim review (8) requested by Zaporozhsky Abrasivny Combinat, the Ukrainian exporting producer. The applicant had alleged that following a significant change of circumstances it should be granted market economy treatment (MET) and that its dumping margin was significantly below the level of the measures in force. However, following an investigation, it was found that the company did not meet the criteria to be granted MET (Article 2(7)(c) of Regulation (EC) No 384/96 and the investigation was subsequently terminated through Council Regulation (EC) No 779/2005 (9).
(6)
Finally, on 30 June 2005 (10), the Commission initiated an anti-dumping proceeding concerning imports of SiC originating in Romania, further to a complaint lodged by the European Chemical Industry Council (CEFIC) on behalf of producers representing 100 % of the total Community production of SiC. However, further to the withdrawal of the complaint by CEFIC on 1 March 2006, the investigation was terminated by Commission Decision 2006/423/EC (11).
1.2. Request for an expiry review
(7)
Following the publication of a notice of impending expiry of the anti-dumping measures in force of SiC originating in the PRC, Russia and Ukraine (12), the Commission received, on 24 February 2005, a request to review these measures pursuant to Article 11(2) of the basic Regulation. At the same time, the Commission received also a request to review the form of the measures applicable to imports of the product concerned originating in Russia pursuant to Article 11(3) of the basic Regulation.
(8)
These requests were lodged by the European Chemical Industry Council on behalf of producers representing 100 % of the total Community production of SiC. The request for an expiry review was based on the grounds that the expiry of the measures would be likely to result in a continuation or recurrence of dumping and injury to the Community industry. The request for an interim review was based on the fact that the form of the measures would be inappropriate and would not eliminate the injurious effects of the dumping.
(9)
Having determined, after consulting the Advisory Committee, that sufficient evidence existed for the initiation of an expiry review pursuant to Articles 11(2) and an interim review pursuant to Article 11(3) of the basic Regulation, the Commission initiated both reviews on the same date (13).
1.3. Investigation
(10)
The Commission officially advised the exporting producers, importers, raw material producers, users known to be concerned and their associations, the representatives of the exporting countries and the Community producers of the initiation of the expiry and the interim review. Interested parties were given the opportunity to make their views known in writing and to request a hearing within the time limit set out in the notice of initiation.
(11)
In view of the large number of Chinese exporting producers and importers in the Community not related to an exporting producer in one of the countries concerned, it was considered appropriate, in conformity with Article 17 of the basic Regulation, to examine whether sampling should be used. In order to enable the Commission to decide whether sampling would indeed be necessary and, if so, to select a sample, the above parties were requested, pursuant to Article 17(2) of the basic Regulation, to make themselves known within two weeks of the initiation of the proceeding and to provide the Commission with the information requested in the notice of initiation.
(12)
No Chinese exporting producer submitted the requested information and none cooperated in the present proceeding. It was thus decided that sampling was not necessary with regard to the Chinese producers.
(13)
Six unrelated importers in the Community provided the information requested in the notice of initiation and expressed their willingness to cooperate in the further investigation. From the above six importers, three companies were selected for the sample. These importers represented the largest representative volume of imports of known importers in the Community (98 %), which could be investigated within the time available.
(14)
Questionnaires were therefore sent to the three sampled Community importers, to two Community producers, to 18 Community users, to 16 raw material suppliers and to the two known exporting producers in the Ukraine and in the Russian Federation. In addition, two producers in Brazil, which was selected as the potential analogue country, were contacted and received a questionnaire.
(15)
Full replies to the questionnaires were received from the three sampled Community importers, seven users, two raw material producers and two exporting producers in the countries concerned, as well as from two producers in the analogue country.
(16)
The Commission sought and verified all the information deemed necessary for its investigation, and carried out verification visits at the premises of the following companies:
Community producers:
-
Kollo Silicon carbide BV (Netherlands), ESK-SIC GmbH (Germany),
-
Navarro SiC, SA (Spain);
Producers in the exporting countries:
-
JSC Zaporozhsky Abrasivny Combinat, Zaporozhsky (Ukraine),
-
JSC Volzhsky Abrasive Combinat, Volzhsky (Russia);
Producers in the analogue country:
-
Saint-Gobain Materials Cerámicas Ltda, Minas Gerais (Brazil),
-
Treibacher Schleifmittel Brasil Ltda, Sao Paolo (Brazil);
Importers in the Community:
-
Imexco-Ullrich GmbH (Germany),
-
Smyris Abrasivi (Italy);
Users the Community:
-
Morganite Crucible Limited (United Kingdom),
-
TGA Ltd (Czech Republic).
(17)
The investigation regarding the likelihood of a continuation or recurrence of dumping and injury covered the period from 1 April 2004 to 31 March 2005 (investigation period or IP). The examination of the trends relevant for the assessment of a likelihood of a continuation or recurrence of injury covered the period from 1 January 2001 up to the end of the IP (period considered).
(18)
All the parties concerned were informed of the essential facts and considerations on the basis of which the conclusions of this review were based. They were also granted a period within which to make representations subsequent to this disclosure. The representations received, within the deadlines, were carefully considered and where deemed appropriate, taken into account for the findings.
2. PRODUCT CONCERNED AND LIKE PRODUCT
2.1. Product concerned
(19)
The product concerned is the same as that in the original investigations which led to the imposition of measures currently in force, i.e. SiC. SiC is currently classifiable within CN code 2849 20 00.
(20)
SiC is produced by heating silicon and coke (or petroleum coke) at high temperatures (up to 2 000 °C). The output of this process is crude SiC which is usually further processed for its final end-uses. The production process of SiC is such that the output automatically comprises a variety of grades related to different content concentration of silicon. The different grades can be segregated into two main grades: crystalline and metallurgical. The crystalline grade is considered to be of higher quality because it has higher silicon content. The crystalline grade is further classified under the types black and green.
(21)
The crystalline grade is normally used in the manufacturing of abrasive tools, grinding wheels, high-quality refractory products, technical ceramics, while the metallurgical grade is normally used in foundry and blast-furnace operations as a silicon carrier. As in the previous investigations, both grades have to be considered as forming one product for the purpose of this investigation.
2.2. Like product
(22)
As established in the original investigations, the current investigation confirmed that the product concerned and the products manufactured and sold by the exporting producers on their domestic markets, as well as those manufactured and sold by the Community producers on the Community market and by the producer in the analogue country on the domestic market of the analogue country have the same basic physical and chemical characteristics and end uses and are therefore considered to be like products within the meaning of Article 1(4) of the basic Regulation.
3. LIKELIHOOD OF A CONTINUATION AND/OR RECURRENCE OF DUMPING
3.1. Preliminary remarks
(23)
In this expiry review, full cooperation from the two known producers in Ukraine and the Russian Federation was obtained. However, as mentioned in recital 12, no producer came forward from the PRC.
3.2. Dumping of imports during the investigation period
3.2.1. Analogue country
(24)
Since the Ukraine (14) and the PRC were not considered as market economy countries during the investigation period (and in the preceding investigations), normal value had to be established in accordance with Article 2(7)(a) of the basic Regulation, i.e. based on information obtained in a market economy third country where the product was produced and sold domestically. Moreover, it is recalled that the exporting producer in Ukraine had not been able to obtain MET in an interim review which was concluded just before the initiation of this expiry review (see recital 5).
(25)
In the initiation of this expiry review, it was envisaged to use Brazil as an analogue country from where information about production costs and domestic sales could be obtained. It is recalled that Brazil has also been used in the previous expiry review.
(26)
The investigation has confirmed that Brazil is still an appropriate analogue country for the following reasons:
(27)
First, the size of its domestic market makes Brazil a representative country for the establishment of normal value for the two countries concerned. Second, domestic prices in Brazil are governed by normal market forces given the level of demand in the market and the existence of competing producers. Third, the basic physical and chemical characteristics of the like product produced in Brazil can be considered to be identical to the product exported from the two countries concerned. Finally, no arguments against the use of Brazil as an analogue country were put forward.
(28)
Therefore it was concluded that Brazil was a reasonable and appropriate choice as an analogue country in order to establish normal value for imports of SiC originating in the PRC and the Ukraine.
3.2.2. Normal value
3.2.2.1. Normal value for exporting producers in the PRC and the Ukraine
(29)
It was first examined whether the domestic sales by the Brazilian producers, overall and per product type, were made at volumes which were representative as compared to the volumes exported by the PRC and the Ukraine respectively.
(30)
It was found that the volumes of domestic sales by the Brazilian producers exceeded considerably the export sales to the Community by exporting producers in the PRC and the Ukraine, both overall and by product type.
(31)
It was then examined whether the domestic sales of each of the two cooperating producers in Brazil, Saint-Gobain Materials Cerámicas Ltda and Treibacher Schleifmittel Brasil Ltda, to independent customers had been made in the ordinary course of trade, pursuant to Article 2(4) of the basic Regulation.
(32)
It was found that, for both companies, the weighted average selling price of all sales during the IP, was higher than the weighted average unit cost of production. Therefore, all domestic sales were regarded as having been made in the ordinary course of trade. In addition, in order to ensure a fair comparison between prices in Brazil and normal value in the PRC and the Ukraine, adjustments were made in order to take into account of any differences in PCN or level of trade.
(33)
In accordance with Article 2(1) of the basic Regulation, normal value was based on the weighted average prices of the two Brazilian producers' sales to independent customers on their domestic market.
(34)
Subsequent to the definitive disclosure, CEFIC questioned the accuracy of the determination of the normal value claiming that according to their information, sales prices in the Brazilian domestic market were above the export price from the Ukraine to the Community market. However, this claim was not supported by substantiated documentary evidence and had to be rejected. Indeed, the adjustments mentioned in recital (32) above allowed ensuring fair calculation of normal value.
3.2.2.2. Normal Value for exporting producers in Russia
(35)
It was first examined whether the volumes, overall and per product type, of domestic sales by the exporting producer in Russia were representative, i.e. represented at least 5 % of the volumes exported to the Community.
(36)
It was found that, compared to the overall volume of sales, and for some of the product types, the volume of domestic sales represented at least 5 % of the volumes exported to the Community. For those product types where the volume of domestic sales was less than 5 % of the volumes exported to the Community, the normal value had to be constructed pursuant to Article 2(3) of the basic Regulation.
(37)
For those product types where the volumes of domestic sales represented 5 % of the volumes exported, it was examined whether the domestic sales of the Russian producer to independent customers had been made in the ordinary course of trade, pursuant to Article 2(4) of the basic Regulation. This was done by establishing the proportion of domestic sales to independent customers, of each exported type of the product concerned, not sold at a loss on the domestic market during the investigation period.
(a)
For those product types where more than 80 %, by volume, of sales on the domestic market were not below unit costs, i.e. where the average sales price of the product type concerned was equal to or higher than the average production cost for the product type concerned, normal value was calculated as the average price of all domestic sales of the product type in question irrespective of whether these sales were profitable or not.
(b)
For those product types where at least 10 % but no more than 80 %, by volume, of sales on the domestic market were not below unit costs, normal value was calculated as the weighted average sales price of those transactions which were made at or above unit costs of the type in question.
(c)
For those product types where less than 10 %, by volume, was sold on the domestic market at a price not below unit cost, it was considered that the product type concerned was not sold in the ordinary course of trade and therefore, normal value had to be constructed in accordance with Article 2(3) of the basic Regulation.
(38)
Normal values were constructed in accordance with Article 2(6) of the basic Regulation on the basis of the manufacturing cost of the type concerned, to which was added an amount of selling, general and administrative (SG&A) expenses and a margin of profit. The amount of SG&A was that incurred by the exporting producer for the like product and the amount for profit equated to the average profit realised by the exporting producer on sales of the like product in the ordinary course of trade.
3.2.3. Export price
(39)
As mentioned in recital 12, no exporting producers in the PRC cooperated in the investigation. As a result, export prices had to be established on the basis of facts available in accordance with Article 18(1) of the basic Regulation, i.e. information in the complaint.
(40)
The export prices for exporting producers in Ukraine and Russia were established in accordance with Article 2(8) of the basic Regulation, on the basis of export prices actually paid or payable by independent customers in the Community.
(41)
When calculating the export price for the Russian exporter for those transactions which were handled by Stankoimport (i.e. imported AD-free under the Quantitative Undertaking (QT)), all expenses incurred as a result of Stankoimport's involvement have been deducted in order to arrive at the export price at ex-works level.
(42)
CEFIC contested the findings with regard to the export prices determined for Ukraine arguing that prices charged for Ukrainian imports would be much lower. In support of their claim, they submitted certain price offers. This claim, however, had to be rejected as price offers can not be taken into consideration without proof that the transaction(s) finally materialised. In any event, as mentioned at recital 40, export prices retained for dumping calculation were those charged by the exporting producer concerned. These prices were verified during the on spot investigation at the premises of the company concerned.
3.2.4. Comparison
(43)
The normal values and the export prices were compared on an ex-works basis. In accordance with Article 2(10) of the basic Regulation, to achieve a fair comparison between the normal value and the export price, adjustments were made in respect of transport costs, level of trade and packing cost which were claimed and demonstrated to affect prices and price comparability.
3.2.5. Dumping margin
(44)
In accordance with Article 2(11) and (12) of the basic Regulation, the dumping margin was established on the basis of a comparison of the weighted average normal value of each product type with the weighted average export price of the corresponding type.
(45)
On the basis of facts available, in accordance with Article 18(1) of the basic Regulation, i.e. information in the complaint, the dumping margin has been established in the same order as the previous investigation, i.e. around 50 %.
(46)
The dumping margin for exports of SiC from Ukraine during the IP was found to be below the de minimis threshold of Article 9(3) of the basic Regulation.
(47)
It is recalled that Russia has a QT since 1986. The QT has enabled one Russian importer, Stankoimport, to import into the Community a fixed quantity (fixed in % of Community consumption) into the Community free of anti-dumping duties. Quantities above this threshold have been subject to anti-dumping duties. In the dumping calculations performed, no distinctions have been made between those quantities which were exported through the QT (77 %) and those which were subject to the antidumping duty (23 %).
(48)
The dumping margin for exports of SiC from Russia during the IP was found to be below the de minimis threshold of Article 9(3) of the basic Regulation.
3.3. Developments of imports should measures be repealed
3.3.1. PRC
(49)
As has already been explained, no exporting producers cooperated in this investigation. Thus, the likely scenario of what would happen if measures were allowed to lapse has been based on facts available, in particular the complaint and data from Comext (Comext is an electronic database of foreign trade of the European Communities).
(50)
The main third countries to which Chinese exports were directed during the IP were the United States of America and Japan. Information in the complaint suggests that Chinese cif-prices to the United States of America, for the grade ‘Macro Black’, expressed in euro, were in the range of EUR 650/tonne. Moreover, Chinese cif-prices to Japan for the grade ‘Macro Green’, expressed in euro, were in the range of EUR 770/tonne. Price statistics published in business journals supports the accuracy of these price quotations by Chinese exporters.
(51)
Moreover, it was found that the average export prices from the PRC to the United States of America, as obtained from the Comext database, were significantly below the normal value obtained from the analogue country in this investigation, which indicates that these exports may also have been made at dumped prices during the investigation period.
(52)
Given that the average price of the Community Industry (around EUR 1 000‘Macro Black’ and around EUR 1 500 for ‘Macro Green’) is considerably higher, Chinese exporting producers would, in the absence of measures, have an important incentive to divert significant export quantities from their present third country markets to the Community market.
(53)
It should also be recalled that Chinese exports of the product concerned to the EU were found to be dumped in the original investigation and continued to be dumped at the same high levels during the IP of the current investigation. There is no reason to believe that this behaviour would change.
(54)
Moreover, the information available on normal value and prices to third countries, as explained above, supports the conclusion that there is likelihood that, if measures would lapse, Chinese exporters would continue their dumping practises.
(55)
To conclude, there is likelihood that, should measures be repealed, Chinese exports which at present are destined to third country markets are redirected to the Community. Moreover, should measures be repealed, there is a clear risk for dumping of the quantities exported.
(56)
In the request for this review, CEFIC (referring to information collected and published in business journals) has estimated the total production capacity in the PRC to be between 600 000 and 700 000 tonnes. The actual production has been estimated to be around 440 000 tonnes, leaving an unused capacity of between 160 000 and 260 000 tonnes. There is no information about stocks.
(57)
On the basis of the above, it is clear that exporting producers in the PRC have a significant spare capacity to utilise for increased production. To conclude, should measures be repealed, exporting producers would very likely start to utilise their significant unused capacity for exports to the Community.
3.3.2. Russia
(58)
As the only known exporting producer in Russia has cooperated in this investigation, the likely scenario of what would happen if measures were allowed to lapse has been mainly based on information supplied by the exporting producer's verified reply to the questionnaire.
(59)
It should first be mentioned that the prevailing price level within the Community is already subject to a significant influence from imports from Russia given the QT in place, as the Russian exporter is already satisfying around 10 % of Community consumption.
(60)
When comparing the prevailing price level on the domestic market in Russia with the prevailing price level in the Community, the price level in Russia is generally lower. However, given that the quantities that the Russian producer has been able to export free from antidumping duties under the QT were pre-set, the Russian producer has had an incentive to export the crystalline grades (triggering higher prices per tonne) to the Community, leaving metallurgical grades for its domestic market and for other destinations). Therefore the real price differential between the same grades, if any, would be smaller than what a comparison between average price levels suggests.
(61)
To conclude, while the generally higher price level in the Community would normally trigger an increase in exports to the Community should measures be allowed to lapse, this scenario does not appear to be likely in the present case. Indeed, given the existence of the QT, the potential increase of imports of especially high-grade SiC should not be overestimated as the Russian exporter already has had the opportunity to export significant quantities of SiC and has had the incentive to export high-grade SiC. Thus, an increase of imports of SiC is likely to be limited both in quantities and in types of SiC (metallurgical grades) and would in any event in all likelihood not be at dumped prices.
(62)
More than 75 % of the exports to third countries by the Russian producers are destined for the United States of America. When comparing the domestic prices and the export prices to the United States of America, the price levels of the exports to the United States of America are, on average, higher. It should be recognised, however, that the mix of grades of the products sold for export and those sold on the domestic market are probably different (likelihood of exports containing higher value-per-tonne grades to cover the transport costs involved), which makes it difficult to draw conclusions from such a comparison. Nevertheless, it is noted that these exports are not subject to antidumping measures and that there are no indications that such exports would be dumped.
(63)
When comparing the Russian exporter's export prices to its main third country market, the United States of America, with the Russian exporter's export prices to the Community market, it is important to recall the QT in place. As explained above, given the pre-set quantities that the Russian exporter has been able to export to the EC, it has had an incentive to export high value-per-tonne grades to the Community market.
(64)
Similarly and as explained in recital 62, it can be assumed that also the exports to the United States of America, given the transport costs involved, contain mainly high value-per-tonne grades. Thus, this puts the average selling price to the Community market and to the United States market on a reasonably comparable basis.
(65)
Having compared the average selling price to the Community market with the average selling price to the market of the United States of America, the prices to the United States market have been found to be, on average, higher.
(66)
To conclude, there seems to be no apparent incentive for the Russian producer to divert its quantities presently sold on its main export market, the United States, to the Community market, should measures be repealed.
(67)
The capacity of the exporting producer in Russia is limited to 62 000 tonnes. During the IP, it was found to work close to full capacity, having increased its utilisation rate during the reference period. The stocks were found to be normal for this kind of business.
(68)
Given the technology used by the Russian producer (a technology using train cars as places of processing, which are marshalled between electricity installations and places for unloading/sorting), it is unlikely that the exporting producer would be able to expand in the near future.
(69)
To conclude, should measures be allowed to lapse, there are no indications that the Russian producer would be able to increase its production in order to increase its exports to the Community.
3.3.3. Ukraine
(70)
As the only known exporting producer in the Ukraine has cooperated in this investigation, the likely scenario of what would happen if measures were allowed to lapse has been mainly based on information supplied by the exporting producer's verified reply to the questionnaire.
(71)
The capacity of the exporting producer in Ukraine is limited to 23 000 tonnes. During the IP, it was found to work close to full capacity, having increased its utilisation rate during the reference period. The stocks were found to be normal for this kind of business.
(72)
Given the technology used by the Ukrainian producer (same as the Russian producer which is explained in recital 68), it is unlikely that that the exporting producer would be able to expand in the near future.
(73)
CEFIC claimed that the capacity of the exporting producer would be as high as 32 000 tonnes. However, this argument was based on hypothetical information without taking into considerations standstill periods for maintenance and repair, nor taking into account the specificities of the producing company concerned which is located in an urban area and submitted to environmental constraints. On these grounds, the capacity as established in recital 71 was confirmed and the claim by CEFIC had to be rejected.
(74)
To conclude, should measures be allowed to lapse, there are no indications that the Ukrainian producer would be able to increase its production in order to increase its exports to the Community.
(75)
When comparing the prevailing price level on the domestic market in the Ukraine with the prevailing price level in the Community, and prices to third countries, the price level in the Ukraine and to third countries are, on average, lower.
(76)
However, a meaningful comparison between the Ukrainian market, third country markets and the Community market was not possible because the product mix is very different and average prices are therefore not comparable. Moreover, the domestic market in the Ukraine is limited in size and the Ukrainian producer is not able to produce all the various (high-value) grades as the Community producers.
(77)
It could therefore not be established whether, should measures be allowed to lapse, the Ukrainian exporter would have an incentive to divert volumes from its domestic market or from its export markets to the Community market. However, in view of the findings on dumping, and in the light of the overall higher price level prevailing in the Community, it is concluded that, even if exports to the Community market increased, these exports would in all likelihood not be made at dumped prices. Moreover, the increase would in any event be limited (estimated at less than 10 000 tonnes), given the limited capacity of the Ukrainian exporter.
3.4. Conclusions on likelihood of a continuation or recurrence of dumping
3.4.1. PRC
(78)
It is recalled that no exporting producers in the PRC have cooperated in the investigation.
(79)
On the basis of facts available, it was found that Chinese exporters are still dumping and would be likely to continue their dumping practices towards the Community market should measures be allowed to lapse.
(80)
Therefore, it was found that there is a likelihood of continuation of dumping by exporting producers in the PRC should measures be allowed to lapse.
3.4.2. Ukraine
(81)
It is recalled that the Ukrainian exporter has been found not to export at dumped prices during the investigation period and there are no indications that such situation would change if measures were allowed to lapse.
(82)
Furthermore, it was found that, although exports from the Ukraine to the Community may increase, should measures be repealed, such increase is expected to be limited. Indeed, given the limited capacity that the Ukrainian producer holds, this increase of exports to the Community is assumed to be less than 10 000 tonnes and would in all likelihood not be made at dumped prices.
(83)
Therefore, it is considered that there is no likelihood of recurrence of dumping of imports originating in the Ukraine.
3.4.3. Russian federation
(84)
It is recalled that during the investigation period, the Russian producer has been found not to export at dumped prices and there are no indications that such situation would change if measures were allowed to lapse.
(85)
Furthermore, it is recalled that the Russian exporting producer has been able to supply the Community market with a fixed quantity of SiC through a QT for many years. The quantities exported through this channel have amounted to, during the IP, around 17 % of the Russian producer's total capacity. Thus, the Russian exporting producer is already well established on the market, i.e. a sudden increase of imports originating in Russia is therefore highly unlikely.
(86)
Moreover, since the prices at which the Russian exporting producer has sold to third countries were found to be higher than those at which quantities were sold to the Community, the risk for trade diversion of significant quantities to the Community market appears to be relatively small.
(87)
Finally, it was found that the Russian exporting producer was working close to full capacity and has a limited ability to increase its capacity.
(88)
For these reasons, it is considered that there is no risk of recurrence of dumping of imports originating in the Russian Federation.
(89)
Given the findings for Ukraine and Russia, the proceeding should be terminated against these countries.
4. DEFINITION OF THE COMMUNITY INDUSTRY
(90)
The structure of the Community industry changed since the last expiry review, i.e. the former German producer Elektroschmelzwerk Kempten GmbH, München, split in two related companies, one located in the Netherlands and the other in Germany. Only the former is producing and processing the crude SiC, the latter one further processes SiC produced by Kollo Silicon carbide BV but the final product remains the like product. Moreover, ESK-SIC GmbH sells its own SiC but also SiC produced by Kollo Silicon carbide BV Therefore both companies are considered as forming one group.
4.1. Community production
(91)
Within the Community, the like product is manufactured by two producers which constitute the total Community production within the meaning of Article 4(1) of the basic Regulation.
4.2. Community industry
(92)
The following European Community producers have supported the request:
-
Kollo Silicon carbide BV (Netherlands), with its related company ESK-SIC GmbH (Germany),
-
Navarro SiC, SA (Spain).
(93)
As above Community producers represent 100 % of the Community production of the like product, it is concluded that the complainant producers constitute the Community industry within the meaning of Articles 4(1) and 5(4) of the basic Regulation.
5. SITUATION ON THE COMMUNITY MARKET
5.1. Preliminary remarks
(94)
The examination of the impact of the imports concerned on the Community industry included an evaluation of the economic factors and indices having a bearing on the state of the industry as listed in Article 3(5) of the basic Regulation.
5.2. Consumption in the Community market
(95)
The apparent Community consumption was established on the basis of the volume of imports of the product concerned from the countries concerned and all other third countries and the volumes of sales in the Community market of the Community industry.
(96)
The volume of imports was determined on the basis of Eurostat figures corresponding to the relevant CN code during the period considered.
(97)
On this basis, Community consumption has slightly increased from 217 137 tonnes in 2001 to 226 450 tonnes in the IP, i.e. an increase by 4 % over the period considered. The trend is showed in table 1.
(98)
The consumption trend did however not evolve steadily. It is noted that it first decreased from 2001 to 2003 where it fell by 10 %. From 2003 onwards, however, consumption increased again by more than 10 % up to the IP where it exceeded the level of 2001.
(99)
The decrease at the beginning of the period considered is to a large extent explained by the replacement of SiC by other products such as ferro-silicone and industrial diamond, which were less expensive at that time.
(100)
From 2003 onwards, however, in line with a price decrease of SiC, consumption increased again.
Table 1
2001
2002
2003
2004
IP
Community consumption (tonnes)
217 137
205 231
194 486
218 919
226 450
Index
100
95
90
101
104
5.3. Volume, market share and prices of imports from the PRC
(101)
The volumes and market shares of imports of the product concerned from the PRC developed as set out in table 2. Since the exporting producer in the PRC did not cooperate, the price and volume trends were based on information available in accordance with Article 18 of the basic Regulation. Given that no other more reliable information was available volume trends were based on Eurostat statistics.
(102)
The volume of imports originating in the PRC amounted to 1 205 tonnes and represented a market share of 0,6 % in 2001. In 2002 the volume of imports increased slightly and reached a level of 1 467 tonnes, corresponding to a market share of 0,7 %, before declining to 651 tonnes during the IP, corresponding to a market share of 0,3 %.
(103)
Prices of imports from the PRC decreased slightly. However, it should be noted that given the low quantities exported from the PRC, the export prices could not be considered as representative, as they may relate to very specific product types or very specific customers. Therefore no meaningful conclusion could be drawn on price trends on the basis of Eurostat figures. However, on the basis of the information submitted in the complaint regarding prices, it could be established that Chinese prices (ranging from EUR 624 to 1 814/tonne depending on the grade and the quality) were undercutting EC prices by more than 30 %.
Table 2
2001
2002
2003
2004
IP
Volume of imports from the PRC (tonnes)
1 205
1 467
1 465
787
651
Market share of imports from the PRC
0,6 %
0,7 %
0,8 %
0,4 %
0,3 %
5.4. Imports from other countries concerned by the present review
(104)
In order to present a complete picture of the situation on the Community market, the trends of imports of SiC from other countries were also examined. It should be noted, however, that, as regards prices, the data are not comparable given the differences in the product mix, resulting in huge price differentials.
5.4.1. Russia
(105)
The evolution of imports from Russia is as follows:
Table 3
2001
2002
2003
2004
IP
Volume of imports from Russia (tonnes)
21 901
24 368
21 061
20 457
21 810
Market share of imports from Russia
10,1 %
11,9 %
10,8 %
9,3 %
9,6 %
Prices of imports from Russia (EUR/tonne)
453
465
477
464
480
Index: 2001 = 100
100
103
105
102
106
(106)
The volume of imports from Russia decreased slightly from 21 901 tonnes in 2001, corresponding to a market share of 10,1 %, to 21 810 tonnes in the IP, corresponding to a market share of 9,6 %. Average prices of imports from Russia increased by 6,0 % between 2001 and the IP, i.e. from EUR 453/tonne to EUR 480/tonne. A significant volume of imports originating in Russia were made out of the quantitative undertaking mentioned in recital 2. It is to be reminded that an anti-dumping duty of 23,3 % was applicable to all imports exceeding the anti-dumping-duty-free quantities fixed by the before mentioned undertaking.
5.4.2. Ukraine
(107)
The evolution of imports from Ukraine is as follows:
Table 4
2001
2002
2003
2004
IP
Volume of imports from Ukraine (tonnes)
4 956
6 760
7 829
8 491
7 718
Market share of imports from Ukraine
2,3 %
3,3 %
4 %
3,9 %
3,4 %
Prices of imports from Ukraine (EUR/tonne)
504
502
469
468
489
Index: 2001 = 100
100
99
93
96
97
(108)
The volume of imports from Ukraine increased from 4 956 tonnes in 2001, corresponding to a market share of 2,3 %, to 7 718 tonnes in the IP, corresponding to a market share of 3,4 %. Average prices of imports from Ukraine decreased by 3,0 % between 2001 and the IP, i.e. from EUR 504/tonne to EUR 489/tonne. Except for a significant percentage of imports made within the quantitative undertaking mentioned in recital 4 between 2004 and 2005, an anti-dumping duty of 24 % was applicable to imports originating in Ukraine during the period considered.
5.5. Imports from other third countries not concerned by the present review
5.5.1. Romania
(109)
As mentioned above in recital 6, on 30 June 2005, the Commission initiated an anti-dumping proceeding concerning imports of the same product originating in Romania, further to a complaint lodged by CEFIC. However, further to the withdrawal of the complaint by the complainant Community industry this investigation was terminated.
(110)
The evolution of imports from Romania is as follows:
Table 5
2001
2002
2003
2004
IP
Volume of imports from Romania (tonnes)
14 173
15 694
22 844
38 459
42 387
Market share of imports from Romania
6,5 %
7,6 %
11,7 %
17,6 %
18,7 %
Prices of imports from Romania (EUR/tonne)
439
468
465
445
456
Index: 2001 = 100
100
107
106
101
104
(111)
The volume of imports from Romania rose from 14 173 tonnes in 2001, corresponding to a market share of 6,5 %, to 42 387 tonnes in the IP, corresponding to a market share of 18,7 %. Average prices of imports from Romania increased by 3,9 % between 2001 and the IP, i.e. from EUR 439/tonne to EUR 456/tonne.
5.5.2. Norway
(112)
The evolution of imports from Norway is as follows:
Table 6
2001
2002
2003
2004
IP
Volume of imports from Norway (tonnes)
60 496
43 400
32 520
38 160
38 550
Market share of imports from Norway
27,9 %
21,1 %
16,7 %
17,4 %
17,0 %
Prices of imports from Norway (EUR/tonne)
971
919
963
898
973
Index: 2001 = 100
100
95
99
93
100
(113)
The volume of imports from Norway decreased from 60 496 tonnes in 2001, corresponding to a market share of 27,9 %, to 38 550 tonnes in the IP, corresponding to a market share of 17,0 %. Average prices of imports from Norway remained stable between 2001 and the IP, i.e. from EUR 971/tonne in 2001 to EUR 973/tonne during the IP.
5.5.3. Other third countries not mentioned above
(114)
The evolution of imports from other third countries not mentioned above is as follows:
Table 7
2001
2002
2003
2004
IP
Volume of imports from countries not mentioned above (tonnes)
44 473
52 143
48 354
44 804
48 271
Market share of imports from countries not mentioned above
20,5 %
25,4 %
24,9 %
20,5 %
21,3 %
Prices of imports from countries not mentioned above (EUR/tonne)
630
618
558
560
552
Index: 2001 = 100
100
98
89
89
88
(115)
The volume of imports from other third countries increased slightly from 44 473 tonnes in 2001, corresponding to a market share of 20,5 %, to 48 271 tonnes in the IP, corresponding to a market share of 21,3 %. Average prices of imports from other third countries not mentioned above decreased from EUR 630/tonne in 2001 to EUR 552/tonne in the IP.
5.6. Conclusion
(116)
The investigation revealed that imports from Russia and Ukraine remained relatively stable, in terms of market share as well as in terms of average prices. It further revealed that import quantities of Chinese SiC were too small to draw any meaningful conclusion on price trends for SiC of any grade. Therefore, information available to the Commission, i.e. the complaint, was used and revealed that Chinese prices were significantly undercutting EC prices.
(117)
It also showed that imports from Romania practically replaced imports from Norway in quantitative terms as the market share of Romanian imports increased at similar levels than imports from Norway decreased. While imports from Norway were made at higher average prices than those of the Community industry (EUR 973/tonne) possibly due to the high quality grades, import prices from Romania were at significantly lower level (EUR 456/tonne). In this context it has to be noted, however, that imports from Romania refer almost exclusively to the less expensive metallurgical grade, so that no comparison with average prices from other countries can be made.
(118)
As to the development of imports originating in other third countries, it can be noted that the average price followed a decreasing trend, whereas the quantity imported into the Community as well as the market share remained stable during the period considered.
6. ECONOMIC SITUATION OF THE COMMUNITY INDUSTRY
6.1. Preliminary remark
(119)
One Community producer sold part of its output to a related producer which further processed SiC and sold it as the like product on the free market. In the following analysis, however, sales between these related parties have not been taken into account. In particular, it was considered that any parallel analysis of captive sales and sales on the free market is not necessary, since sales of the further processed goods remain sales of the like product. Thus, taking into consideration captive sales would lead to double counting. Likewise, any profit or loss made on the free market by the second producer for sales of the further processed SiC would be compensated by any profit or loss made by the first producer in the captive market, as both producers are considered as one economic entity.
6.2. Production
(120)
Production in volume by the Community industry increased by 4 % during the period considered. Production went down in 2002, in line with a decrease of consumption. From 2002 onwards the production volume evolved positively.
6.3. Production capacity and capacity utilisation rates
(121)
After a decrease in capacity utilisation between 2001 and 2002, capacity utilisation rates have slightly increased since that year and over the period considered by 3 percentage points. As capacity of production remained unchanged throughout the period considered, this development is in line with the development in production volume. Capacity utilisation was always above 75 % during the period considered.
6.4. Sales prices and factors affecting domestic prices
(122)
Unit sales prices of the Community industry increased slightly between 2001 and the IP (less than 5 %). They reached an exceptional peak in 2002, but decreased since then to relatively stable levels slightly above the level of 2001. The peak in the Community's sales prices in 2002 is explained by an increase in production cost during the same period which the Community industry had to reflect in its sales prices accordingly. Subsequently, partly due to the decrease in the Community industry's production cost, partly due to the continued price pressure on the Community market, the Community industry's sales prices decreased again.
6.5. Stocks
(123)
Stocks have slightly decreased over the period considered; i.e. by 1 %, although they increased significantly over the period 2002-2003 before decreasing to its level of 2001 during the IP. This increase has to be explained by the decrease in sales volume as explained in recital 124. From 2003 onwards, stocks decreased not only due to the increase in sales on the Community market but also to an increase of the Community industry's export sales. Notwithstanding this development, it was considered that the level of stocks has been kept at a very reasonable level during the entire period considered.
6.6. Sales volume and market share
(124)
Sales of the like product by the Community industry on the Community market have overall declined by 4 % during the period considered. As Community consumption increased by 4 % during the period considered, such decrease of sales has been translated in a loss of market shares of the Community industry i.e. 2,6 %.
6.7. Investments
(125)
Investments had an increasing trend and doubled over the period considered. It was found that investments concerned replacement, and maintenance but also development of products for new applications.
6.8. Growth
(126)
Overall, it has to be noted that the Community industry's market shares in the free market fell (see recital 124), whereas the overall market grew by 4 %. The Community industry has therefore not been able to participate in the growth of the market.
6.9. Employment and wages
(127)
Employment decreased by 7 % during the period considered. Total wages decreased by 2 % during the period considered. On the other hand the weighted average salary increased because severance payments had to be made for laid off workers. Moreover, in order to fully benefit from the investments made in terms of equipment, skilled workers had to be hired causing thus an increase in labour cost.
6.10. Productivity
(128)
Productivity per employee, measured as output per employee, increased during the period considered by 12 %. This improvement in productivity mirrors the level of investments carried out in machinery as well as the reduction of employees.
6.11. Cash flow, ability to raise capital
(129)
Cash flow increased during the period considered by 10 %.
(130)
The Community producers did not face any problems to raise capital. They financed their activities through loans from related companies and banks. Self financing was also used.
6.12. Return on net assets
(131)
Return on net assets was calculated by expressing the pre-tax net profit of the like product sold in the Community as a percentage of the net book value of fixed assets allocated to the like product sold in the Community. It showed a similar development as profitability (see recital 132).
6.13. Profitability
(132)
Profitability of the Community industry, expressed as a percentage of net sales, showed a sharp downward trend from 2001 to 2003, where the already low profit margin more than halved. Profitability then went up without, however, reaching its level of 2001. During the IP, the profits realised by the Community industry represented slightly more than half of the level reached in 2001. In 2002, the rise in prices could not countervail the rise in cost of production nor the loss caused by lower sales volumes. 2003 showed even lower figures as prices decreased while sales volumes decreased even more. In 2004 and during the IP, the profitability of the Community industry improved due to an important rise in sales volume while the price level was stable.
6.14. Magnitude of dumping margin
(133)
As concerns the impact on the Community industry of the magnitude of the actual margin of dumping, no meaningful conclusion can be drawn given the low level of imports from the PRC.
6.15. Recovery from the effects of past dumping
(134)
While the indicators examined above show some improvement in the situation of the Community industry further to the imposition of anti-dumping measures in 2000, they also evidence the negative trends of some indicators which show that the Community industry is still in a fragile and vulnerable situation.
6.16. Conclusion
(135)
Between 2001 and the IP, the following indicators developed positively: sales prices, capacity utilisation and production volume of the Community industry increased while closing stocks decreased slightly. Productivity increased significantly. Investments and cash flow also showed positive trends.
(136)
Conversely, the following indicators developed negatively: sales volume decreased, cost of production per tonne and average labour cost per employee increased while employment decreased. Profitability and return on net assets eroded as well.
(137)
Overall, the situation of the Community industry is mixed: while some indicators show positive developments, some others show a negative trend. If one compares the above trends with the ones described in the Regulation (EC) No 1100/2000, it is clear that the introduction of the anti-dumping measures in 2000 enabled the Community industry to stabilise its situation, but not to fully recover from its injurious situation. Although the Community industry, following positive developments, started to invest in new equipment destined to new applications, it should be stressed that due to the highly price sensitive market, its market share and profitability decreased.
(138)
The Community industry has benefited from a rise in its unit price of SiC from 2001 to the end of the IP. The initial rise should have compensated the rise in cost of production due to the restructuring and the efficiency related expenses. However, the increase in the selling price could not compensate the rise in the cost of production and profit margins therefore decreased.
(139)
Although consumption in the Community increased by 4 % over the period considered, the Community industry's market share decreased by 2,6 %, i.e. the Community industry was not able to benefit from this increase in consumption.
(140)
On the other hand, the Community industry's export performance improved during the period considered as its export sales increased significantly over the period considered; i.e. by more than 25 %. This development shows that the Community industry produces a competitive product successful on third country markets although in competition with other imports.
(141)
When comparing the situation of the Community industry at the beginning and at the end of the period considered, a number of injury indicators, such as capacity and capacity utilisation, stocks and market share are at similar levels. Other indicators, such as sales volume, cost of production, profitability, return on investments and employment show clear negative trends while only few indicators, i.e. unit sales prices, productivity, investments and cash flow show positive trends. It is therefore concluded that the situation of the Community industry although stabilised during the period considered, as compared to the period preceding the imposition of measures in 2000, is still in a fragile situation. In particular, the clear negative trend in profitability which did still not reach an acceptable level during the IP as well as the decreased market share of the Community industry indicate that it could not fully recover from the effects of injurious dumping.
7. LIKELIHOOD OF CONTINUATION OR RECURRENCE OF INJURY
(142)
As explained in recitals 56 to 57, the exporting producers in the PRC have the potential to substantially raise their exports volume to the Community by redirecting current export volumes to third countries to the more attractive Community market and/or by using their significant spare capacities. Indeed, significant capacities are available reaching more than 200 000 tonnes which represents almost 100 % of Community consumption. It is therefore likely that substantial quantities of Chinese SiC will penetrate the Community market to regain lost market share and increase it further should measures be repealed.
(143)
During the whole period under consideration the North American market continued to be a key area of interest for PRC. While there is just one crude SiC producer in North America left with a capacity of 50 000 tonnes, the consumption in this area is in the region of 250 000 tonnes. The PRC is providing 80 % of imports of US crude silicon carbide imports and 57 % of SiC grain imports, followed by Brazil (12 %), Norway (10 %) and Germany (6 %). Even if PRC would be able to take over the import share in the US of the other third countries, the spare capacities in the PRC would still remain sufficient to flood the Community market with low price SiC should measures be repealed. Indeed, the development on the US market where no anti-dumping duties were in force, will very likely be mirrored on the Community market should measures be repealed.
(144)
Since none of the Chinese exporting producers cooperated, information on the likely Chinese price levels should measures be repealed was based on information available in accordance with Article 18 of the basic Regulation. In this regard, information submitted in the complaint, import statistics and other information available on the market was used. Thus, and as mentioned above in recital 56, the information in the complaint suggests that export prices to the USA and Japan for high quality grades were significantly below the prices for similar grades of the Community industry.
(145)
This trend was confirmed by other sources of information which show Chinese export prices to other third countries such as the USA and South Africa significantly below the export prices to the Community as recorded in Eurostat, i.e. EUR 540/tonne for crystalline grades (97 % minimum) and EUR 123/tonne for metallurgical grades. It should be stressed that Chinese exporters are able to produce and export all kind of high quality SiC to the EC. The investigation revealed that one of the most valuable and cost intensive SiC was sold to the EC at EUR 1 500/tonne duties exclusive, which amounts to EUR 2 400/tonne import duty and AD duty included. Even the latter price is significantly below the price offered by the Community producers. In more general terms, Eurostat statistics show that, historically, export prices from China to the Community were very low, i.e. approximately between EUR 250 and 500/tonne. Thus, it can be expected that Chinese SiC would enter the market again at very low prices if measures lapsed.
(146)
This can be confirmed by the fact that, in 2006, after the substantial reduction of the export license fees by the Chinese authorities, i.e. ranging from EUR 125 to 208/tonne down to EUR 25,8/tonne, export prices to other third countries for the product concerned were down to levels which would undercut even more the current Community industry price level.
(147)
Furthermore, it is likely that, in order to be able to significantly increase their sales, using the huge spare capacity, and gain a substantial market share in the Community, Chinese exporting producers will have to undercut prices of imports from third countries as well. This will increase price pressure and not only prevent the Community industry from recovering fully from the past injury but also lead to a severe deterioration of its still fragile situation.
(148)
For the reasons set out in the above mentioned recitals, it has been determined that there is a likelihood that Chinese exporting producers will resume exports in significant quantities to the Community at dumped prices considerably undercutting the EC prices to regain lost market shares should measures against the PRC be allowed to lapse.
(149)
Therefore it was concluded that there is a likelihood of recurrence of injurious dumping should measures against imports of SiC originating in the PRC be allowed to lapse.
8. COMMUNITY INTEREST
8.1. Introduction
(150)
According to Article 21 of the basic Regulation, it was examined whether the maintenance of the existing anti-dumping measures would be against the interest of the Community as a whole. The determination of the Community interest was based on an appreciation of all the various interests involved.
(151)
It should be recalled that, in the previous investigation, the prolongation of the measures was considered not to be against the interest of the Community. During the original investigation, a significant number of the cooperating users and importers were in favour of the continuation of the measures.
(152)
In the present proceeding, no cooperating user, no importer and no raw material producer opposed the continuation of the measures against the PRC for reasons outlined below in recitals 153, 159 and 160 to 171.
8.2. Interest of the Community industry
8.2.1. Impact of the continuation of the measures
(153)
Despite the partial recovery of the Community industry since the imposition of anti-dumping measures in 2000, it is clear that these measures have not yet fully had the expected remedial effects on the Community industry.
(154)
In case measures against imports of SiC originating in the PRC are maintained, a further price depression on the Community market would be avoided and the Community industry would be able to reach a reasonable price level and to improve its financial situation. This is mainly due to the fact that the Community industry invested heavily in processing capacities of certain types of SiC destined to new applications fields such as diesel particle filters. This will, in all likelihood, allow them to increase their sales prices and volume in the future and to regain lost market share.
(155)
The Community industry has proven to be a structurally viable industry. This was confirmed by improved export performance and it efforts of restructuring.
(156)
For the reasons set out above, it can be reasonably expected that the Community industry will continue to benefit from the measures and further recover by reaching reasonable profit margins. In this light, it was concluded that it would be in interest of the Community industry to maintain measures against imports of SiC originating in the PRC.
8.2.2. Impact of the expiry of the measures
(157)
In contrast, should measures on imports of SiC originating in the PRC expire, massive imports of Chinese SiC at dumped prices are expected to enter the Community market, causing a significant price pressure on the Community market. Under these circumstances, it is likely that the Community industry will start again to suffer injury from increased imports at dumped prices which will also result in a loss of market shares and a deterioration of its economic situation which is still fragile. In such a scenario, the disappearance of the Community industry is not excluded.
(158)
It was therefore concluded that it would be in the interest of the Community interests to maintain measures against imports of SiC originating in the PRC.
8.3. Interest of importers
(159)
As outlined in recital 13 the three sampled importers in the Community not related to an exporting producer filled in a questionnaire. These importers represented 98 % of the import volumes of known importers in the Community. They opposed the continuation of the anti-dumping measures in force against Russia and Ukraine but did not take any specific position with regard to the anti-dumping measures in force against the PRC.
(160)
It is recalled that in the original investigation it was found that the impact of the imposition of measures on importers would not be significant. This has been confirmed by the present investigation. Indeed, since the imposition of measures, no significant change of the economic situation of importers has been found and this is not expected to change if measures are maintained. The verified information submitted by the importers has also shown that they realised reasonable profit margins despite the anti-dumping duty in force.
(161)
On the basis of the foregoing, it was concluded that the continuation of measures applicable to imports of SiC originating in the PRC would not have a significant effect on the situation of importers.
8.4. Interest of users
(162)
As outlined in recitals 14 to 16, eighteen users in the Community representing around 30 % of the total Community consumption provided basic information related to their purchases of the product concerned and expressed their willingness to cooperate. Finally, seven users submitted full questionnaire replies, two of which were investigated on-spot. In this context it has to be noted that the majority of the cooperating users were processors, and only one end-user. None of the cooperating users took any specific position as regards the anti-dumping measures in force against the PRC.
(163)
SiC is used in a wide variety of applications and therefore a large number of user industries are concerned such as abrasive and polishing applications as well as refractory segment for crystalline material. In the metallurgical segment SiC is used as an alloy.
(164)
In examining the possible effect of the imposition of measures on users, it was concluded in the original investigation that in view of the low level of cooperation and comments submitted, measures in force did not have a significant negative impact on their business.
(165)
The current review investigation confirmed the findings as far as SiC originating in the PRC is concerned. Indeed, the analysis of the questionnaire replies revealed that users do not have to expect any cost increase should measures be maintained. As measures at the same level are already in force since 1986, the maintenance of these measures would not change the current situation of the users. In any case, since measures against Russia and Ukraine are terminated, the position of the users having additional sources of supply, will rather improve.
(166)
It is also recalled that since the imposition of measures on imports of SiC originating in PRC no significant change of the economic situation of users could be observed.
(167)
Certain interested parties claimed that the continuation of the measures on imports of SiC originating in the PRC would lead to increased imports of finished products using Chinese SiC. However, no such increase has been observed during the period considered despite the anti-dumping measures in force against the PRC. There were no indications that such an increase of imports of finished products was imminent or foreseeable in the near future. Therefore this argument has to be rejected.
(168)
Some users argued that there would be a shortage of supply should measures be maintained against all three countries which were subject to the present investigation. However, in this respect it is recalled that the measures currently in force have not led to any shortage of supply. Moreover, since anti-dumping measures against Russia and Ukraine are terminated, new sources of supply can enter the Community without any anti-dumping duties. Finally, it is recalled that the purpose of anti-dumping duties is not to prevent imports of SiC from PRC to enter the Community market, but to ensure fair conditions of trade. For these reasons, this argument has to be rejected.
(169)
On the basis of the above, it was concluded that the continuation of measures applicable to imports of SiC originating in the PRC would not have a significant effect on the situation of users.
8.5. Interest of upstream industry
(170)
The Commission received two replies to the questionnaire from suppliers of raw materials to the Community industry. Both stated that anti-dumping measures would have a rather limited impact on their business.
(171)
The investigation confirmed these assessments. It is therefore concluded that there are no compelling reasons of the upstream industry against the continuation of the measures against imports of SiC originating in the PRC.
8.6. Conclusion on Community interest
(172)
From the foregoing it was concluded that if measures would lapse, the situation of the Community industry would deteriorate, which may even lead to its disappearance.
(173)
As for importers, users and raw material producers of SiC, it was found that the imposition of the measures on imports of SiC originating in the PRC did not have any undue negative effects on their economic situation.
(174)
It is therefore concluded that there are no compelling reasons of Community interest against the continuation of the measures on imports of SiC originating in the PRC.
9. INTERIM REVIEW
(175)
Given the findings with regard to Russia and as outlined above in recitals 84 to 89, the anti-dumping proceedings against this country will be terminated and the anti-dumping measures in force will be repealed.
(176)
It follows that the interim review mentioned in recital 7 of this Regulation limited to the examination of the form of the measures in force against Russia should also be terminated.
10. ANTI-DUMPING MEASURES
(177)
All parties were informed of the essential facts and considerations on the basis of which the maintenance of the existing measures is based. They were granted a period to make representations subsequent to this disclosure. No comments were received which were of a nature to change the above conclusions.
(178)
It follows from the foregoing that, as provided for by Article 11(2) of the basic Regulation, the antidumping measures applicable to imports of SiC, originating in the PRC should be maintained.
(179)
Finally, as outlined above, the proceedings related to imports of SiC originating in the Russian Federation and in Ukraine should be terminated and the measures repealed,
HAS ADOPTED THIS REGULATION:
Article 1
The anti-dumping proceeding concerning imports of silicon carbide originating in the Russian Federation and Ukraine falling within CN code 2849 20 00 is hereby terminated and anti-dumping measures imposed on those countries by Regulation (EC) No 1100/2000 are repealed.
Article 2
A definitive anti-dumping duty is hereby imposed on imports of silicon carbide falling within CN Code 2849 20 00 originating in the People's Republic of China.
The rate of the duty applicable to the net, free-at-Community-frontier price, before duty, shall be as follows:
Country
Rate of duty (%)
People's Republic of China
52,6
The provisions in force concerning customs duties shall apply.
Article 3
This Regulation shall enter into force on the day following its publication in the Official Journal of the European Union.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 21 August 2006.
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COMMISSION DECISION of 13 February 1998 laying down special conditions governing imports of fishery and aquaculture products originating in Bangladesh (Text with EEA relevance) (98/147/EC)
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Council Directive 91/493/EEC of 22 July 1991 laying down the health conditions for the production and the placing on the market of fishery products (1), as last amended by Directive 95/71/EC (2), and in particular Article 11 thereof,
Having regard to Council Directive 90/675/EEC of 10 December 1990 laying down the principles governing the organisation of veterinary checks on products entering the Community from third countries (3), as last amended by Directive 96/43/EC (4), and in particular Article 19(7) thereof,
Whereas a Commission expert team has conducted an inspection visit to Bangladesh to verify the conditions under which fishery products are produced, stored and dispatched to the Community;
Whereas the provisions of legislation of Bangladesh on health inspection and monitoring of fishery products may be considered equivalent to those laid down in Directive 91/493/EEC;
Whereas, in Bangladesh the Department of Fisheries - Fish Inspection and Quality Control (DF-FIQC) of the Ministry of Fisheries and Livestock is capable of effectively verifying the application of the laws in force;
Whereas the procedure for obtaining the health certificate referred to in Article 11(4)(a) of Directive 91/493/EEC must also cover the definition of a model certificate, the minimum requirements regarding the language(s) in which it must be drafted and the grade of the person empowered to sign it;
Whereas, pursuant to Article 11(4)(b) of Directive 91/493/EEC, a mark should be affixed to packages of fishery products giving the name of the third country and the approval number of the establishment;
Whereas, pursuant to Article 11(4)(c) of Directive 91/493/EEC, a list of approved establishments must be drawn up; whereas that list must be drawn up on the basis of a communication from the DF-FIQC to the Commission; whereas it is therefore for the DF-FIQC to ensure compliance with the provisions laid down to that end in Article 11(4) of Directive 91/493/EEC;
Whereas the DF-FIQC provided, on 31 December 1997, official assurances regarding compliance with the rules set out in Chapter V of the Annex to Directive 91/493/EEC and regarding the fulfilment of requirements equivalent to those laid down by that Directive for the approval of establishments;
Whereas it is necessary to repeal Commission Decision 97/513/EC of 1 August 1997 concerning certain protective measures with regard to certain fishery products originating in Bangladesh (5);
Whereas the measures provided for in this Decision are in accordance with the opinion of the Standing Veterinary Committee,
HAS ADOPTED THIS DECISION:
Article 1
The Department of Fisheries - Fish Inspection and Quality Control (DF-FIQC) of the Ministry of Fisheries and Livestock shall be the competent authority in Bangladesh for verifying and certifying compliance of fishery and aquaculture products with the requirements of Directive 91/493/EEC.
Article 2
Fishery and aquaculture products originating in Bangladesh, must meet the following conditions:
1. each consignment must be accompanied by a numbered original health certificate, duly completed, signed, dated and comprising a single sheet in accordance with the model in Annex A hereto;
2. the products must come from approved establishments listed in Annex B hereto;
3. except in the case of frozen fishery products in bulk and intended for the manufacture of preserved foods, all packages must bear the word 'BANGLADESH` and the approval number of the establishment of origin in indelible letters;
4. fisheries products must have been prepared and packed after 31 December 1997.
Article 3
1. Certificates as referred to in Article 2(1) must be drawn up in at least one official language of the Member State where the checks are carried out.
2. Certificates must bear the name, capacity and signature of the representative of the DF-FIQC and the latter's official stamp in a colour different from that of other endorsements.
Article 4
Decision 97/513/EC is repealed.
Article 5
This Decision is addressed to the Member States.
Done at Brussels, 13 February 1998.
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Commission Regulation (EC) No 1521/2001
of 25 July 2001
determining the extent to which import rights applications submitted in July 2001 under the tariff quotas for beef provided for by Regulation (EC) No 1216/2001 for Estonia, Latvia, and Lithuania may be accepted
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Commission Regulation (EC) No 1216/2001 of 20 June 2001 laying down, for the period 1 July 2001 to 30 June 2002, detailed rules of application for the tariff quotas for beef originating in Estonia, Latvia and Lithuania(1), and in particular Article 3(3) thereof,
Whereas:
Article 1(1) of Regulation (EC) No 1216/2001 fixes the quantities of fresh, chilled and frozen beef and veal originating in Lithuania, Latvia and Estonia and of processed products originating in Latvia which may be imported on special terms during the period 1 July 2001 to 30 June 2002. No applications were submitted for import rights for beef and veal or processed products,
HAS ADOPTED THIS REGULATION:
Article 1
No applications for import rights were submitted for the period from 1 July 2001 to 30 June 2002 under the import quotas referred to in Article 1(1) of Regulation (EC) No 1216/2001.
Article 2
This Regulation shall enter into force on 26 July 2001.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 25 July 2001.
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*****
COMMISSION DECISION
of 30 December 1982
authorizing the Federal Republic of Germany to restrict the marketing of seed of certain varieties of agricultural plant species
(Only the German text is authentic)
(82/949/EEC)
THE COMMISSION OF THE EUROPEAN
COMMUNITIES,
Having regard to the Treaty establishing the European Economic Community,
Having regard to Council Directive 70/457/EEC of 29 September 1970 on the common catalogue of varieties of agricultural plant species (1), as last amended by Council Directive 80/1141/EEC of 8 December 1980 (2), and in particular Article 15 (2), (3) and (7) thereof,
Having regard to the application lodged by the Federal Republic of Germany,
Whereas under Article 15 (1) of the said Directive, seed or propagating material of varieties of agricultural plant species which have been officially accepted during 1980 in one or more Member States and which also meet the conditions laid down in the said Directive are, with effect from 31 December 1982, no longer subject to any marketing restrictions relating to variety in the Community;
Whereas, however, Article 15 (2) thereof provides that a Member State may be authorized upon application to prohibit the marketing of seed and propagating material of certain varieties;
Whereas the Federal Republic of Germany has applied for such authorization for a certain number of varieties of different species;
Whereas the variety Kawetanya (sugar beet) and the concerned varieties of oats and of maize have not been the subject of official growing trials in the Federal Republic of Germany in view of the German application;
Whereas the said variety of sugar beet has been the subject in the Federal Republic of Germany of an application for official acceptance in so far as their seed is to be marketed in another country (Article 4 (2) (b) thereof); whereas, therefore, even the applicant has not claimed that this variety has any satisfactory value for cultivation or use in the Federal Republic of Germany; whereas, therefore, this variety can be treated as not producing results in the Federal Republic of Germany, which, with respect to their qualities taken as a whole as regards their value for cultivation or use, correspond to those obtained from a comparable variety accepted there (first subparagraph of Article 15 (3) (c) thereof);
Whereas the varieties of oats concerned are of the winter type; whereas the varieties of maize concerned have an FAO maturity class index over 350; whereas it is well known that the varieties of winter oats and the varieties of maize which have an FAO maturity class over 350 are at present not yet suitable for cultivation in view of all the kinds of utilization in the Federal Republic of Germany (second subparagraph of Article 15 (3) (c) of the said Directive);
Whereas, in respect of the variety Checker (red fescue), the results of the trials show that in the Federal Republic of Germany, when compared with the national rules governing the acceptance of varieties there, which apply within the framework of current Community provisions, it is not sufficiently uniform in certain characteristics (Article 15 (3) (a), third case, of the said Directive);
Whereas, therefore, the application of the Federal Republic of Germany in respect of all these varieties should be granted in full;
Whereas the measures provided for in this Decision are in accordance with the opinion of the Standing Committee on Seed and Propagating Material for Agriculture, Horticulture and Forestry,
HAS ADOPTED THIS DECISION:
Article 1
1. The Federal Republic of Germany is hereby authorized to prohibit the marketing in its territory of seed of the following varieties listed in the 1983 common catalogue of varieties of agricultural plant species:
I. Sugar beet
Kawetanya
II. Fodder plants
Festuca rubra L.
Checker
III. Cereals
1. Avena sativa L.
Fringante
Joker
Kalott
Oyster
Rosette
2. Zea mays L.
1.2 // Aga // Maestrale // Albret // Marechal // Argo // Mark // Arlon // Monsone // Atlante // Monsur // Augusto 6666 // Montot // Antares // Nickerson 601 // Baio // Nickerson 702 // Banat // Oreas // Barn 394 // Orfeo // Cesare 606 // Padano // Cheyenne // Picco // Cobra // Pivot // Dekalb XL365 // Pratile // Dendor // Radar // Erik // Ribot // Ermes G 4449 // Scipio // Fany // Sirio // Frank // Splendid 7951 // Galba // Texas // Illini // Titan // Ilona // Traiano 74 // Imperator // Vulcano // Isar // Wonder Kelly 3002 // Lipari //
2. In respect of the variety Kawetanya (sugar beet), this authorization shall be valid only to the extent that its seed is not to be marketed in another country.
Article 2
The authorization under Article 1 shall be withdrawn as soon as it is established that the conditions thereof are no longer satisfied.
Article 3
The Federal Republic of Germany shall notify the Commission of the date from which it makes use of the authorization under Article 1 and the detailed methods to be followed. The Commission shall inform the Member States thereof.
Article 4
This Decision is addressed to the Federal Republic of Germany.
Done at Brussels, 30 December 1982.
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Commission Regulation (EC) No 553/2003
of 27 March 2003
fixing the export refunds on cereal-based compound feedingstuffs
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Council Regulation (EEC) No 1766/92 of 30 June 1992 on the common organization of the market in cereals(1), as last amended by Regulation (EC) No 1666/2000(2), and in particular Article 13(3) thereof,
Whereas:
(1) Article 13 of Regulation (EEC) No 1766/92 provides that the difference between quotations or prices on the world market for the products listed in Article 1 of that Regulation and prices for those products within the Community may be covered by an export refund.
(2) Regulation (EC) No 1517/95 of 29 June 1995 laying down detailed rules for the application of Regulation (EEC) No 1766/92 as regards the arrangements for the export and import of compound feedingstuffs based on cereals and amending Regulation (EC) No 1162/95 laying down special detailed rules for the application of the system of import and export licences for cereals and rice(3) in Article 2 lays down general rules for fixing the amount of such refunds.
(3) That calculation must also take account of the cereal products content. In the interest of simplification, the refund should be paid in respect of two categories of "cereal products", namely for maize, the most commonly used cereal in exported compound feeds and maize products, and for "other cereals", these being eligible cereal products excluding maize and maize products. A refund should be granted in respect of the quantity of cereal products present in the compound feedingstuff.
(4) Furthermore, the amount of the refund must also take into account the possibilities and conditions for the sale of those products on the world market, the need to avoid disturbances on the Community market and the economic aspect of the export.
(5) However, in fixing the rate of refund it would seem advisable to base it at this time on the difference in the cost of raw inputs widely used in compound feedingstuffs as the Community and world markets, allowing more accurate account to be taken of the commercial conditions under which such products are exported.
(6) The refund must be fixed once a month; whereas it may be altered in the intervening period.
(7) The Management Committee for Cereals has not delivered an opinion within the time limit set by its chairman,
HAS ADOPTED THIS REGULATION:
Article 1
The export refunds on the compound feedingstuffs covered by Regulation (EEC) No 1766/92 and subject to Regulation (EC) No 1517/95 are hereby fixed as shown in the Annex to this Regulation.
Article 2
This Regulation shall enter into force on 28 March 2003.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 27 March 2003.
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COMMISSION DECISION
of 26 March 1999
authorising the Member States to permit temporarily the marketing of seed of certain species not satisfying the requirements of Council Directives 66/401/EEC or 66/402/EEC
(notified under document number C(1999) 794)
(1999/265/EC)
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Council Directive 66/401/EEC of 14 June 1966 on the marketing of fodder plant seed(1), as last amended by Directive 98/96/EC(2), and in particular Article 17 thereof,
Having regard to Council Directive 66/402/EEC of 14 June 1966 on the marketing of cereal seed(3), as last amended by Directive 99/8/EC(4), and in particular Article 17 thereof,
Having regard to the requests submitted by Finland, Sweden and the United Kingdom,
(1) Whereas in the abovementioned Member States the quantity of available seed of spring varieties of fodder plants or cereals which satisfies the requirements of the said Directives in relation to the germination capacity or, in the case of Finland in so far as cereal seed of the category "certified seed" is concerned, also the conditions in respect of the maximum number of generations following "basic seed", is insufficient and is therefore not adequate to meet these countries' needs;
(2) Whereas it is not possible to cover this demand satisfactorily with seed from other Member States, or from third countries, satisfying all the requirements laid down in the Directives;
(3) Whereas Finland, Sweden and the United Kingdom should therefore be authorised to permit for a period expiring on 30 June 1999 the marketing of seed of spring varieties of fodder plants or cereals subject to less stringent requirements;
(4) Whereas, moreover, other Member States which are able to supply Finland, Sweden or the United Kingdom with seed not satisfying the requirements of the Directives should be authorised to permit the marketing of such seed;
(5) Whereas the measures provided for in this Decision are in accordance with the opinion of the Standing Committee on Seeds and Propagating Material for Agriculture, Horticulture and Forestry,
HAS ADOPTED THIS DECISION:
Article 1
Finland is authorised to permit, for a period expiring on 30 June 1999, for the species and on the terms set out in the Annex hereto, the marketing in its territory of certified seed of spring varieties of fodder plants or cereals which does not satisfy the requirements laid down in Directives 66/401/EEC or 66/402/EEC, with regard to the minimum germination capacity, or in so far as cereal is concerned, also the conditions in respect of the maximum number of generations following "basic seed", provided that the following requirements where applicable are satisfied:
(a) the germination capacity is at least that laid down in the Annex hereto;
(b) the maximum number of generations following "basic seed" is that laid down in the Annex hereto;
(c) the official label shall state
- where (a) is applicable the germination ascertained in the report on official seed testing,
- where (b) is applicable the actual number of generations following "basic seed".
Article 2
Sweden is authorised to permit, for a period expiring on 30 June 1999, for the species and on the terms set out in the Annex hereto, the marketing in its territory of seed of spring varieties of fodder plants or cereals which does not satisfy the requirements laid down in Directives 66/401/EEC or 66/402/EEC, with regard to the minimum germination capacity, provided that the following requirements are satisfied:
(a) the germination capacity is at least that laid down in the Annex hereto;
(b) the official label shall state the germination ascertained in the report on official seed testing.
Article 3
The United Kingdom is authorised to permit, for a period expiring on 30 June 1999, for the species and on the terms set out in the Annex hereto, the marketing in its territory of seed of spring varieties of cereals which do not satisfy the requirements laid down in Directive 66/402/EEC, with regard to the minimum germination capacity, provided that the following requirements are satisfied:
(a) the germination capacity is at least that laid down in the Annex hereto;
(b) the official label shall state the germination ascertained in the report on official seed testing.
Article 4
1. The Member States other than the applicant Member States are also authorised to permit, on the terms set out in Article 1 to 3 and for the purposes intended by the applicant Member States, the marketing in their territories of the seed authorised to be marketed under this Decision.
2. For the purpose of the application of paragraph 1, the Member States concerned shall assist each other administratively. The applicant Member States shall be notified by other Member States of their intention to permit the marketing of such seed before any authorisation may be granted. The applicant Member States may object only if the entire amount set out in this Decision has already been allocated.
Article 5
Member States shall immediately notify the Commission and the other Member States of the various quantities of seed labelled and permitted to be marketed in their territories pursuant to this Decision.
Article 6
This Decision is addressed to the Member States.
Done at Brussels, 26 March 1999.
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COMMISSION DECISION of 29 July 1996 on financial aid from the Community for the work of the Bundesinstitut für gesundheitlichen Verbraucherschutz und Veterinärmedizin (formerly called the Bundesgesundheitsamt), Berlin, Germany, a Community reference laboratory for residue testing (Only the German text is authentic) (Text with EEA relevance) (96/517/EC)
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Council Decision 90/424/EEC of 26 June 1990 on expenditure in the veterinary field (1), as last amended by Decision 94/370/EC (2), and in particular Article 28 thereof,
Whereas pursuant to Article 1 (c) of Council Decision 91/664/EEC of 11 December 1991 designating the Community reference laboratories for testing certain substances for residues (3) the Bundesinstitut für gesundheitlichen Verbraucherschutz und Veterinärmedizin, Berlin, Germany, was designated as the reference laboratory for the residues referred to in Annex I, group A.III (b) to Council Directive 86/469/EEC (4) and residues of beta-agonists and sulphonamides;
Whereas Decision 91/664/EEC is repealed from 1 July 1997 by Article 36 of Council Directive 96/23/EC (5) on measures to monitor certain substances and residues thereof in live animals and animal products;
Whereas Annex V (1) (c) to Directive 96/23/EC applies from 1 July 1997; whereas the Bundesinstitut für gesundheitlichen Verbraucherschutz und Veterinärmedizin, Berlin, Germany, was designated as the reference laboratory for the residues referred to in Annex I, groups A 5 and B 2 (a), (b) and (e);
Whereas all the tasks to be performed by the reference laboratory are defined in Article 1 of Council Decision 89/187/EEC of 6 March 1989 determining the powers and conditions of operation of the Community reference laboratories provided for by Directive 86/469/EEC concerning the examination of animals and fresh meat for the presence of residues (6);
Whereas Decision 89/187/EEC is repealed from 1 July 1997 by Article 36 of Directive 96/23/EC;
Whereas Annex V (2) to Directive 96/23/EC applies from 1 July 1997;
Whereas, in accordance with Commission Decisions 93/460/EEC (7), 94/493/EC (8) and 95/304/EC (9), the Community granted financial aid to the Community reference laboratory for residue testing, Berlin, Germany, for a period expiring on 1 August 1996; whereas additional financial aid should be granted for two years from that date in order to enable the reference laboratory to continue to perform its functions and tasks;
Whereas the Community financial aid will be reviewed, with a view to an extension, before the end of that period;
Whereas, inter alia for the purposes of control, Articles 8 and 9 of Council Regulation (EEC) No 729/70 of 21 April 1970 on the financing of the common agricultural policy (10), as last amended by Regulation (EEC) No 2048/88 (11), should apply;
Whereas the measures provided for in this Decision are in accordance with the opinion of the Standing Veterinary Committee,
HAS ADOPTED THIS DECISION:
Article 1
The Community hereby grants Germany financial aid for the functions and tasks referred to in:
- Article 1 of Decision 89/187/EEC to be performed by the Community reference laboratory for residue testing designated in Article 1 (c) of Decision 91/664/EEC, for the period 1 August 1996 to 30 June 1997,
- Chapter 2 of Annex V to Directive 96/23/EC to be performed by the Community reference laboratory for residue testing designated in Annex V (1) (c) to that Directive, for the period 1 July 1997 to 31 July 1998.
Article 2
The Bundesinstitut für gesundheitlichen Verbraucherschutz und Veterinärmedizin (formerly called the Bundesgesundheitsamt), Berlin, Germany shall perform the functions and tasks referred to in Article 1.
Article 3
The Community financial aid shall be a maximum of ECU 800 000 for the period 1 August 1996 to 31 July 1998.
Article 4
The Community financial aid shall be granted as follows:
- 25 % in advance at the request of Germany at the beginning of each of the first three six-month periods of the period concerned,
- the balance after submission of supporting documents by Germany. Those documents must be submitted by 1 October 1998.
Article 5
Each year, two months after the end of the financial year at the latest, France shall send the Commission a detailed technical report on the work carried out by the laboratory in performing the tasks conferred on it.
Article 6
Articles 8 and 9 of Regulation (EEC) No 729/70 shall apply mutatis mutandis.
Article 7
This Decision is addressed to the Federal Republic of Germany.
Done at Brussels, 29 July 1996.
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*****
COMMISSION DECISION
of 30 July 1986
approving a programme pursuant to Council Regulation (EEC) No 895/85 on a common measure to improve the structures of the wine-making sector in Greece
(Only the Greek text is authentic)
(86/411/EEC)
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Economic Community,
Having regard to Council Regulation (EEC) No 895/85 of 1 April 1985 on a common measure to improve the structures of the wine-making sector in Greece (1), and in particular Article 2 (2) thereof,
Whereas on 7 February 1986 the Greek Government forwarded a programme for restructuring certain areas planted with vines in Greece and on 12 March 1986, at the Commission's request, forwarded certain details and corrections;
Whereas the programme contains the information referred to in Article 3 of Regulation (EEC) No 895/85 to show that the objectives of the Regulation can be achieved;
Whereas the EAGGF Committee has been consulted on the financial aspects;
Whereas, in accordance with Article 7 of Regulation (EEC) No 895/85, the procedures must be drawn up, in agreement with the Greek Government, for the periodic communication to the Commission of the information referred to in Article 6 (2) of the Regulation concerning the implementation of the programme;
Whereas the measures provided for in this Decision are in accordance with the opinion of the Standing Committee on Agricultural Structures,
HAS ADOPTED THIS DECISION:
Article 1
The programme for restructuring certain areas planted with vines in Greece, forwarded by the Greek Government on 7 February 1986, concerning which supplementary information was submitted on 12 March 1986, is hereby approved.
Article 2
1. Before 1 July each year the Greek Government shall submit a progress report on the programme referred to in Article 1.
The report shall contain the following information:
- the state of advance, for the preceding calendar year, of the measures provided for in the programme, listed in Article 3 of Regulation (EEC) No 895/85, with details of the areas where the restructuring operations are in progress and the type of operation (grubbing up or/and replanting),
- details of the areas in categories 1 and 2, within the meaning of Article 29 of Regulation (EEC) No 337/79 (2), undergoing restructuring, and the extent of the areas in category 3 where vineyards are being grubbed,
- the number of beneficiaries per year and groups formed for the purposes of grouped or collective operations, with the number of their members,
- in cases of collective restructuring in a context of land consolidation, the number of consolidation operations and land parcels before and after the operation,
- as regards technical assistance, the number of persons employed during the year, with their date of recruitment, terms of employment and place of employment; a detailed breakdown of expenditure for technical assistance, the number of courses organized, hours worked and number of wine-growers attending,
- additional provisions to ensure that accompanying measures relate solely to requirements arising from vineyard restructuring operations provided for in the programme,
- confirmation that the land improvement measures (clearance, measures to combat erosion, access roads to plots) have not received aid under other common measures; if other common measures are being applied in the same areas for similar schemes, those common measures shall be applied by priority, and any expenditure shall be charged thereto,
- additional provisions to ensure effective supervision of the implementation of the programme and the outcome of such supervision,
- particulars regarding expenditure during the calendar year in question, broken down between the various operations, with indications of the funding sources,
- in cases where the scale of the operations and expenditure diverge significantly from the programme forecasts: indication of reasons.
2. Not less than every two years, the Greek authorities responsible for implementing the programme and the Commission departments shall meet to monitor progress.
Article 3
This Decision is addressed to the Hellenic Republic.
Done at Brussels, 30 July 1986.
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COMMISSION REGULATION (EC) No 849/2008
of 28 August 2008
amending Regulation (EC) No 3199/93 on the mutual recognition of procedures for the complete denaturing of alcohol for the purposes of exemption from excise duty
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Council Directive 92/83/EEC of 19 October 1992 on the harmonisation of the structures of excise duties on alcohol and alcoholic beverages (1), and in particular Article 27(4) thereof,
Whereas:
(1)
Commission Regulation (EC) No 3199/93 (2) provides that the denaturants which are employed in each Member State for the purposes of completely denaturing alcohol in accordance with Article 27(1)(a) of Directive 92/83/EEC are to be described in the Annex to that Regulation.
(2)
Pursuant to Article 27(1)(a) of Directive 92/83/EEC, Member States are required to exempt from excise duty alcohol which has been completely denatured in accordance with the requirements of any Member State, provided that such requirements have been duly notified and accepted in accordance with the conditions laid down in paragraphs 3 and 4 of that Article.
(3)
On 11 September 2007 Greece communicated some changes to its denaturing processes authorised by Regulation (EC) No 3199/93.
(4)
The Commission transmitted that communication to the other Member States on 27 September 2007.
(5)
As neither the Commission nor any Member State has requested that the matter be raised in the Council within the time limit prescribed, the Council is deemed, pursuant to Article 27(4) of Directive 92/83/EEC, to have authorised, with effect from 27 November 2007, the changes to the denaturing processes notified by Greece.
(6)
Regulation (EC) No 3199/93 should therefore be amended accordingly.
(7)
The measures provided for in this Regulation are in accordance with the opinion of the Committee on Excise Duties,
HAS ADOPTED THIS REGULATION:
Article 1
The entry concerning Greece in the Annex to Regulation (EC) No 3199/93 is replaced by the following:
‘Greece
Low quality ethyl alcohol (heads and tails from distillation), with an alcoholic strength of at least 93 % vol and not exceeding 96 % vol, to which the following substances are added per hectolitre of hydrated alcohol of 93 % vol:
-
Methanol: 2 litres,
-
Spirit of turpentine: 1 litre,
-
Lamp Oil: 0,50 litre,
-
Methylene blue: 0,40 grams.
At a temperature of 20 °C, the end product should reach, in its unaltered state, 93 % vol.’.
Article 2
This Regulation shall enter into force on the third day following its publication in the Official Journal of the European Union.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 28 August 2008.
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COMMISSION REGULATION (EEC) No 1441/93 of 10 June 1993 concerning the stopping of fishing for common sole by vessels flying the flag of Belgium
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Economic Community,
Having regard to Council Regulation (EEC) No 2241/87 of 23 July 1987 establishing certain control measures for fishing activities (1), as last amended by Regulation (EEC) No 3483/88 (2), and in particular Article 11 (3) thereof,
Whereas Council Regulation (EEC) No 3919/92 of 20 December 1992 fixing, for certain fish stocks and groups of fish stocks, the total allowable catches for 1993 and certain conditions under which they may be fished (3), as last amended by Regulation (EEC) No 927/93 (4), provides for common sole quotas for 1993;
Whereas, in order to ensure compliance with the provisions relating to the quantitative limitations on catches of stocks subject to quotas, it is necessary for the Commission to fix the date by which catches made by vessels flying the flag of a Member State are deemed to have exhausted the quota allocated;
Whereas, according to the information communicated to the Commission, catches of common sole in the waters of ICES divisions VIII a, b by vessels flying the flag of Belgium or registered in Belgium have reached the quota allocated for 1993; whereas Belgium has prohibited fishing for this stock as from 27 May 1993; whereas it is therefore necessary to abide by that date,
HAS ADOPTED THIS REGULATION:
Article 1
Catches of common sole in the waters of ICES divisions VIII a, b by vessels flying the flag of Belgium or registered in Belgium are deemed to have exhausted the quota allocated to Belgium for 1993.
Fishing for common sole in the waters of ICES divisions VIII a, b by vessels flying the flag of Belgium or registered in Belgium is prohibited, as well as the retention on board, the transhipment and the landing of such stock captured by the abovementioned vessels after the date of application of this Regulation.
Article 2
This Regulation shall enter into force on the day following its publication in the Official Journal of the European Communities.
It shall apply with effect from 27 May 1993.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 10 June 1993.
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COMMISSION REGULATION (EC) No 1707/2005
of 18 October 2005
establishing unit values for the determination of the customs value of certain perishable goods
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code (1),
Having regard to Commission Regulation (EEC) No 2454/93 (2) laying down provisions for the implementation of Regulation (EEC) No 2913/92, and in particular Article 173(1) thereof,
Whereas:
(1)
Articles 173 to 177 of Regulation (EEC) No 2454/93 provide that the Commission shall periodically establish unit values for the products referred to in the classification in Annex 26 to that Regulation.
(2)
The result of applying the rules and criteria laid down in the abovementioned Articles to the elements communicated to the Commission in accordance with Article 173(2) of Regulation (EEC) No 2454/93 is that unit values set out in the Annex to this Regulation should be established in regard to the products in question,
HAS ADOPTED THIS REGULATION:
Article 1
The unit values provided for in Article 173(1) of Regulation (EEC) No 2454/93 are hereby established as set out in the table in the Annex hereto.
Article 2
This Regulation shall enter into force on 21 October 2005.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 18 October 2005.
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COMMISSION REGULATION (EC) No 2800/1999
of 17 December 1999
establishing transitional arrangements for the aid payment provided for in Council Regulation (EC) No 1255/1999 in respect of skimmed-milk powder denatured or processed into compound feedingstuffs in another Member State and repealing Regulation (EEC) No 1624/76
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Council Regulation (EC) No 1255/1999 of 17 May 1999 on the common organisation of the market in milk and milk products(1), and in particular Article 15 thereof,
Whereas:
(1) Article 11 of Regulation (EC) No 1255/1999 provides for aid for skimmed-milk powder intended for use as feedingstuffs and replaces Council Regulation (EEC) No 986/68 of 15 July 1968 laying down general rules for granting aid for skimmed milk and skimmed milk powder for use as feed(2), as last amended by Commission Regulation (EC) No 1802/95(3). The third subparagraph of Article 3(1) of Regulation (EEC) No 986/68 stipulates that a Member State may grant aid for skimmed-milk powder produced on its territory if it is denatured or processed into compound feedingstuffs in another Member State;
(2) experience shows that these particular payment arrangements encumber application of the aid measure in question and make it more vulnerable to fraud. It is therefore appropriate to abolish these arrangements, the detailed rules of which are laid down in Commission Regulation (EEC) No 1624/76(4), as last amended by Regulation (EC) No 3337/94(5). They should continue to apply for six months, however, so that the Member States concerned have sufficient time to introduce the normal payment arrangements. Provision should therefore be made for transitional arrangements for the period in question, which refer to the provisions of Regulation (EEC) No 1624/76;
(3) the measures provided for in this Regulation are in accordance with the opinion of the Management Committee for Milk and Milk Products,
HAS ADOPTED THIS REGULATION:
Article 1
The aid payment provided for in Article 11 of Regulation (EC) No 1255/1999 for skimmed-milk powder produced in a Member State and destined for another Member State for denaturing or processing into compound feedingstuffs there in accordance with Regulation (EC) No 2799/1999(6) shall be governed by Regulation (EEC) No 1624/76 between 1 January and 30 June 2000 inclusive.
Article 2
Regulation (EEC) No 1624/76 is hereby repealed with effect from 1 July 2000. It shall continue to apply to quantities of skimmed-milk powder for which the administrative formalities for their consignment to the Member State of destination are completed before that date.
Article 3
This Regulation shall enter into force on 1 January 2000.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 17 December 1999.
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COMMISSION DIRECTIVE 2005/57/EC
of 21 September 2005
amending Council Directive 91/414/EEC to include MCPA and MCPB as active substances
(Text with EEA relevance)
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Council Directive 91/414/EEC of 15 July 1991 concerning the placing of plant protection products on the market (1), and in particular Article 6(1) thereof,
Whereas:
(1)
Commission Regulation (EEC) No 3600/92 of 11 December 1992 laying down the detailed rules for the implementation of the first stage of the programme of work referred to in Article 8(2) of Council Directive 91/414/EEC concerning the placing of plant protection products on the market (2) establishes a list of active substances to be assessed, with a view to their possible inclusion in Annex I to Directive 91/414/EEC. That list includes MCPA and MCPB.
(2)
For those active substances the effects on human health and the environment have been assessed in accordance with the provisions laid down in Regulation (EEC) No 3600/92 for a range of uses proposed by the notifiers. By Commission Regulation (EC) No 933/94 of 27 April 1994 laying down the active substances of plant protection products and designating the rapporteur Member State for the implementation of Regulation (EEC) No 3600/92 (3), Italy was designated as rapporteur Member State. On 5 April 2001 and 19 December 2001 Italy submitted the relevant assessment reports and recommendations to the Commission in accordance with Article 7(1)(c) of Regulation (EEC) No 3600/92.
(3)
The assessment reports have been reviewed by the Member States and the Commission within the Standing Committee on the Food Chain and Animal Health. The reviews were finalised on 15 April 2005 in the format of the Commission review reports for MCPA and MCPB.
(4)
The reviews of MCPA and MCPB did not reveal any open question to be addressed by the Scientific Committee on Plants or the European Food Safety Authority (EFSA) which has taken over the role of the latter.
(5)
It has appeared from the various examinations made that plant protection products containing MCPA or MCPB may be expected to satisfy, in general, the requirements laid down in Article 5(1)(a) and (b) of Directive 91/414/EEC, in particular with regard to the uses which were examined and detailed in the Commission review reports. It is therefore appropriate to include these active substances in Annex I, in order to ensure that in all Member States the authorisations of plant protection products containing these active substances can be granted in accordance with the provisions of that Directive.
(6)
A reasonable period should be allowed to elapse before an active substance is included in Annex I in order to permit Member States and the interested parties to prepare themselves to meet the new requirements which will result from the inclusion.
(7)
Without prejudice to the obligations defined by Directive 91/414 as a consequence of including an active substance in Annex I, Member States should be allowed a period of six months after inclusion to review existing authorisations of plant protection products containing MCPA or MCPB to ensure that the requirements laid down by Directive 91/414/EEC, in particular in its Article 13 and the relevant conditions set out in Annex I, are satisfied. Member States should vary, replace or withdraw, as appropriate, existing authorisations in accordance with the provisions of Directive 91/414/EEC. By derogation from the above deadline, a longer period should be provided for the submission and assessment of the complete Annex III dossier of each plant protection product for each intended use in accordance with the uniform principles laid down in Directive 91/414/EEC.
(8)
The experience gained from previous inclusions in Annex I to Directive 91/414/EEC of active substances assessed in the framework of Regulation (EEC) No 3600/92 has shown that difficulties can arise in interpreting the duties of holders of existing authorisations in relation to access to data. In order to avoid further difficulties it therefore appears necessary to clarify the duties of the Member States, especially the duty to verify that the holder of an authorisation demonstrates access to a dossier satisfying the requirements of Annex II to that Directive. However, this clarification does not impose any new obligations on Member States or holders of authorisations compared to the directives which have been adopted until now amending Annex I.
(9)
It is therefore appropriate to amend Directive 91/414/EEC accordingly.
(10)
The measures provided for in this Directive are in accordance with the opinion of the Standing Committee on the Food Chain and Animal Health,
HAS ADOPTED THIS DIRECTIVE:
Article 1
Annex I to Directive 91/414/EEC is amended as set out in the Annex to this Directive.
Article 2
Member States shall adopt and publish by 31 October 2006 at the latest the laws, regulations and administrative provisions necessary to comply with this Directive. They shall forthwith communicate to the Commission the text of those provisions and a correlation table between those provisions and this Directive.
They shall apply those provisions from 1 November 2006.
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. Member States shall determine how such reference is to be made.
Article 3
1. Member States shall in accordance with Directive 91/414/EEC, where necessary, amend or withdraw existing authorisations for plant protection products containing MCPA or MCPB as active substances by 31 October 2006. By that date, they shall in particular verify that the conditions in Annex I to that Directive relating to MCPA and MCPB respectively are met, with the exception of those identified in part B of the entry concerning those active substances, and that the holder of the authorisation has, or has access to, a dossier satisfying the requirements of Annex II to that Directive in accordance with the conditions of Article 13.
2. By derogation from paragraph 1, for each authorised plant protection product containing MCPA or MCPB as either the only active substance or as one of several active substances all of which were listed in Annex I to Directive 91/414/EEC by 30 April 2006 at the latest, Member States shall re-evaluate the product in accordance with the uniform principles provided for in Annex VI to Directive 91/414/EEC, on the basis of a dossier satisfying the requirements of Annex III to that Directive and taking into account part B of the entry in Annex I to that Directive concerning MCPA and MCPB respectively. On the basis of that evaluation, they shall determine whether the product satisfies the conditions set out in Article 4(1)(b), (c), (d) and (e) of Directive 91/414/EEC.
Following that determination Member States shall:
(a)
in the case of a product containing MCPA or MCPB as the only active substance, where necessary, amend or withdraw the authorisation by 30 April 2010 at the latest; or
(b)
in the case of a product containing MCPA or MCPB as one of several active substances, where necessary, amend or withdraw the authorisation by 30 April 2010 or by the date fixed for such an amendment or withdrawal in the respective Directive or Directives which added the relevant substance or substances to Annex I to Directive 91/414/EEC, whichever is the latest.
Article 4
This Directive shall enter into force on 1 May 2006.
Article 5
This Directive is addressed to the Member States.
Done at Brussels, 21 September 2005.
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*****
COUNCIL REGULATION (EEC) No 3754/89
of 7 December 1989
opening, allocating and providing for the administration of a Community tariff quota for prepared or preserved sardines, originating in Morocco (1990)
THE COUNCIL OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Economic Community, and in particular Article 113 thereof,
Having regard to the proposal from the Commission,
Whereas Article 4 of Protocol 1 to the Agreement on relations in the sea fisheries sector between the European Economic Community and the Kingdom of Morocco (1) states that prepared or preserved sardines falling within CN code ex 1604 13 10 or ex 1604 20 50 and originating in Morocco shall be imported duty-free into the Community within the limits of a Community tariff quota of 17 500 tonnes (net weight); whereas, in order to ensure a regular flow to the Community market under this quota, the quantities destined for that market may not exceed 60 % of the total volume of the quota in the first half of the year and may not exceed 35 % in the first quarter of the year; whereas at the end of each of these periods the quantities of the products in question which have been allocated to the Member States and remain unused by the latter should be returned immediately to the Community reserve;
Whereas, within the limits of the tariff quota, Spain and Portugal shall apply the customs duties calculated according to the provisions of Council Regulation (EEC) No 3189/88 of 14 October 1988 laying down the arrangements to be applied by Spain and Portugal to trade with Morocco (2); whereas the Community tariff quota in question should therefore be opened for 1990;
Whereas equal and continuous access to the quota should be ensured for all Community importers and the rate laid down for the quota should be applied consistently to all imports of the products in question into all the Member States until the quota is exhausted;
Whereas the prepared and preserved sardines sector is encountering, in certain regions of the Community, economic constraints of a paticular nature, bearing in mind notably the importance which sardine production may have in the fisheries production structure as a whole, thus justifying the fact that the traditional commercial outlets for producers on external markets and, as a matter of priority, on the Community market, should not be adversely affected; whereas these specific economic circumstances make it necessary to maintain the allocation between the Member States of the quota concerned for the period of application of this Regulation;
Whereas, bearing in mind the way in which trade has developed traditionally, the allocation maintained among Member States should, in order to correspond as closely as possible to the real trend of the market for the products in question, be carried out on a pro rata basis according to the needs of the Member States, calculated on the basis of statistics of imports of the said products from Morocco during a representative reference period and on the economic outlook for the quota periods in question;
Whereas in the last three years the products in question were imported regularly only by certain Member States and not at all or only occasionally by the other Member States; whereas, in these circumstances, in the first phase, initial shares should be allocated to the genuine importing Member States and the other Member States should be guaranteed access to the tariff quota when imports actually take place; whereas these arrangements for allocation will equally ensure the uniform collection of the duties applicable;
Whereas, to allow for the trend of imports of the products concerned in the various Member States, the quota volume should be divided into two parts, the first being allocated among certain Member States and the second held as a reserve to cover any subsequent requirements of Member States which have used up their initial shares and any requirements which might arise in the other Member States; whereas, to afford importers in each Member State some degree of certainty, an appropriate level for the first part of the Community quota would, in the present circumstances, be 60 % of the quota volume, the second part, 40 %, constituting the reserve to which shall also be returned any amounts remaining from the shares allocated when the quota volume was divided up for the first and second quarters of the current year;
Whereas the initial shares may be used up at different rates in each of the periods concerned; whereas, to provide for this eventuality and to avoid any break in the continuity of supplies, any Member State which has
entirely used up its initial share should draw additional shares in quantities corresponding to the period in question; whereas each Member State should effect its drawing whenever each of its additional shares is almost used up, and as many times as the reserve for that period allows; whereas this form of administration requires close cooperation between Member States and the Commission and the latter must be able to monitor the extent to which the quota volume has been used up and to inform the Member States accordingly;
Whereas if, during one of the periods concerned, the Community reserve is almost completely used up, it is essential that Member States return to the reserve the whole of the unused part of their initial shares and any drawings for that period, in order to prevent part of the Community tariff quota remaining unused in one Member State when it could be used in others;
Whereas, since the Kingdom of Belgium, the Kingdom of the Netherlands and the Grand Duchy of Luxembourg are united within and jointly represented by the Benelux Economic Union, any operation concerning the administration of the quota shares allocated to that economic union may be carried out by any one of its members,
HAS ADOPTED THIS REGULATION:
Article 1
From 1 January to 31 December 1990 the customs duty applicable to imports into the Community of the following products, originating in Morocco, shall be suspended at the level indicated and within the limits of a Community tariff quota as shown below:
1.2.3.4.5 // // // // // // Order No // CN code (1) // Descriptions // Volume of tariff quotas (tonnes) // Rate of duty (%) // // // // // // // // // // // 09.1101 // ex 1604 13 10 ex 1604 20 50 // Prepared or preserved sardines of the type Sardina pilchardus // 17 500 (net weight) // 0 // // // // //
(1) Taric codes: 1604 13 10 * 10
1604 20 50 * 11.
Within the limits of this tariff quota, the Kingdom of Spain and the Portuguese Republic shall apply customs duties calculated in accordance with Regulation (EEC) No 3189/88.
Article 2
1. The tariff quota referred to in Article 1 shall be divided into two parts.
2. The first part of the quota, 10 500 tonnes, shall be allocated among certain Member States; the quota shares corresponding to the first quarter, the second quarter and the second half of the year respectively shall be as follows:
1.2,3.4 // // // // Member States // first half year (60 %) // Second half year (40 %) 1.2.3.4 // // first quarter (35 %) // Second quarter (25 %) // // // // // // Benelux // 294 // 210 // 335 // Denmark // 75 // 54 // 86 // Germany // 805 // 574 // 920 // Greece // 64 // 46 // 73 // France // 1 638 // 1 170 // 1 872 // Ireland // 99 // 71 // 113 // Italy // 52 // 37 // 60 // United Kingdom // 648 // 463 // 741 // // // // // // 3 675 // 2 625 // 4 200 // // // //
3. The second part of the quota, 7 000 tonnes, divided into 2 450, 1 750 and 2 800 tonnes corresponding to the first quarter, the second quarter and the second half-year respectively, shall constitute the Community reserve.
4. If the products concerned are presented in the other Member States along with a declaration of entry into free circulation accepted by the customs authorities, the Member State concerned shall inform the Commission and draw a corresponding amount pursuant to Article 3.
5. Without prejudice to the provisions of Article 4, the Member States referred to in paragraph 2 shall return immediately to the reserve any quantity of the quota shares allocated to them when the quota volumes relating to the first and second quarters were divided up which, on 31 March and 30 June 1990 are unused.
Article 3
If a Member State has used its entire initial share as specified in Article 2 (2), or that share less any portion returned to the reserve pursuant to Article 2 (5) or Article 4, the following provisions shall apply. If an importer presents in a Member State a declaration of entry into circulation for a product covered by this Regulation and if this is accepted by the customs authorities, the Member State concerned shall inform the Commission and draw an amount corresponding to its requirements from the reserve referred to in Article 2 (3).
Requests for drawings, with an indication of the date of acceptance of the said declarations, must be transmitted to the Commission without delay.
The drawings shall be granted by the Commission, by reference to the date of acceptance of the declarations of entry into free circulation by the customs authorities of the Member State concerned, to the extent that the available balance so permits.
If a Member State does not use the quantities drawn, it shall return them as soon as possible to the reserve.
if the quantities requested are greater than the available balance of the reserve, allocation shall be made on a basis proportionate to the requests. Member States shall be so informed by the Commission.
Article 4
Once at least 80 % of each portion of the reserve, as defined in Article 2 (3), has been used up, the Commission shall inform the Member States thereof.
It shall also notify Member States in this case of the date from which drawings on the Community reserve must be made according to the provisions laid down in the second and fifth paragraphs of Article 3, if these provisions are not already in effect.
Within a time limit fixed by the Commission as from the date referred to in the first subparagraph of paragraph 2, Member States shall be required to return to the reserve all their initial shares and any drawings which have not been used on that date, within the meaning of Article 6 (3).
Article 5
The Commission shall keep account of the shares opened to Member States pursuant to Articles 2 and 3 and shall inform each Member State of the extent to which the portions of the reserve have been used up as soon as it has been notified.
It shall inform the Member States of the amount of each portion of the reserve following any return of quota shares pursuant to Article 4.
It shall ensure that the drawing which exhausts each portion of the reserve does not exceed the balance available, and to this end shall notify the amount of that balance to the Member State making the final drawing.
Article 6
1. Member States shall take all appropriate measures to ensure that additional drawings of shares pursuant to Article 3 enable imports to be charged without interruption against their accumulated share of the Community tariff quota.
2. Member States shall ensure that importers of the products concerned have free access to the quota shares allocated to them or which they have drawn from the reserve.
3. Member States shall charge imports of the products concerned against their shares as and when the goods are entered with the customs authorities for free circulation.
4. The extent to which a Member State has used up its shares shall be determined on the basis of the imports charged in accordance with paragraph 3.
Article 7
At the request of the Commission, Member States shall inform it of imports actually charged against their quota shares.
Article 8
Member States and the Commission shall cooperate closely to ensure that this Regulation is complied with.
Article 9
This Regulation shall enter into force on 1 January 1990.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 7 December 1989.
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COMMISSION DECISION
of 8 July 2009
exempting exploration for and exploitation of oil and gas in the Netherlands from the application of Directive 2004/17/EC of the European Parliament and of the Council coordinating the procurement procedures of entities operating in the water, energy, transport and postal services sectors
(notified under document number C(2009) 5381)
(Only the Dutch text is authentic)
(Text with EEA relevance)
(2009/546/EC)
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard 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 (1), and in particular Article 30(5) and (6),
Having regard to the request submitted by Nederlandse Aardolie Maatschappij B.V. (hereinafter referred to as NAM) by e-mail of 26 February 2009,
After consulting the Advisory Committee for Public Contracts,
Whereas:
I. FACTS
(1)
By Commission Decision 93/676/EEC (2), contracting entities exploring for or extracting oil or gas in the Netherlands were authorised to apply an alternative regime in place of the normal set of rules provided for under the then applicable Directive. The alternative regime entailed certain statistical obligations and an obligation to observe the principles of non-discrimination and competitive procurement in respect of the award of supplies, works and service contracts, in particular as regards the information which the entity makes available to economic operators concerning its procurement intentions. The effects of that Decision were safeguarded without prejudice to the provisions of Article 30 of Directive 2004/17/EC through its Article 27 of when it replaced the previous Directive.
(2)
On 26 February 2009, NAM transmitted a request pursuant to Article 30(5) of Directive 2004/17/EC to the Commission by e-mail. In accordance with Article 30(5) first subparagraph, the Commission informed the Dutch authorities thereof by letter of 5 March 2009, to which the Dutch authorities answered by e-mail of 26 March 2009. The Commission also requested additional information of NAM by e-mail of 9 March 2009, which was transmitted by NAM by e-mail of 23 March 2009.
(3)
The request submitted by NAM concerns the exploration for and exploitation of oil and gas in the Netherlands. In line with previous Commission Merger Decisions (3), three distinct activities where NAM is active, have been described in the request, namely:
a)
exploration for oil and natural gas;
b)
production of oil; and
c)
production of natural gas.
In accordance with the abovementioned Commission Decisions, ‘production’ will for the purposes of this Decision be taken to include also ‘development’, i.e. the setting up of adequate infrastructure for future production (oil platforms, pipelines, terminals, etc.).
II. LEGAL FRAMEWORK
(4)
Article 30 of Directive 2004/17/EC provides that contracts intended to enable the performance of one of the activities to which Directive 2004/17/EC applies shall not be subject to that Directive if, in the Member State in which it is carried out, the activity is directly exposed to competition on markets to which access is not restricted. Direct exposure to competition is assessed on the basis of objective criteria, taking account of the specific characteristics of the sector concerned. Access is deemed to be unrestricted if the Member State has implemented and applied the relevant Community legislation opening a given sector or a part of it.
(5)
Since the Netherlands have implemented and applied Directive 94/22/EC of the European Parliament and of the Council of 30 May 1994 on the conditions for granting and using authorisations for the prospection, exploration and production of hydrocarbons (4) access to the market should be deemed not to be restricted in accordance with the first subparagraph of Article 30(3) of Directive 2004/17/EC. Direct exposure to competition in a particular market should be evaluated on the basis of various criteria, none of which are, per se, decisive.
(6)
In respect of the markets concerned by this Decision, the market share of the main players on a given market constitutes one criterion which should be taken into account. Another criterion is the degree of concentration on those markets. As the conditions vary for the different activities that are concerned by this Decision, the examination of the competitive situation should take into account the different situations on different markets.
(7)
This Decision is without prejudice to the application of the rules on competition.
III. ASSESSMENT
(8)
Each of the three activities that are the subject of this request (exploration for oil and natural gas, production of oil and production of natural gas) have been considered to constitute separate product markets in the previous Commission Decisions referred to in Recital 3 above. They should therefore be examined separately.
(9)
According to established Commission practice (5), exploration for oil and natural gas constitutes one relevant product market, since it is not possible from the outset to determine whether the exploration will result in finding oil or natural gas. It has furthermore been established through the same, long-standing Commission practice that the geographic scope of that market is worldwide.
(10)
Three ways of measuring the market shares of operators active in exploration can be distinguished: capital expenditure, proven reserves and expected production. Using capital expenditure as a parameter when evaluating the market shares of operators on the exploration market has at times been envisaged (6). It has however been found to be unsuitable, i.a. because of the large differences between the required levels of investments that are necessary in different geographic areas. Thus, larger investments are needed to explore for oil and gas in the North Sea than is the case for exploration in, e.g. the Middle East. Two other parameters have, on the other hand, been applied to assess the market shares of economic operators within this sector, namely, their share of proven reserves and of the expected production. (7)
(11)
As of 31 December 2007, the combined, proven oil and gas reserves amounted to a total of 378,6 billion standard cubic metres oil equivalent (in the following Sm3 o.e.) worldwide, according to the available information (8). As of 1 January 2008, the combined, proven oil and gas reserves in the Netherlands amounted to slightly more than 1 426 billion Sm3 o.e (9), or slightly more than 3,7 ‰. NAM’s share thereof is, even smaller. According to the available information, NAM’s market share would also have to be considered as being negligible if the expected production was used as a yardstick. Thus, while NAM’s actual oil production of 0,04 million barrels of oil per day is expected to rise to 0,06 million barrels a day through the full re-deployment of the Schoonebeek oil-field in Eastern Netherlands, this would, however, have to be seen against a daily, worldwide oil-production of 81 533 million barrels of oil and would therefore be equivalent to a share of approximately 0,7 ‰. Considering also the degree of concentration on the exploration market, which, apart from state-owned companies, is characterised by the presence of three international vertically integrated private players named the super majors (BP, ExxonMobil and Shell) as well as a certain number of so-called ‘majors’, these factors should be taken as an indication of direct exposure to competition.
(12)
According to established Commission practice (10), development and production of (crude) oil is a separate product market whose geographic scope is worldwide. According to the available information (11), the total, daily production of oil worldwide amounted to 81 533 million barrels in 2007. That same year, NAM produced a total of 0,04 million barrels per day, giving it a market share of 0,49 ‰. Considering also the degree of concentration on the market for crude oil production market, which, apart from state-owned companies, is characterised by the presence of three international vertically integrated private players named the super majors (BP, ExxonMobil and Shell), whose respective parts of oil production in 2007 amounted to 3,08 %, 2,32 % and 2,96 %, according to the available information) as well as a certain number of so-called ‘majors’ (12), these factors should be taken as an indication of direct exposure to competition.
(13)
A previous Commission Decision (13) concerning down-stream supply of gas to end-customers has distinguished between Low Calorific Value (LCV) Gas, High Calorific Value (HCV) gas. The Commission has also considered whether Liquefied Natural Gas (LNG) supplies should be distinguished from supplies of piped natural gas (14). However, a subsequent Commission Decision (15) concerning i.a. development and production of natural gas left the question open whether, for the purpose of that Decision, separate markets existed for Low Calorific Value (LCV) Gas, High Calorific Value (HCV) gas and Liquefied Natural Gas (LNG), ‘as the final assessment is not affected regardless of the definition adopted’. For the purpose of this Decision, the question can also be left open for the following reasons:
-
NAM does not produce LNG,
-
NAM operates only in the Netherlands, where the spot market for gas, the so- called Title Transfer Facility, (TTF), no longer makes any distinction between LCV and HCV as of 1 July 2008. Furthermore, since that date Gas Transport Services (the Dutch national gas network manager) has complete control over conversion of quality. It is thus not necessary for shippers to book conversion capacity.
(14)
For the purposes of this Decision, the relevant product market can therefore be left open as being production of natural gas in general, without distinguishing between LCV, HCV and LNG. As far as the geographic market is concerned, previous Commission Decisions (16) have considered that it includes the European Economic Area (EEA) and possibly also Russia and Algeria.
(15)
According to the available information (17), the total gas production in the EU amounted to 191,9 billion Sm3 in 2007 and that of the EEA for the same year to 281,6 billion Sm3. NAM’s production for 2007 amounted to 50 billion Sm3, giving it a market share of 17,76 %. For 2007, productions in Russia and Algeria amounted to respectively 607,4 and 83,0 billion Sm3. The total production for the EEA plus Russia and Algeria therefore amounted to a total of 972 billion Sm3 of which NAM’s share amounted to 5,14 %. Considering also the degree of concentration on the market for natural gas production market, which is characterised by the presence of three super majors (BP, ExxonMobil and Shell) as well as other major players such as the Russian Gazprom, these factors should be taken as an indication of direct exposure to competition.
IV. CONCLUSIONS
(16)
In view of the factors examined in recitals (3) to (15), the condition of direct exposure to competition laid down in Article 30(1) of Directive 2004/17/EC should be considered to be met in the Netherlands in respect of the following services:
a)
exploration for oil and natural gas;
b)
production of oil; and
c)
production of natural gas.
(17)
Since the condition of unrestricted access to the market is deemed to be met, Directive 2004/17/EC should not apply when contracting entities award contracts intended to enable the services listed in points a) to c) of recital (16) to be carried out in the Netherlands, nor when design contests are organised for the pursuit of such an activity in the Netherlands.
(18)
This Decision is based on the legal and factual situation as of February to March 2009 as it appears from the information submitted by NAM and the Kingdom of the Netherlands. It may be revised, should significant changes in the legal or factual situation mean that the conditions for the applicability of Article 30(1) of Directive 2004/17/EC are no longer met,
HAS ADOPTED THIS DECISION:
Article 1
Directive 2004/17/EC shall not apply to contracts awarded by contracting entities and intended to enable the following services to be carried out in the Netherlands:
a)
exploration for oil and natural gas;
b)
production of oil; and
c)
production of natural gas.
Article 2
This Decision is addressed to the Kingdom of the Netherlands.
Done at Brussels, 8 July 2009.
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Commission Decision
of 21 March 2001
approving the Single Programming Document for Community structural assistance under Objective 2 in areas of Styria in Austria
(notified under document number C(2001) 201)
(Only the German text is authentic)
(2002/556/EC)
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Council Regulation (EC) No 1260/1999 of 21 June 1999 laying down general provisions on the Structural Funds(1), and in particular Article 15(5) thereof,
After consulting the Committee on the Development and Conversion of Regions and the Committee pursuant to Article 147 of the Treaty,
Whereas:
(1) Articles 13 et seq. of Title II of Regulation (EC) No 1260/1999 lay down the procedure for preparing and implementing Single Programming Documents.
(2) Article 15(1) and (2) of Regulation (EC) No 1260/1999 provides that, after consultation with the partners referred to in Article 8 of the Regulation, the Member State may submit to the Commission a development plan which is treated as a draft Single Programming Document, and which contains the information referred to in Article 16 of the Regulation.
(3) Under Article 15(5) of Regulation (EC) No 1260/1999, on the basis of the regional development plan submitted by the Member State and within the partnership established in accordance with Article 8 of that Regulation, the Commission is to take a decision on the Single Programming Document, in agreement with the Member State concerned and in accordance with the procedures laid down in Articles 48 to 51.
(4) The Austrian Government submitted to the Commission on 18 April 2000 an acceptable draft Single Programming Document for the areas of Styria fulfilling the conditions for Objective 2 pursuant to Article 4(1) of Regulation (EC) No 1260/1999 and the areas of Styria qualifying for transitional support under Objectives 2 and 5(b) pursuant to Article 6(2) of Regulation (EC) No 1260/1999. The draft contains the information listed in Article 16 of the Regulation, and in particular a description of the priorities selected and an indication of the financial contribution from the European Regional Development Fund (ERDF) and the European Social Fund (ESF).
(5) The date of submission of the draft which was considered acceptable by the Commission constitutes the date from which expenditure under the plan is eligible. Under Article 52(4) of Regulation (EC) No 1260/1999, as an acceptable plan was submitted between 1 January and 30 April 2000, the date from which expenditure under the plan is eligible is 1 January 2000. Under Article 30 of the Regulation, it is necessary to lay down the final date for the eligibility of expenditure.
(6) The Single Programming Document has been drawn up in agreement with the Member State concerned and within the partnership.
(7) The Commission has satisfied itself that the Single Programming Document is in accordance with the principle of additionality.
(8) Under Article 10 of Regulation (EC) No 1260/1999, the Commission and the Member State are required to ensure, in a manner consistent with the principle of partnership, coordination between assistance from the Funds and from the EIB and other existing financial instruments.
(9) The financial contribution from the Community available over the entire period and its year-by-year breakdown are expressed in euro. The annual breakdown should be consistent with the relevant financial perspective. Under Article 7(7) of Regulation (EC) No 1260/1999, the Community contribution has already been indexed at a rate of 2 % per year. Under Article 7(7) and Article 44(2) of the Regulation, the Community contribution may be reviewed at mid-term, and not later than 31 March 2004, to take account of the effective level of inflation and the allocation of the performance reserve.
(10) Provision must be made for adapting the financial allocations of the priorities of this Single Programming Document within certain limits to actual requirements reflected by the pattern of implementation on the ground, in agreement with the Member State concerned,
HAS ADOPTED THIS DECISION:
Article 1
The Single Programming Document for Community structural assistance under Objective 2 to the eligible areas of Styria in Austria and to the areas qualifying for transitional support under Objectives 2 and 5(b) for the period 1 January 2000 to 31 December 2006 is hereby approved.
Article 2
1. In accordance with Article 19 of Regulation (EC) No 1260/1999, the Single Programming Document includes the following elements:
(a) the strategy and priorities for the joint action of the Structural Funds and the Member State; their specific quantified targets; the ex ante evaluation of the expected impact, including on the environmental situation, and the consistency of the priorities with the economic, social and regional policies and the employment strategy of Austria.
The priorities are as follows:
1. promoting the production and service sector;
2. promoting competitive locations and preparing for the information society;
3. promoting the development potential of integrated regional development, tourism and culture;
4. promoting employment and human resources;
5. technical assistance for programme implementation;
(b) a summary description of the measures planned to implement the priorities, including the information needed to check compliance with the State aid rules under Article 87 of the Treaty;
(c) the indicative financing plan specifying for each priority and each year the financial allocation envisaged for the contribution from each Fund, including, for information, the total amount from the EAGGF Guarantee Section and indicating separately the funding planned for the regions receiving transitional support in respect of Objectives 2 and 5(b) and the total amounts of eligible public or equivalent expenditure and estimated private funding in the Member State. The total contribution from the Funds planned for each year for the Single Programming Document is consistent with the relevant financial perspective;
(d) the provisions for implementing the Single Programming Document including designation of the managing authority, a description of the arrangements for managing the Single Programming Document and the use to be made of global grants, a description of the systems for monitoring and evaluation, including the role of the Monitoring Committee and the arrangements for the participation of the partners in that Committee;
(e) the ex ante verification of compliance with additionality and information on the transparency of financial flows;
(f) information on the resources required for preparing, monitoring and evaluating the assistance.
2. The indicative financing plan puts the total cost of the priorities selected for the joint action by the Community and the Member State at EUR 1138969520 for the whole period and the financial contribution from the Structural Funds at EUR 215467000.
The resulting requirement for national resources of EUR 175245613 from the public sector and EUR 748256907 from the private sector can be partly met by Community loans from the European Investment Bank and other lending instruments.
Article 3
1. The total assistance from the Structural Funds granted under the Single Programming Document amounts to EUR 215467000. The procedure for granting the financial assistance, including the financial contribution from the Funds for the various priorities included in the Single Programming Document, is set out in the financing plan annexed to this Decision. Of that amount, EUR 32695000 will be suspended until the Commission adopts the decision to carry over those appropriations pursuant to the first indent of Article 7(2)(a) of the Financial Regulation. To the extent to which the amount whose payment is suspended corresponds to budgetary appropriations which will be available as a result of the carryover decision, the suspension will be lifted when that decision comes into force.
2. The indicative initial estimated breakdown among the Structural Funds of the total Community assistance available is as follows:
- ERDF: EUR 195118606,
- ESF: EUR 20348394.
3. During implementation of the financing plan, the total cost or Community financing of a given priority may be adjusted in agreement with the Member State by up to 25 % of the total Community contribution to the Single Programming Document throughout the programme period, or by up to EUR 30 million, without altering the total Community contribution referred to in paragraph 1.
Article 4
This Decision is without prejudice to the Commission's position on aid schemes falling within Article 87(1) of the Treaty that are included in this assistance and which it has not yet approved. Submission of the application for assistance, the programme complement or a request for payment by the Member State does not replace the notification required by Article 88(3) of the Treaty.
Community financing of State aid falling within Article 87(1) of the Treaty, granted under aid schemes or in individual cases, requires prior approval by the Commission under Article 88(3) of the Treaty, except where the aid falls under the de minimis rule or is exempted under an exemption regulation adopted by the Commission under Council Regulation (EC) No 994/98 of 7 May 1998 on the application of Articles 92 and 93 to certain categories of horizontal aid(2). In the absence of such exemption or approval, aid is illegal and subject to the consequences set out in the procedural regulation for State aid, and its part-financing would be treated as an irregularity within the meaning of Articles 38 and 39 of Regulation (EC) No 1260/1999.
Consequently, the Commission will not accept requests for interim and final payments under Article 32 of the Regulation for measures being part-financed with new or altered aid, as defined in the procedural regulation for State aid, granted under aid schemes or in individual cases, until such aid has been notified to and formally approved by the Commission.
By way of derogation from the preceding paragraphs, Articles 51 and 52 of Council Regulation (EC) No 1257/1999(3) shall apply in the context of rural development part financed by the EAGGF.
Article 5
The date from which expenditure shall be eligible is 1 January 2000. The closing date for the eligibility of expenditure shall be 31 December 2008. This date is extended to 30 April 2009 for expenditure incurred by bodies granting assistance under Article 9(l) of Regulation (EC) No 1260/1999.
Article 6
This Decision is addressed to the Republic of Austria.
Done at Brussels, 21 March 2001.
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COMMISSION REGULATION (EEC) No 2026/93 of 26 July 1993 fixing the maximum moisture content of cereals offered for intervention in certain Member States during the 1993/94 marketing year
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Economic Community,
Having regard to Council Regulation (EEC) No 1766/92 of 30 June 1992 on the common organization of the market in cereals (1), and in particular Article 5,
Whereas Council Regulation (EEC) No 2731/75 of 29 October 1975 fixing standard qualities for common wheat, rye, barley, maize, sorghum and durum wheat (2), as last amended by Regulation (EEC) No 2094/87 (3), in particular fixes a maximum moisture content of 14 % for cereals other than durum wheat; whereas, under Commission Regulation (EEC) No 689/92 of 19 March 1992 fixing the procedure and conditions for the taking over of cereals by intervention agencies (4), as last amended by Regulation (EEC) No 1715/93 (5), a maximum moisture content of 14,5 % was fixed; whereas Article 2 (4) of that Regulation also provides that the Member States may be authorized at their request and under certain conditions to apply a moisture content of 15 % for all cereals;
Whereas certain Member States have submitted requests to that end;
Whereas the measures provided for in this Regulation are in accordance with the opinion of the Management Committee for Cereals,
HAS ADOPTED THIS REGULATION:
Article 1
The Member States listed in the Annex hereto are hereby authorized to fix a maximum moisture content of 15 % for cereals listed therein and offered for intervention during the 1993/94 marketing year.
Article 2
This Regulation shall enter into force on the day of its publication in the Official Journal of the European Communities.
It shall apply from 1 July 1993.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 26 July 1993.
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COMMISSION DIRECTIVE 2006/75/EC
of 11 September 2006
amending Council Directive 91/414/EEC to include dimoxystrobin as active substance
(Text with EEA relevance)
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Council Directive 91/414/EEC of 15 July 1991 concerning the placing of plant protection products on the market (1), and in particular Article 6(1) thereof,
Whereas:
(1)
In accordance with Article 6(2) of Directive 91/414/EEC the United Kingdom received on 28 November 2001 an application from BASF for the inclusion of the active substance dimoxystrobin in Annex I to Directive 91/414/EEC. Commission Decision 2002/593/EC (2) confirmed that the dossier was ‘complete’ in the sense that it could be considered as satisfying, in principle, the data and information requirements of Annexes II and III to Directive 91/414/EEC.
(2)
For this active substance, the effects on human health and the environment have been assessed, in accordance with the provisions of Article 6(2) and (4) of Directive 91/414/EEC, for the uses proposed by the applicants. The designated rapporteur Member State submitted draft assessment report concerning the substance dimoxystrobin to the European Food Safety Authority (EFSA) on 14 August 2003.
(3)
The draft assessment report has been peer reviewed by the Member States and the EFSA within its Working Group Evaluation and presented to the Commission on 10 August 2005 in the format of the EFSA Scientific Report for dimoxystrobin (3). This report has been reviewed by the Member States and the Commission within the Standing Committee on the Food Chain and Animal Health and finalised on 4 April 2006 in the format of the Commission review report for dimoxystrobin.
(4)
It has appeared from the various examinations made that plant protection products containing the active substance concerned may be expected to satisfy, in general, the requirements laid down in Article 5(1)(a) and (b) and Article 5(3) of Directive 91/414/EEC, in particular with regard to the uses which were examined and detailed in the Commission review report. It is therefore appropriate to include dimoxystrobin in Annex I to that Directive, in order to ensure that in all Member States the authorisations of plant protection products containing this active substance may be granted in accordance with the provisions of that Directive.
(5)
Without prejudice to the obligations defined by Directive 91/414/EEC as a consequence of including an active substance in Annex I, Member States should be allowed a period of six months after inclusion to review existing provisional authorisations of plant protection products containing dimoxystrobin to ensure that the requirements laid down by Directive 91/414/EEC, in particular in its Article 13 and the relevant conditions set out in Annex I, are satisfied. Member States should transform existing provisional authorisations into full authorisations, amend them or withdraw them in accordance with the provisions of Directive 91/414/EEC. By derogation from the above deadline, a longer period should be provided for the submission and assessment of the complete Annex III dossier of each plant protection product for each intended use in accordance with the uniform principles laid down in Directive 91/414/EEC.
(6)
It is therefore appropriate to amend Directive 91/414/EEC accordingly.
(7)
The measures provided for in this Directive are in accordance with the opinion of the Standing Committee on the Food Chain and Animal Health,
HAS ADOPTED THIS DIRECTIVE:
Article 1
Annex I to Directive 91/414/EEC is amended as set out in the Annex to this Directive.
Article 2
1. Member States shall adopt and publish by 31 March 2007 at the latest the laws, regulations and administrative provisions necessary to comply with this Directive. They shall forthwith communicate to the Commission the text of those provisions and a correlation table between those provisions and this Directive.
They shall apply those provisions from 1 April 2007.
When Member States adopt those provisions, they shall contain a reference to this Directive or shall be accompanied by such a reference on the occasion of their official publication. Member States shall determine how such reference is to be made.
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.
Article 3
1. Member States shall in accordance with Directive 91/414/EEC, where necessary, amend or withdraw existing authorisations for plant protection products containing dimoxystrobin as active substance by 31 March 2007. By that date, they shall in particular verify that the conditions in Annex I to that Directive relating to dimoxystrobin are met, with the exception of those identified in part B of the entry concerning those active substances, and that the holder of the authorisation has, or has access to, a dossier satisfying the requirements of Annex II to that Directive in accordance with the conditions of Article 13.
2. By way of derogation from paragraph 1, for each authorised plant protection product containing dimoxystrobin as either the only active substance or as one of several active substances all of which were listed in Annex I to Directive 91/414/EEC by 30 September 2006 at the latest, Member States shall re-evaluate the product in accordance with the uniform principles provided for in Annex VI to Directive 91/414/EEC, on the basis of a dossier satisfying the requirements of Annex III to that Directive and taking into account part B of the entry in Annex I to that Directive concerning dimoxystrobin. On the basis of that evaluation, they shall determine whether the product satisfies the conditions set out in Article 4(1)(b), (c), (d) and (e) of Directive 91/414/EEC.
Following that determination Member States shall:
(a)
in the case of a product containing dimoxystrobin as the only active substance, where necessary, amend or withdraw the authorisation by 31 March 2008 at the latest; or
(b)
in the case of a product containing dimoxystrobin as one of several active substances, where necessary, amend or withdraw the authorisation by 31 March 2008 or by the date fixed for such an amendment or withdrawal in the respective Directive or Directives which added the relevant substance or substances to Annex I to Directive 91/414/EEC, whichever is the latest.
Article 4
This Directive shall enter into force on 1 October 2006.
Article 5
This Directive is addressed to the Member States.
Done at Brussels, 11 September 2006.
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COUNCIL DIRECTIVE of 17 December 1974 on the approximation of the laws of the Member States relating to cold-water meters (75/33/EEC)
THE COUNCIL OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Economic Community, and in particular Article 100 thereof;
Having regard to the proposal from the Commission;
Having regard to the Opinion of the European Parliament (1);
Having regard to the Opinion of the Economic and Social Committee (2);
Whereas in the Member States the construction and the methods of control of cold-water meters are subject to mandatory provisions which differ from one Member State to another and consequently hinder trade in such instruments ; whereas it is therefore necessary to approximate these provisions;
Whereas Council Directive No 71/316/EEC (3) of 26 July 1971 on the approximation of the laws of the Member States relating to common provisions for both measuring instruments and methods of metrological control, as amended by the Act of Accession (4), laid down the EEC pattern approval and EEC initial verification procedures ; whereas, in accordance with that Directive, the technical requirements for the design and functioning of cold-water meters should be laid down ; whereas such requirements must be met, and the controls must be carried out, and the appropriate signs and marks affixed, before these instruments can be freely imported, marketed and used,
HAS ADOPTED THIS DIRECTIVE:
Article 1
This Directive shall apply to cold-water meters, which are integrating measuring instruments for continuously determining the volume of water (and no other liquid) passing through them, and which comprise a measuring device linked to an indicating device. Water shall be considered to be "cold" when its temperature is in the range 0º to 30º C.
Article 2
Cold-water meters which may bear the EEC marks and signs are described in the Annex to this Directive. They shall be subject to EEC pattern approval and submitted to EEC initial verification.
Article 3
No Member State may refuse, prohibit or restrict the placing on the market or entry into service of (1)OJ No C 2, 9.1.1974, p. 62. (2)OJ No C 8, 31.1.1974, p. 6. (3)OJ No L 202, 6.9.1971, p. 1. (4)OJ No L 73, 27.3.1972, p. 14. cold-water meters bearing the EEC pattern approval symbol and the EEC initial verification mark, on the grounds of their metrological properties.
Article 4
1. Member States shall put into force the laws, regulations and administrative provisions needed in order to comply with this Directive within 18 months of its notification and shall forthwith inform the Commission thereof.
2. Member States shall ensure that the texts of the main provisions of national law which they adopt in the field covered by this Directive are communicated to the Commission.
Article 5
This Directive is addressed to the Member States.
Done at Brussels, 17 December 1974.
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COUNCIL REGULATION (EEC) N° 2462/87
of 4 August 1987
on the application of Decision N° 1/87 of the EEC-Norway Joint Committee modifying the limits expressed in ECU in Article 8 of Protocol 3 concerning the definition of the concept of originating products and methods of administrative cooperation
THE COUNCIL OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Economic Community, and in particular Article 113 thereof,
Having regard to the proposal from the Commission,
Whereas the Agreement between the European Economic Community and the Kingdom of Norway (1), signed on 14 May 1973, entered into force on 1 July 1973;
Whereas, by virtue of Article 28 of Protocol 3 concerning the definition of the concept of originating products and methods of administrative cooperation, which forms an integral part of the said Agreement, the Joint Committee adopted Decision N° 1/87 further amending Article 8 of that Protocol;
Whereas it is necessary to apply that Decision in the Community,
HAS ADOPTED THIS REGULATION:
Article 1
Decision N° 1/87 of the EEC-Norway Joint Committee shall apply in the Community.
The text of the Decision is attached to this Regulation.
Article 2
This Regulation shall enter into force on the third day following its publication in the Official Journal of the European Communities.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 4 August 1987.
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COMMISSION REGULATION (EC) No 905/2005
of 16 June 2005
determining for the 2004/2005 marketing year actual production of unginned cotton and the ensuing guide price reduction
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to the Act of Accession of Greece, and in particular Protocol 4 on cotton (1),
Having regard to Council Regulation (EC) No 1051/2001 of 22 May 2001 on production aid for cotton (2), and in particular the third indent of Article 19(2) thereof,
Whereas:
(1)
The first subparagraph of Article 16(3) of Commission Regulation (EC) No 1591/2001 of 2 August 2001 laying down detailed rules for applying the cotton aid scheme (3) provides that actual production in each marketing year and the reduction in the guide price referred to in Article 7 of Regulation (EC) No 1051/2001 are to be established before 15 June of that year.
(2)
The second subparagraph of Article 16(3) of Regulation (EC) No 1591/2001 states the terms on which the quantity of unginned cotton produced is to be reckoned as the actual production.
(3)
The Greek authorities, using fibre yield as a quality criterion, have recognised 1 135 534 tonnes of unginned cotton as eligible for aid.
(4)
The Greek authorities have informed the Commission that on 15 May 2005 they did not recognise as eligible for aid 34 142 tonnes of unginned cotton consisting of 6 172 tonnes from 2 364,9 hectares not declared in line with Article 9 of Regulation (EC) No 1591/2001, 22 746 tonnes in respect of which national area reduction measures under Article 17(3) of Regulation (EC) No 1051/2001 were disregarded, 3 580 tonnes which were not of sound and fair merchantable quality in accordance with Article 15(1) of that Regulation, and 1 644 tonnes from 2 040 hectares from areas in respect of which financial compensation was paid to the growers on account of damage due to natural causes.
(5)
Exclusion from actual production of the abovementioned 1 644 tonnes of unginned cotton is not justified. This quantity comes from parcels declared under Article 9 of Regulation (EC) No 1591/2001 and was actually delivered to the ginning plants. The very low yield in tonnes of unginned cotton of the parcels affected by the damage is an important indication that the parcels nevertheless generated some produce. Therefore, that quantity meets the criteria laid down in the second subparagraph of Article 16(3) of Regulation (EC) No 1591/2001 and must accordingly be added to the quantity of 1 135 534 tonnes.
(6)
In consequence, actual Greek production of unginned cotton for the 2004/2005 marketing year must be considered to total 1 137 229 tonnes.
(7)
The Spanish authorities, using fibre yield as a quality criterion, have recognised 368 084 tonnes of unginned cotton as eligible for aid.
(8)
The Spanish authorities have informed the Commission that on 15 May 2005 they did not recognise as eligible for aid 1 638 tonnes of unginned cotton consisting of 1 612 tonnes in respect of which national area reduction measures under Article 17(3) of Regulation (EC) No 1051/2001 were disregarded, six tonnes that were not of sound and fair merchantable quality in accordance with Article 15(1) of that Regulation, seven tonnes that were not declared in accordance with Article 9 of Regulation (EC) No 1591/2001, and 13 tonnes because the rules concerning contracts referred to in Article 11 of Regulation (EC) No 1051/2001 were not complied with.
(9)
Exclusion from actual production of the abovementioned 13 tonnes of unginned cotton on account of non-compliance with the rules concerning contracts is not justified. Moreover, this quantity meets the requirements of the second subparagraph of Article 16(3) of Regulation (EC) No 1591/2001 and must therefore be added to the quantity of 368 084 tonnes.
(10)
In consequence, by application of fibre yield as a quality criterion actual Spanish production of unginned cotton in the 2004/2005 marketing year must be considered to total 368 097 tonnes.
(11)
The Spanish authorities, using fibre yield as a quality criterion, have recognised 982 tonnes of unginned cotton from crop areas in Portugal as eligible for aid. This quantity meets the requirements of the second subparagraph of Article 16(3) of Regulation (EC) No 1591/2001 and must accordingly be regarded as actual Portuguese production of unginned cotton for the 2004/2005 marketing year.
(12)
Article 7(2) of Regulation (EC) No 1051/2001 provides that if the sum of the actual production determined for Spain and Greece exceeds 1 031 000 tonnes the guide price indicated in Article 3(1) of that Regulation is to be reduced in any Member State where actual production exceeds the guaranteed national quantity.
(13)
Moreover, if the sum of actual production in Spain and Greece reduced by 1 031 000 tonnes is higher than 469 000 tonnes, the reduction in the guide price of 50 % increases gradually in accordance with the rules laid down in the second subparagraph of Article 7(4) of Regulation (EC) No 1051/2001.
(14)
For the 2004/05 marketing year the guaranteed national quantity is exceeded in both Spain and Greece. Actual production in Spain is in the second step of 4. 830 tonnes above its guaranteed national quantity increased by 113 000 tonnes. As a result, the guide price reduction in Spain should be 54 %. In the case of Greece, actual production is below its guaranteed national quantity increased by 356 000 tonnes. As a result, the guide price reduction in Greece should be 50 %.
(15)
The measures provided for in this Regulation are in accordance with the opinion of the Management Committee for Natural Fibres,
HAS ADOPTED THIS REGULATION:
Article 1
1. For the 2004/2005 marketing year actual production of unginned cotton is hereby determined as:
-
1 137 229 tonnes for Greece,
-
368 097 tonnes for Spain,
-
982 tonnes for Portugal.
2. The amount by which the guide price is to be reduced for the 2004/2005 marketing year shall be:
-
Greece: EUR 24,130 per 100 kg of unginned cotton,
-
Spain: EUR 27,425 per 100 kg of unginned cotton,
-
Portugal: EUR 0 per 100 kg of unginned cotton.
Article 2
This Regulation shall enter into force on the day following that of its publication in the Official Journal of the European Union.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 16 June 2005.
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Commission Regulation (EC) No 2350/2002
of 20 December 2002
fixing the amount of private storage aid for certain fishery products in the 2003 fishing year
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Council Regulation (EC) No 104/2000 of 17 December 1999 on the common organisation of the markets in fishery and aquaculture products(1),
Having regard to Commission Regulation (EC) No 2813/2000 of 21 December 2000 laying down detailed rules for the application of Council Regulation (EC) No 104/2000 as regards the grant of private storage aid for certain fishery products(2), and in particular Article 1 thereof,
Whereas:
(1) The aid must not exceed the sum of technical and financial costs recorded in the Community during the fishing year preceding the year in question.
(2) To discourage long-term storage, to shorten payment times and to reduce the burden of controls, private storage aid should be paid in one instalment only.
(3) The measures provided for in this Regulation are in accordance with the Management Committee for Fishery Products,
HAS ADOPTED THIS REGULATION:
Article 1
For the 2003 fishing year the amount of private storage aid for the products listed in Annex II to Regulation (EC) No 104/2000 shall be as follows:
- first month: EUR 185/tonne,
- second month: EUR 0/tonne.
Article 2
This Regulation shall enter into force on 1 January 2003.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 20 December 2002.
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COMMISSION DECISION of 14 April 1980 refusing to accept the scientific character of the apparatus described as "Collins General Purpose HF Receiver, model 651S-1" and "Collins Transmitter, model HF 8130A" (80/469/EEC)
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Economic Community,
Having regard to Council Regulation (EEC) No 1798/75 of 10 July 1975 on the importation free of Common Customs Tariff duties of educational, scientific and cultural materials (1), as amended by Regulation (EEC) No 1027/79 (2),
Having regard to Commission Regulation (EEC) No 2784/79 of 12 December 1979 laying down provisions for the implementation of Regulation (EEC) No 1798/75 (3), and in particular Article 7 thereof,
Whereas, by letter dated 9 October 1979, the Italian Government requested the Commission to invoke the procedure at present laid down in Article 7 of Regulation (EEC) No 2784/79 in order to determine whether or not the apparatus described as "Collins General Purpose HF Receiver, model 651S-1", and "Collins Transmitter, model HF 8130A", intended for use in connection with stratosperic experiments in telemetry stations, should be considered as a scientific apparatus and, where the reply is in the affirmative, whether apparatus of equivalent scientific value is currently being manufactured in the Community;
Whereas, in accordance with the provisions of Article 7 (5) of Regulation (EEC) No 2784/79, a group of experts composed of representatives of all the Member States met on 26 February 1980 within the Committee on Duty-Free Arrangements to examine this particular case;
Whereas this examination showed that the apparatus in question consists of a high-frequency receiver and a high-frequency transmitter ; whereas it does not possess the requisite objective characteristics making it specifically suited to scientific research ; whereas apparatus of the same kind is principally used for the realization of non-scientific activities ; whereas the use of the said apparatus in the case in question could not alone confer upon it the character of scientific apparatus ; whereas it therefore cannot be regarded as scientific apparatus,
HAS ADOPTED THIS DECISION:
Article 1
The apparatus described as "Collins General Purpose HF Receiver, model 651S-1", and "Collins Transmitter, model HF 8130A", is not considered to be a scientific apparatus.
Article 2
This Decision is addressed to the Member States.
Done at Brussels, 14 April 1980.
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COMMISSION REGULATION (EC) No 1416/2006
of 26 September 2006
laying down specific rules on the implementation of Article 7(2) of the Agreement between the European Community and the United States of America on trade in wine concerning the protection of US names of origin in the Community
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Council Decision 2006/232/EC of 20 December 2005 on the conclusion of the Agreement between the European Community and the United States of America on trade in wine (1), and in particular Article 3 thereof,
Whereas:
(1)
In accordance with Article 7(2) of the Agreement between the European Community and the United States of America on trade in wine (2) (hereinafter referred to as ‘the Agreement’), the Community shall provide that the names of viticultural significance listed in Annex V of the Agreement may be used as names of origin for wine only to designate wines of the origin indicated by such name.
(2)
This Regulation should not affect existing intellectual property rights existing in the Community.
(3)
Therefore, the protection in the Community of US names of origin as provided for by the Agreement and in particular by Article 7(2) and (3) in conjunction with Article 12 thereof should be foreseen.
(4)
The Agreement entered into force on 10 March 2006 (3). This Regulation should therefore enter into force on the day of its publication in the Official Journal of the European Union.
(5)
The measures provided for in this Regulation are in accordance with the opinion of the Management Committee for Wine,
HAS ADOPTED THIS REGULATION:
Article 1
1. The US names of origin listed in the Annex may be used as names of origin for wine only to designate wines of the origin indicated by such name. The competent authorities of the Member States shall take measures to ensure that any wine not labelled in conformity with this Article is not placed on or is withdrawn from the market until it is labelled in conformity with this Article.
2. Paragraph 1 shall not:
(a)
affect intellectual property rights existing in the Community or the use of the sign protected as an intellectual property right in the course of trade in the Community before the date of entry into force of this Regulation;
(b)
prevent measures, as appropriate, to allow the use of homonymous names of origin where consumers will not be misled or to allow a person to use, in the course of trade, that person’s name or the name of that person’s predecessor in business in a manner that does not mislead the consumer.
Article 2
This Regulation shall enter into force on the day of its publication in the Official Journal of the European Union.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 26 September 2006.
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Commission Regulation (EC) No 2152/2001
of 31 October 2001
amending Regulation (EC) No 2815/98 concerning marketing standards for olive oil
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Council Regulation (EC) No 136/66/EEC of 22 September 1966 on the common on organisation of the market in oils and fats(1), as last amended by Regulation (EC) No 1513/2001(2), and in particular Article 35a thereof,
Whereas:
(1) Commission Regulation (EC) No 2815/98 of 22 December 1998 concerning marketing standards for olive oil(3), as amended by Regulation (EC) No 640/1999(4), stipulates that the designation of origin of extra virgin and virgin olive oils other than those benefiting from a protected designation of origin or from a protected geographical indication in accordance with Council Regulation (EEC) No 2081/92 of 14 July 1992 on the protection of geographical indications and designations of origin for agricultural products and foodstuffs(5), as last amended by Commission Regulation (EC) No 2796/2000(6), is to correspond to the geographical area in which the oil was obtained which, in most cases, is the same area as that in which the oil was extracted from the olives by a mill located in that area. However, in some cases the area in which the olives are harvested is different from that in which the oil is extracted and that information relating to the designation of origin should be indicated on packaging intended for consumers in the Member States or on labels linked to that packaging so as not to mislead consumers.
(2) The current system relating to olive oil marketing standards expires on 31 October 2001. It should be continued for a fixed period so that more comprehensive marketing standards can be established for the sector.
(3) The measures provided for in this Regulation are in accordance with the opinion of the Management Committee for Oils and Fats,
HAS ADOPTED THIS REGULATION:
Article 1
Regulation (EC) No 2815/98 is amended as follows:
1. In Article 1, the final sentence of the first paragraph is replaced by the following: "If that option is taken up by an operator designation of the origin shall be authorised solely in the cases provided for and in accordance with the provisions of this Regulation."
2. Article 3(2) is replaced by the following: "2. The designation of origin, where this indicates the European Community or a Member State, in cases other than those referred to in paragraph 1, shall correspond to the geographical area in which the olives concerned or the oil extracted from the olives were obtained. For the purposes of this Regulation, an extra virgin or a virgin olive oil shall be deemed to have been obtained in the geographical area, within the meaning of this subparagraph, where the mill in which the oil was extracted from the olives is located.
In the case of olives harvested in a Member State or a third country different from the geographical area in which the oil from those olives was obtained, the designation of origin shall indicate both the area where the olives were harvested and the area where the oil was obtained, using the following wording: '(Extra) virgin olive oil obtained in (name of the European Community or of the member State concerned) from olives harvested in (name of the European Community, the Member State or the country concerned)'.
3. In the case of blends of 'extra virgin olive oils' or 'virgin olive oils' in which more than 75 % originates, for the purposes of the first subparagraph of paragraph 2, in the same Member State or in the Community, the main origin may be designated provided that it is followed by the indication 'section of (extra) virgin olive oils more than (75 %) of which originated in ... (designation of origin)'."
3. In Article 2, paragraph 3 becomes paragraph 4.
4. In Article 4(2), the following subparagraph is added: "Establishments approved pursuant to this Regulation which meet the approval conditions laid down for the 2000/01 marketing year may continue to be regarded as approved."
5. In Article 7, "31 October 2001" is replaced by "30 June 2002".
Article 2
This Regulation shall enter into force on 1 November 2001.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 31 October 2001.
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COMMISSION DECISION of 22 July 1996 amending Decision 94/984/EC laying down animal health conditions and veterinary certificates for the importation of fresh poultrymeat from third countries (Text with EEA relevance) (96/456/EC)
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Council Directive 91/494/EEC of 26 June 1991 on animal health conditions governing intra-Comunity trade in and imports from third countries of fresh poultrymeat (1), as last amended by Directive 93/121/EC (2) and in particular Article 11 (1) thereof,
Whereas Commission Decision 94/984/EC (3), as last amended by Decision 96/298/EC (4), established the animal health conditions and the veterinary certificates for imports of fresh poultrymeat from third countries;
Whereas information received from Israel has shown that this country will comply, from 1 October 1996 with the requirements of model A in respect of all categories of poultrymeat; whereas, it is therefore possible to amend Decision 94/984/EC accordingly;
Whereas it is also necessary to review the provisions relating to China, following an on-the-spot inspection carried out by the Commission services; whereas this inspection revealed that certification provided was inaccurate and inadequate; whereas a certain delay should be provided for this suspension to come into force to enable the competent authorities in the Member States to implement this Decision and to allow importation of consignments shipped before the date of entry into force of this Decision;
Whereas the measures provided for in this Decision are in accordance with the opinion of the Standing Veterinary Committee,
HAS ADOPTED THIS DECISION:
Article 1
In Annex I of Commission Decision 94/984/EC,
(a) footnote 3 is replaced by the following:
'(3) Importation suspended as from 1 August 1996`;
(b) from 1 October 1996, in the line referring to Israel, footnote (4) is deleted;
(c) from 1 October 1996, footnote (4) is replaced by the following:
'(4) Goose and duck liver only`.
Article 2
This Decision shall apply from 1 August 1996.
However, for a period of 60 days following the day of application of this Decision, the Member States shall authorize the importation of fresh poultry meat from China which was produced and certified in accordance with the provisions in force before that day.
Article 3
This Decision is addressed to the Member States.
Done at Brussels, 22 July 1996.
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COMMISSION DECISION of 9 November 1992 approving the programmes concerning bonamiosis and marteiliosis submitted by the United Kingdom (92/528/EEC)
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Economic Community,
Having regard to Council Directive 91/67/EEC governing the placing on the market of aquaculture animals and products (1), and in particular Article 10 thereof,
Whereas Member States may submit to the Commission a programme designed to enable them, with regard to certain diseases affecting molluscs, to obtain the status of approved zone;
Whereas the United Kingdom, by letters dated 26 May 1992 and 31 July 1992 respectively, has submitted two programmes concerning bonamiosis and marteiliosis for Great Britain and Northern Ireland;
Whereas these programmes specify the geographical zones concerned, the measures to be taken by the official services, the procedures to be followed by the approved laboratories, the prevalence of the disease concerned and the measures to combat these diseases where detected;
Whereas these programmes, after scrutiny, appear to be in conformity with the requirements laid down in Article 10 of Council Directive 91/67/EEC;
Whereas, in accordance with Article 10, paragraph 2 of the said Directive 91/67/EEC, the introduction of aquaculture animals and products into the zones referred to in these programmes shall be subject to the rules set out in Articles 7 and 8 of the said Directive;
Whereas the measures provided for in this Decision are in accordance with the opinion of the Standing Veterinary Committee,
HAS ADOPTED THIS DECISION:
Article 1
The programme concerning bonamiosis and marteiliosis for Great Britain, submitted by the United Kingdom, is hereby approved.
Article 2
The programme concerning bonamiosis and marteiliosis for Northern Ireland, submitted by the United Kingdom, is hereby approved.
Article 3
The United Kingdom shall bring into force the laws, regulations and administrative provisions necessary to comply with the programmes referred to in Articles 1 and 2 by 1 January 1993.
Article 4
This Decision is addressed to the United Kingdom. Done at Brussels, 9 November 1992.
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COMMISSION REGULATION (EEC) No 105/89 of 17 January 1989 on the supply of refined rape seed oil to Bangladesh as food aid
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Economic Community,
Having regard to Council Regulation (EEC) No 3972/86 of 22 December 1986 on food-aid policy and food-aid management (1), as last amended by Council Regulation (EEC) No 1870/88 (2), and in particular Article 6 (1) (c) thereof,
Whereas Council Regulation (EEC) No 1420/87 of 21 May 1987 laying down implementing rules for Regulation (EEC) No 3972/86 on food-aid policy and food-aid management (3) lays down the list of countries and organizations eligible for food-aid operations and specifies the general criteria on the transport of food aid beyond the fob stage;
Whereas, by its Decision of 15 September 1988 on the supply of food aid to Bangladesh the Commission allocated to this country 1 800 tonnes of refined rape seed oil;
Whereas it is necessary to provide for the carrying-out of this measure in accordance with the rules laid down by Commission Regulation (EEC) No 2200/87 of 8 July 1987 laying down general rules for the mobilization in the Community of products to be supplied as Community food aid (4); whereas it is necessary to specify the time limits and conditions of supply and the procedure to be followed to determine the resultant costs,
HAS ADOPTED THIS REGULATION:
Article 1 A tendering procedure is hereby initiated for the award of a contract for the supply of refined rape seed oil to Bangladesh in accordance with the provisions of Regulation (EEC) No 2200/87 and with the conditions laid down in the Annex hereto.
Article 2 This Regulation shall enter into force on the day following its publication in the Official Journal of the European Communities.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 17 January 1989.
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*****
COMMISSION REGULATION (EEC) No 98/89
of 17 January 1989
amending Regulation (EEC) No 3061/84 laying down detailed rules for the application of the system of production aid for olive oil
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Economic Community,
Having regard to Council Regulation No 136/66/EEC of 22 September 1966 on the establishment of a common organization of the market in oils and fats (1), as last amended by Regulation (EEC) No 2210/88 (2), and in particular Article 5 (5) thereof,
Whereas olive growers may have olives pressed in a Member State other than that in which they are produced; whereas, in order to ensure proper application of the system of aid, provision should be made for administrative cooperation between the Member State in which the oil was obtained and that in which the olives originated; whereas, in order to ensure effective control of the processing of the olives, the grant of aid should be made conditional on their being pressed at an approved mill;
Whereas the determination of the olive yields and oil yields for the 1987/88 marketing year has been delayed, whereas the time limit for the submission of aid applications for that year should therefore be extended;
Whereas experience has shown that some olive growers who are members of producers' organizations are not interested in the system of production aid; whereas, with a view to the proper application of the system of financing the associations, these growers should be ignored for the purposes of the calculation of such financing;
Whereas technical and health rules are needed to prevent the contamination of olive oil; whereas, to this end, approval of olive mills should be made conditional on compliance with regulations guaranteeing the quality of the product;
Whereas, in determining the number of olive growers to be verified, who are not members of producers' organizations, the fact that the register of olive cultivation is being introduced only gradually in the Member States should be allowed for;
Whereas Commission Regulation (EEC) No 3061/84 (3), as last amended by Regulation (EEC) No 1337/88 (4), provides that, where there is doubt as to the quantity actually produced, the Member State concerned is to determine the quantity eligible for aid on the basis of the production potential and standard olive yields and oil yields; whereas, in certain cases where irregularities have been discovered, it has been found that the quantity determined on a standard basis exceeded the quantity in respect of which the aid had been applied for; whereas, to prevent certain growers from being paid too much aid it should be laid down that the quantity eligible for aid may not under any circumstances exceed the quantity in respect of which aid has been applied for;
Whereas experience has shown that the computerized files established by certain Member States do not serve the purpose for which they were intended; whereas, to remedy the situation, the minimum characteristics of those files should be defined more clearly; whereas, in view of the adjustments to be made, extra time should be allowed for completing the files;
Whereas, in the interests of sound administration, detailed rules should be laid down for the calculation of the quantity for which aid is to be granted, both to producers who are paid on a standard basis and to those who are paid in relation to the quantity actually produced; whereas time limits for the payment of the aid should also be fixed;
Whereas the measures provided for in this Regulation are in accordance with the opinion of the Management Committee for Oils and Fats,
HAS ADOPTED THIS REGULATION:
Article 1
Regulation (EEC) No 3061/84 is hereby amended as follows:
1. The following paragraph 6 is added to Article 1:
'6. Where all or part of the production of an olive grower is pressed in an approved mill located in a Member State other than that in which the olives were harvested, the aid application shall be submitted to the competent agency of the Member State where the oil was produced. In such a case, the latter Member State shall, after having checked the records of the mill concerned, transmit to the Member State of origin of the olives the aid application and the information concerning the check at the mill. The Member State responsible for payment, after having verified that all the requirements for the grant of the aid are met, shall pay the production aid.'
2. The following subparagraph is added to Article 5 (4):
'However, for the 1987/88 marketing year, aid applications may be submitted up to 20 January 1989.'
3. The following subparagraph is inserted in Article 8 (1) after point b:
'In order to determine the number of members of producers' organizations to be taken into consideration for the purposes of the application of point (a), account shall be taken only of members who have submitted an application to the organization during the period extending over the current and the three previous marketing years.'
4. The following sentence is added to Article 9 (1):
'For the purposes of the approval of mills, Member States shall check observance of the requirements necessary for ensuring that the oil is of proper quality and particularly that it is not contaminated by undesirable substances such as solvents.'
5. Article 10 (2) is replaced by the following:
'2. The checks referred to in Article 14 (4) of Regulation (EEC) No 2261/84 shall apply to the following percentage of the olive growers who are not members of producers' organizations:
- 1 % in the zones where the basic data contained in the register of olive cultivation, provided for in Commission Regulation (EEC) No 2276/79 (*), are available;
- 4 % in the other zones.
Priority must be given to checks on olive growers who have made substantial changes in their production potential.
(*) OJ No L 262, 18. 10. 1979, p. 11.'
6. The following Article 10a is added:
'Article 10a
Where Article 15 (3) of Regulation (EEC) No 2261/84 applies, the quantity of oil eligible for aid belonging to an olive grower who has had all or part of his production of olives pressed by the mill concerned shall not exceed the quantity in respect of which an aid application has been submitted.'
7. Article 11 is replaced by the following:
'Article 11
1. Producer Member States shall establish the computerized files referred to in Article 16 of Regulation (EEC) No 2261/84 within the time limits and in accordance with the requirements set out below.
Member States shall enter in the files the basic data contained in the register of olive cultivation, as soon as such data become available. Corrections to the basic data shall also be transferred as soon as they become available.
2. All the components of the computerized files must be operational before 31 October 1990. Moreover, Member States shall use the data for the checks as and when the specific files are established.
Producer Member States shall enter in the file the data concerning each marketing year as listed in Article 16 of Regulation (EEC) No 2261/84, as soon as such data become available.
3. The computerized file must satisfy at least the following requirements:
- have sufficient memory capacity for storing in real time all the data relating to the current marketing year plus the four previous marketing years. Provision must be made for storing archive material covering the three marketing years preceding these four,
- allow real-time access to the basic data and production data concerning a plot, a basic administrative unit, an olive grower, a producers' organization or a mill. The identification codes for olive growers and mills must be permanent.
4. Member States shall send the Commission half-yearly reports on the progress of the work on establishment of the files.
Commission staff may make on-the-spot checks on the progress of the work and on the functioning and effectiveness of the system.'
8. In Article 12 (2), point (e) is replaced by the following:
'(e) the average production of virgin olive oil per 100 kilograms of olives.'
9. The following Articles 12a and 12b are added:
'Article 12a
1. For each olive grower, the quantity eligible for aid shall be equal:
- in the case of producers for whom the aid is granted on a standard basis in accordance with the second indent of Article 5 (2) of Regulation No 136/66/EEC, to the quantity of oil resulting from the application of the second subparagraph of Article 2 (4) of Regulation (EEC) No 2261/84 increased to the extent provided for in Article 13 of this Regulation, - in the case of producers belonging to an organization to whom the aid is granted in relation to the quantity actually produced in accordance with the first indent of Article 5 (2) of Regulation No 136/66/EEC, the quantity of virgin oil actually produced, increased to the extent provided for in Article 13 of this Regulation. However, in the cases specified in Articles 7 and 15 of Regulation (EEC) No 2261/84 the quantity eligible for aid shall be determined by the Member State in accordance with the provisions of those Articles.
2. For the purposes of determining the quantity actually produced referred to in paragraph 1, the intervention agency, if any, responsible for paying the aid shall take account in particular of:
- the basic data contained in the register of olive cultivation concerning production potential. In areas not yet covered by the register the information used shall be that contained in the crop declaration referred to in Article 3 of Regulation (EEC) No 2261/84 and, where appropriate, the results of the checks carried out,
- the data contained in the computerized files relating to the production situation and the results of the checks carried out pursuant to Regulation (EEC) No 2261/84 for the marketing year concerned.
3. For the purposes of fixing the actual production referred to in Article 17a (2) of Regulation (EEC) No 2261/84 the Member States concerned shall inform the Commission, not later than 31 March following each marketing year, of the quantity on which aid has been granted in each Member State.
Article 12b
1. After fixing the olive and oil yields Member States shall pay the production aid to producers whose average output is lower than the quantity referred to in the second indent of Article 5 (2) of Regulation No 136/66/EEC within 90 days of submission of the particulars provided for in Article 3 (6) of Regulation (EEC) No 2261/84.
2. Member States shall pay the production aid to producers whose average output is higher than the quantity referred to in the first indent of Article 5 (2) of Regulation No 136/66/EEC within 90 days of the determination by the Commission of the actual production for the marketing year concerned and of the unit amount of the production aid provided for in Article 17a (2) of Regulation (EEC) No 2261/84.'
Article 2
This Regulation shall enter into force on the day of its publication in the Official Journal of the European Communities.
Point 2 in Article 1 shall, however, apply with effect from 1 November 1988.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 17 January 1989.
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DIRECTIVE 2005/75/EC OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL
of 16 November 2005
correcting Directive 2004/18/EC on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts
THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION,
Having regard to the Treaty establishing the European Community, and in particular Article 47(2) and Articles 55 and 95 thereof,
Having regard to the proposal from the Commission,
Having regard to the opinion of the European Economic and Social Committee (1), After consulting the Committee of the Regions,
After consulting the Committee of the Regions,
Acting in accordance with the procedure laid down in Article 251 of the Treaty (2),
Whereas:
(1)
The threshold applying to contracts for certain services subsidised by more than 50 % should remain aligned with the threshold applying to service contracts awarded by contracting authorities other than central governmental authorities, as had been intended to be provided for with the adoption of Directive 2004/18/EC of the European Parliament and of the Council of 31 March 2004 on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts (3).
(2)
This alignment should also be guaranteed within the framework of the revision of the thresholds provided for in Article 78 of Directive 2004/18/EC.
(3)
Owing to a clerical error, Article 78 of Directive 2004/18/EC does not currently guarantee the desired alignment. Points (b) and (c) of Article 78(2) should therefore be corrected by moving the reference to point (b) of the first paragraph of Article 8 from Article 78(2)(b) to Article 78(2)(c),
HAVE ADOPTED THIS DIRECTIVE:
Article 1
In Article 78(2) of Directive 2004/18/EC, points (b) and (c) shall be replaced by the following:
‘(b)
the threshold established in Article 67(1)(a) on the revised threshold applying to public service contracts awarded by the contracting authorities referred to in Annex IV;
(c)
the thresholds established in (b) of the first subparagraph of Article 8 and in Article 67(1)(b) and (c) on the revised threshold applying to public service contracts awarded by contracting authorities other than those referred to in Annex IV.’
Article 2
Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive by 31 January 2006.
When Member States adopt these measures, they shall contain a reference to this Directive or shall be accompanied by such reference on the occasion of their official publication. The methods of making such reference shall be laid down by Member States.
Article 3
This Directive shall enter into force on the day of its publication in the Official Journal of the European Union.
Article 4
This Directive is addressed to the Member States.
Done at Strasbourg, 16 November 2005.
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Commission Regulation (EC) No 136/2002
of 25 January 2002
suspending the buying-in of butter in certain Member States
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Council Regulation (EC) No 1255/1999 of 17 May 1999 on the common organisation of the market in milk and milk products(1), as last amended by Regulation (EC) No 1670/2000(2),
Having regard to Commission Regulation (EC) No 2771/1999 of 16 December 1999 laying down detailed rules for the application of Council Regulation (EC) No 1255/1999 as regards intervention on the market in butter and cream(3), as last amended by Regulation (EC) No 1614/2001(4), and in particular Article 2 thereof,
Whereas:
(1) Article 2 of Regulation (EC) No 2771/1999 lays down that buying-in by invitation to tender is to be opened or suspended by the Commission in a Member State, as appropriate, once it is observed that, for two weeks in succession, the market price in that Member State is below or equal to or above 92 % of the intervention price.
(2) Commission Regulation (EC) No 10/2002 suspending the buying-in of butter in certain Member States(5) establishes the most recent list of Member States in which intervention is suspended. This list must be adjusted as a result of the market prices communicated by Sweden under Article 8 of Regulation (EC) No 2771/1999. In the interests of clarity, the list in question should be replaced and Regulation (EC) 10/2002 should be repealed,
HAS ADOPTED THIS REGULATION:
Article 1
Buying-in of butter by invitation to tender as provided for in Article 6(1) of Regulation (EC) No 1255/1999 is hereby suspended in Belgium, Luxembourg, Denmark, Greece, Austria and Sweden.
Article 2
Regulation (EC) No 10/2002 is hereby repealed.
Article 3
This Regulation shall enter into force on 26 January 2002.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 25 January 2002.
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COMMISSION REGULATION (EC) No 2171/2004
of 17 December 2004
laying down rules for the management and distribution of textile quotas established for the year 2005 under Council Regulation (EC) No 517/94
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Council Regulation (EC) No 517/94 of 7 March 1994 on common rules for imports of textile products from certain third countries not covered by bilateral agreements, protocols or other arrangements, or by other specific Community import rules, (1) and in particular Article 17(3) and (6) and Article 21(2) thereof,
Whereas:
(1)
Regulation (EC) No 517/94 established quantitative restrictions on imports of certain textile products originating in certain third countries to be allocated on a first come, first served basis.
(2)
Under that Regulation it is possible, in certain circumstances, to use other allocation methods, to divide quotas into tranches, or to reserve a proportion of a specific quantitative limit exclusively for applications which are supported by evidence of the results of past import performance.
(3)
Rules for management of the quotas established for 2005 should be adopted before the quota year begins so that the continuity of trade flows is not affected unduly.
(4)
The measures adopted in previous years, such as those in Commission Regulation (EC) No 2308/2003 establishing rules for the management and distribution of textile quotas established for the year 2004 under Council Regulation (EC) No 517/94 (2), proved to be satisfactory and it is therefore appropriate to adopt similar rules for 2005 whilst excluding the adjustments made in Regulation (EC) No 2308/2003 to take account of the enlargement of the European Union from 1 May 2004.
(5)
In order to satisfy the greatest possible number of operators it is appropriate to make the ‘first come, first served’ allocation method more flexible by placing a ceiling on the quantities which can be allocated to each operator by that method.
(6)
To guarantee a degree of continuity in trade and efficient quota administration, operators should be allowed to make their initial import authorisation application for 2005 equivalent to the quantity which they imported in 2004.
(7)
To achieve optimum use of the quantities, an operator who has used up at least one half of the amount already authorised should be permitted to apply for a further amount, provided that quantities are available in the quotas.
(8)
For the sake of sound administration, import authorisations should be valid for nine months from the date of issue but only until the end of the year at the latest. Member States should issue licences only after being notified by the Commission that quantities are available and only if an operator can prove the existence of a contract and can certify, in the absence of a specific provision to the contrary, that he has not already been allocated a Community import authorisation under this Regulation for the categories and countries concerned. The competent national authorities should, however, be authorised, in response to importers’ applications, to extend by three months and up to 31 March 2006 licences of which at least one half has been used by the application date.
(9)
The measures provided for in this Regulation are in accordance with the opinion of the Textile Committee established by Article 25 of Regulation (EC) No 517/94,
HAS ADOPTED THIS REGULATION:
Article 1
The purpose of this Regulation is to lay down rules on the management of quantitative quotas for imports of certain textile products set out in Annexes IIIB and IV to Regulation (EC) No 517/94 for the year 2005.
Article 2
The quotas referred to in Article 1 shall be allocated according to the chronological order of receipt by the Commission of Member States’ notifications of applications from individual operators, for amounts not exceeding the maximum quantities per operator set out in Annex I.
The maximum quantities shall not, however, apply to operators able to prove to the competent national authorities, when making their first application for 2005, that, in respect of given categories and given third countries, they imported more than the maximum quantities specified for each category pursuant to import licences granted to them for 2004.
In the case of such operators, the competent authorities may authorise imports not exceeding the quantities imported in 2004 from given third countries and in given categories, provided that enough quota capacity is available.
Article 3
Any importer who has already used up 50 % or more of the amount allocated to him under this Regulation may make a further application, in respect of the same category and country of origin, for amounts not exceeding the maximum quantities laid down in Annex I.
Article 4
1. The competent national authorities listed in Annex II may, from 10.00 a.m. on 4 January 2005, notify the Commission of the amounts covered by requests for import authorisations.
The time fixed in the first subparagraph shall be understood as Brussels time.
2. The competent national authorities shall issue authorisations only after being notified by the Commission pursuant to Article 17(2) of Regulation (EC) No 517/94 that quantities are available for importation.
They shall issue authorisations only if an operator:
(a)
proves the existence of a contract relating to the provision of the goods and,
(b)
certifies in writing that, in respect of the categories and countries concerned:
(i)
he has not already been allocated an authorisation under this Regulation, or
(ii)
he has been allocated an authorisation under this Regulation but has used up at least 50 % of it.
3. Import authorisations shall be valid for nine months from the date of issue, but until 31 December 2005 at the latest.
The competent national authorities may, however, at the importer’s request, grant a three-month extension for authorisations which are at least 50 % used up at the time of the request. Such extension shall in no circumstances expire later than 31 March 2006.
Article 5
This Regulation shall enter into force on 1 January 2005.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 17 December 2004.
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COMMISSION REGULATION (EC) No 863/2005
of 7 June 2005
amending Regulation (EC) No 459/2005 as regards the quantity covered by the standing invitation to tender for the export of common wheat held by the Austrian intervention agency
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Council Regulation (EC) No 1784/2003 of 29 September 2003 on the common organisation of the market in cereals (1), and in particular Article 6 thereof,
Whereas:
(1)
Commission Regulation (EEC) No 2131/93 (2) lays down the procedure and conditions for the disposal of cereals held by intervention agencies.
(2)
Commission Regulation (EC) No 459/2005 (3) opened a standing invitation to tender for the export of 130 663 tonnes of common wheat held by the Austrian intervention agency.
(3)
Austria has informed the Commission of the intention of its intervention agency to increase by 30 000 tonnes the quantity put out to tender for export. In view of the market situation, the request made by Austria should be granted.
(4)
This increase in the quantity put out to tender makes it necessary to alter the quantity stored by region of storage referred to in Annex I to Regulation (EC) No 459/2005.
(5)
Regulation (EC) No 459/2005 should therefore be amended accordingly.
(6)
The measures provided for in this Regulation are in accordance with the opinion of the Management Committee for Cereals,
HAS ADOPTED THIS REGULATION:
Article 1
Regulation (EC) No 459/2005 is hereby amended as follows:
1.
Article 2 is replaced by the following:
‘Article 2
1. The invitation to tender shall cover a maximum of 160 663 tonnes of common wheat for export to third countries with the exception of Albania, Bosnia and Herzegovina, Bulgaria, Croatia, the Former Yugoslav Republic of Macedonia, Liechtenstein, Serbia and Montenegro (4), Romania and Switzerland.
2. The regions in which the 160 663 tonnes of common wheat are stored are listed in Annex I.
2.
Annex I is replaced by the text in the Annex to this Regulation.
Article 2
This Regulation shall enter into force on the day of its publication in the Official Journal of the European Union.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 7 June 2005.
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COMMISSION REGULATION (EC) No 934/2006
of 23 June 2006
establishing the standard import values for determining the entry price of certain fruit and vegetables
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Commission Regulation (EC) No 3223/94 of 21 December 1994 on detailed rules for the application of the import arrangements for fruit and vegetables (1), and in particular Article 4(1) thereof,
Whereas:
(1)
Regulation (EC) No 3223/94 lays down, pursuant to the outcome of the Uruguay Round multilateral trade negotiations, the criteria whereby the Commission fixes the standard values for imports from third countries, in respect of the products and periods stipulated in the Annex thereto.
(2)
In compliance with the above criteria, the standard import values must be fixed at the levels set out in the Annex to this Regulation,
HAS ADOPTED THIS REGULATION:
Article 1
The standard import values referred to in Article 4 of Regulation (EC) No 3223/94 shall be fixed as indicated in the Annex hereto.
Article 2
This Regulation shall enter into force on 24 June 2006.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 23 June 2006.
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COMMISSION REGULATION (EC) No 1285/1999
of 18 June 1999
on import licences for certain milk products originating in the African, Caribbean and Pacific States (ACP States)
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Council Regulation (EC) No 1706/98 of 20 July 1998 on the arrangements applicable to agricultural products and goods resulting from the processing of agricultural products originating in the African, Caribbean and Pacific States (ACP States) and repealing Regulation (EEC) No 715/90(1), and in particular Article 30 thereof,
Whereas Article 4(7) of Commission Regulation (EC) No 2414/98(2) lays down that, where the overall quantity for which applications have been submitted is less than the quantity available, the Commission shall calculate the quantity remaining, which shall be added to the quantity available for the following period in the same calender year; whereas, under these circumstances, the quantity available for the second period of 1999 should be determined for the products referred to in Article 7(1) of Regulation (EC) No 1706/98,
HAS ADOPTED THIS REGULATION:
Article 1
New import licence applications may be submitted during the first 10 days of July 1999 for the following quantities:
- 1000 tonnes for products falling within CN code 0402, quota No 09.4026,
- 1000 tonnes for products falling within CN code 0406, quota No 09.4027.
Article 2
This Regulation shall enter into force on 19 June 1999.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 18 June 1999.
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Commission Regulation (EC) No 76/2003
of 16 January 2003
fixing the maximum export refund for white sugar for the 21st partial invitation to tender issued within the framework of the standing invitation to tender provided for in Regulation (EC) No 1331/2002
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Council Regulation (EC) No 1260/2001 of 19 June 2001 on the common organisation of the markets in the sugar sector(1), as amended by Commission Regulation (EC) No 680/2002(2), and in particular Article 27(5) thereof,
Whereas:
(1) Commission Regulation (EC) No 1331/2002 of 23 July 2002 on a standing invitation to tender to determine levies and/or refunds on exports of white sugar(3), for the 2002/2003 marketing year, requires partial invitations to tender to be issued for the export of this sugar.
(2) Pursuant to Article 9(1) of Regulation (EC) No 1331/2002 a maximum export refund shall be fixed, as the case may be, account being taken in particular of the state and foreseeable development of the Community and world markets in sugar, for the partial invitation to tender in question.
(3) Following an examination of the tenders submitted in response to the 21st partial invitation to tender, the provisions set out in Article 1 should be adopted.
(4) The measures provided for in this Regulation are in accordance with the opinion of the Management Committee for Sugar,
HAS ADOPTED THIS REGULATION:
Article 1
For the 21st partial invitation to tender for white sugar issued pursuant to Regulation (EC) No 1331/2002 the maximum amount of the export refund is fixed at 47,140 EUR/100 kg.
Article 2
This Regulation shall enter into force on 17 January 2003.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 16 January 2003.
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COMMISSION DECISION
of 8 July 2009
amending Decision 2007/716/EC as regards certain establishments in the meat and milk sectors in Bulgaria
(notified under document number C(2009) 5335)
(Text with EEA relevance)
(2009/530/EC)
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to the Act of Accession of Bulgaria and Romania, and in particular Article 42 thereof,
Having regard to Council Directive 89/662/EEC of 11 December 1989 concerning veterinary checks in intra-Community trade with a view to the completion of the internal market (1), and in particular Article 9(4) thereof,
Whereas:
(1)
Commission Decision 2007/716/EC (2) lays down transitional measures for structural requirements of certain establishments in the meat and milk sectors in Bulgaria provided for in Regulations (EC) No 852/2004 (3) and (EC) No 853/2004 (4) of the European Parliament and of the Council. As long as those establishments are in transition, products originating from them are only to be placed on the domestic market or used for further processing in Bulgarian establishments in transition.
(2)
According to an official declaration from the Bulgarian competent authority, certain establishments in the meat and milk sectors have ceased their activities or have completed their upgrading process and are now in full compliance with Community legislation. Those establishments should therefore be deleted from the list of establishments in transition.
(3)
The Annex to Decision 2007/716/EC should therefore be amended accordingly.
(4)
The measures provided for in this Decision are in accordance with the opinion of the Standing Committee on Food Chain and Animal Health,
HAS ADOPTED THIS DECISION:
Article 1
The Annex to Decision 2007/716/EC is amended in accordance with the Annex to this Decision.
Article 2
This Decision is addressed to the Member States.
Done at Brussels, 8 July 2009.
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COMMISSION DIRECTIVE 94/23/EC of 8 June 1994 amending, with the view to fixing the minimum standards for testing vehicle braking systems, Council Directive 77/143/EEC on the approximation of the laws of the Member States relating to roadworthiness tests for motor vehicles and their trailers
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Council Directive 77/143/EEC of 29 December 1976 on the approximation of the laws of the Member States relating to roadworthiness tests for motor vehicles and their trailers (1), as last amended by Directive 92/55/EEC (2), and in particular Article 5a (2) thereof,
Having regard to Council Directive 71/320/EEC of 26 July 1971 on the approximation of the laws of the Member States relating to the braking devices of certain categories of motor vehicles and of their trailers (3), as last amended by Directive 91/422/EEC (4),
Whereas Directive 77/143/EEC provides for the regular roadworthiness testing of all categories of vehicles listed in Annex I thereto;
Whereas that Directive provides for the adoption by the Council of separate directives necessary to define the minimum standards and methods for testing the items listed in Annex II thereto and the establishment of a committee to advise the Commission before it adopts the amendments which are necessary to adopt the standards and methods defined in the separate directives to technical progress;
Whereas Directive 77/143/EEC, as amended in particular by Council Directive 92/54/EEC (5), defines the minimum standards for testing vehicle braking systems;
Whereas it is necessary to adapt these standards to technical progress to include minimum braking efficiency values so as to ensure, as far as practicable, that vehicles in service are safe as far as braking efficiency is concerned;
Whereas, until such time there are harmonized test procedures and practices, Member States may use their judgement as to the test procedure they use to establish whether the vehicle in question meets the braking requirements;
Whereas it is recognized by all concerned with vehicle testing that the method of testing and, in particular whether the vehicle is tested in a laden, part laden or unladen condition, influences the degree of confidence testers have as to the roadworthiness of the braking system;
Whereas the prescription of brake force reference values for various laden conditions for each vehicle model would help restore that confidence, whereas this Directive enables testing under this regime as an alternative to testing against minimum performance values for each vehicle category;
Whereas it is the intention to further amend this Directive so as to include a harmonious and improved test methodology;
Whereas the scope of this Directive relates in the main to vehicles which have been type-approved to the provisions of Directive 71/320/EEC although it is recognized that certain types of vehicle have been approved to national standards which may differ from the requirements of this Directive; whereas Member States may establish their own testing standards regarding brake efficiency for vehicles that are considered to be of historic interest;
Whereas, in recognizing the right of Member States to establish their own standards for historic vehicles, those standards sould not be more severe than those which the vehicle was originally designed to meet;
Whereas, in view of the effects of such adaptations on the sector in question, in Community measures provided for by this Directive are necessary to attain the objectives sought, namely harmonization at Community level of the rules on roadworthiness tests and to improver road safety; whereas this cannot adequately be achieved by the Member States individually;
Whereas the measures provided for in this Directive are in accordance with the opinion of the Committee for the Adaptation to Technical Progress of the Directive on Motor Vehicle Roadworthiness Testing, establishing pursuant to Article 5b of Directive 77/143/EEC,
HAS ADOPTED THIS DIRECTIVE:
Article 1
Annex II to Directive 77/143/EEC is hereby amended as follows:
1.2.1. Performance (progressively increased to maximum effort) - Inadequate braking effort on one or more wheels - Braking effort from any wheel is less than 70 % of the highest recorded effort from another wheel on the same axle. In the case of brake testing on the road then the vehicle's deviation from a straight line is excessive - No gradual variation of brake effort (grabbing) - Abnormal time lag in brake operation at any wheel - Excessive fluctuation of brake effort due to distort discs or oval drums 1.2.2. Efficiency - A braking ratio which relates to the maximum authorized mass or, in the case of semi-trailers, to the sum of the authorized axle loads where practicable, less than the following: Minimum braking efficiency Category 1: 50 % (6) Category 2: 43 % (7) Category 3: 40 % (8) Category 4: 50 % Category 5: 45 % (9) Category 6: 50 % - or a braking effort less than the reference values if specified by the vehicle manufacturer for the vehicle axle (10) 1.3.2. Efficiency - For all vehicle categories, a braking ratio less than 50 % (11) of the service brake performance defined in 1.2.2 in relation to the maximum authorized mass or, in the case of semi-trailers, to the sum of the authorized axle loads 1.4.2. Efficiency - For all vehicle categories, a braking ratio less than 16 % in relation to the maximum authorized mass, or, for motor vehicles, less than 12 % in relation to the maximum authorized combination mass of the vehicle, whichever is greater'.
Article 2
Member States shall apply suitable procedures to establish, as far as practicable, that the brake performance of the vehicles registered in their territory meet the requirements specified in Directive 77/143/EEC.
Article 3
Member States may require higher braking efficiency minima and may include testing against higher laden weights, than those specified in Annex II for those vehicles registered in their territory, provided such requirements do not exceed those of the vehicle's original type-approval.
Article 4
Member States may, after consulting the Commission, establish their own testing standards regarding brake efficiency for vehicles that are considered to be of historic interest.
Article 5
1. Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive not later than 1 January 1997. They shall immediately inform the Commission thereof.
When these provisions are adopted by Member States, they shall contain a reference to this Directive or shalll be accompanied by such reference at the time of their official publication. The procedure for making such reference shall be adopted by Member States.
2. Member States shall communicate to the Commission the provisions of national law which they adopt in this field governed by this Directive.
Article 6
This Directive shall enter into force on the 20th day following its publication in the Official Journal of the European Communities.
Done at Brussels, 8 June 1994.
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COMMISSION REGULATION (EC) No 2749/95 of 28 November 1995 establishing unit values for the determination of the customs value of certain perishable goods
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code (1),
Having regard to 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 (2), as last amended by Regulation (EC) No 1762/95 (3), and in particular Article 173 (1) thereof,
Whereas Articles 173 to 177 of Regulation (EEC) No 2454/93 provide that the Commission shall periodically establish unit values for the products referred to in the classification in Annex 26 to that Regulation;
Whereas the result of applying the rules and criteria laid down in the abovementioned Articles to the elements communicated to the Commission in accordance with Article 173 (2) of Regulation (EEC) No 2454/93 is that unit values set out in the Annex to this Regulation should be established in regard to the products in question,
HAS ADOPTED THIS REGULATION:
Article 1
The unit values provided for in Article 173 (1) of Regulation (EEC) No 2454/93 are hereby established as set out in the table in the Annex hereto.
Article 2
This Regulation shall enter into force on 1 December 1995.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 28 November 1995.
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COUNCIL DECISION of 30 October 1995 appointing a member and two alternate members of the Committee of the Regions (95/462/EC)
THE COUNCIL OF THE EUROPEAN UNION,
Having regard to the Treaty establishing the European Community, and in particular Article 198a thereof,
Having regard to the Council Decision of 26 January 1994 appointing members and alternate members of the Committee of the Regions for the period 26 January 1994 to 25 January 1998 (1),
Whereas a seat as a member of the Committee has become vacant following the resignation of Mr Juan Hormaechea Cazón, notified to the Council on 10 October 1995;
Whereas two seats as alternate members of the Committee have become vacant following the resignation of Mr José Ramón Ruíz Martínez and Mr Ramón Ropero Mancera, notified to the Council on 10 October 1998,
Having regard to the proposal from the Spanish Government,
HAS DECIDED AS FOLLOWS:
Sole Article
Mr Joaquín Martínez Sieso is hereby appointed a member of the Committee of the Regions in place of Mr Juan Hormaechea Cazón for the remainder of the latter's term of office, which runs until 25 January 1996.
Mr Emilio Del Valle Rodríguez is hereby appointed an alternate member of the Committee of the Regions in place of Mr José Ramón Ruíz Martínez for the remainder of the latter's term of office, which runs until 25 January 1998.
Mr Ignacio Sánchez Amor is hereby appointed an alternate member of the Committee of the Regions in place of Mr Ramón Ropero Mancera for the remainder of the latter's term of office, which runs until 25 January 1998.
Done at Luxembourg, 30 October 1995.
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COMMISSION DECISION of 9 November 1994 amending Commission Decision 92/452/EEC establishing list of embryo collection teams and embryo production teams approved in third countries for export of bovine embryos to the Community (Text with EEA relevance) (94/737/EC)
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Council Directive 89/556/EEC of 25 September 1989 on animal health conditions governing intra-Community trade in and imports from third countries of embryos of domestic animals of the bovine species (1), as last amended by Council Directive 94/113/EC (2), and in particular Article 8 thereof,
Whereas Commission Decision 92/452/EEC (3), as last amended by Decision 94/678/EC (4), establishes a list of embryo collection teams and embryo production teams approved in third countries for the export of embryos of domestic animals of the bovine species to the Community;
Whereas the competent authorities of the United States of America have forwarded amendments to their list of teams;
Whereas it is now necessary to amend the list of approved teams as regards the United States of America;
Whereas the measures provided for in this Decision are in accordance with the opinion of the Standing Veterinary Committee,
HAS ADOPTED THIS DECISION:
Article 1
The following embryo collection teams are added in part 3 of the Annex to Decision 92/452/EEC:
'94MI074 GGS Genetics Dr John D. Gunther E636 1 200 Stillman Road Mason, MI 94ME075 New England Genetics Dr Calvin Blessing'
Article 2
This Decision is addressed to the Member States.
Done at Brussels, 9 November 1994.
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COMMISSION REGULATION (EEC) No 372/91 of 15 February 1991 extending Regulation (EEC) No 3714/89 introducing retrospective surveillance of the reimportation after outward processing of certain textile products originating in Malta, Morocco, Tunisia and Turkey
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Economic Community,
Having regard to Council Regulation (EEC) No 288/82 of 5 February 1982 on common rules for imports (1), as last amended by Regulation (EEC) No 3156/90 (2), and in particular Articles 10 and 14 thereof,
After consulting the committee set up under Article 5 of Regulation (EEC) No 288/82,
Whereas Regulation (EEC) No 3714/89 (3), by virtue of which the Commission has established a system subjecting reimports after outward processing of certain textile products originating in Malta, Morocco, Tunisia and Turkey to retrospective surveillance, expired on 11 December 1990;
Whereas the situation which led to the introduction of the said surveillance system still exists;
Whereas that system should therefore be renewed, and should be extended to cover other regions of the Community where the need for surveillance has arisen,
HAS ADOPTED THIS REGULATION:
Article 1
The period of application of Regulation (EEC) No 3714/89 is hereby extended until 31 December 1991.
The Annex to Regulation (EEC) No 3714/89 is replaced by the Annex to this Regulation.
Article 2
This Regulation shall enter into force three days after its publication in the Official Journal of the European Communities.
It shall be applied from 11 December 1990.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 15 February 1991.
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Commission Regulation (EC) No 157/2003
of 28 January 2003
establishing unit values for the determination of the customs value of certain perishable goods
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code(1), as last amended by Regulation (EC) No 2700/2000 of the European Parliament and of the Council(2),
Having regard to 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(3), as last amended by Regulation (EC) No 444/2002(4), and in particular Article 173(1) thereof,
Whereas:
(1) Articles 173 to 177 of Regulation (EEC) No 2454/93 provide that the Commission shall periodically establish unit values for the products referred to in the classification in Annex 26 to that Regulation.
(2) The result of applying the rules and criteria laid down in the abovementioned Articles to the elements communicated to the Commission in accordance with Article 173(2) of Regulation (EEC) No 2454/93 is that unit values set out in the Annex to this Regulation should be established in regard to the products in question,
HAS ADOPTED THIS REGULATION:
Article 1
The unit values provided for in Article 173(1) of Regulation (EEC) No 2454/93 are hereby established as set out in the table in the Annex hereto.
Article 2
This Regulation shall enter into force on 31 January 2003.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 28 January 2003.
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COMMISSION DECISION
of 27 January 2010
on State aid C 12/08 (ex NN 74/07) - Slovakia - Agreement between Bratislava Airport and Ryanair
(notified under document C(2010) 183)
(Only the Slovak text is authentic)
(Text with EEA relevance)
(2011/60/EU)
THE EUROPEAN COMMISSION,
Having regard to the Treaty on European Union and to the Treaty on the Functioning of the European Union, and in particular the first subparagraph of Article 108(2) of the latter (1),
Having regard to the Agreement on the European Economic Area, and in particular Article 62(1)(a) thereof,
Having called on interested parties to submit their comments pursuant to the above Articles (2), and having regard to these comments,
Whereas:
1. PROCEDURE
(1)
By letter dated 11 March 2008, the Commission informed the Slovak Republic of its decision to initiate the procedure provided for in Article 108(2) TFEU (ex Article 88(2) of the EC Treaty) with regard to the Agreement between Bratislava Airport and Ryanair (hereinafter: the ‘Agreement’ or the ‘Ryanair agreement’), and that it had at the same time decided to issue an information injunction according to the provisions of Article 10(3) of Council Regulation (EC) No 659/1999 of 22 March 1999 laying down detailed rules for the application of Article 93 of the EC Treaty (3) (now Article 108 TFEU) (hereinafter: ‘Procedural Regulation’) with respect to all documents, data and information necessary for the Commission to be able to assess the measure in question. On 11 June 2008, Slovakia transmitted its comments on the initiation of the procedure to the Commission.
(2)
The Commission’s decision to initiate the procedure and to issue the information injunction was published in the Official Journal of the European Union (4). The Commission invited interested parties to submit their comments on the measure in question within 1 month of the publication date.
(3)
The Commission received comments on the subject from two interested parties. It transmitted the comments to Slovakia by electronic mail on 11 September 2008. Slovakia was given the opportunity to respond to these comments. At the request of the Slovak authorities, a meeting took place on 26 November 2008. The Commission received Slovakia’s observations by electronic mail dated 17 December 2008.
2. GROUNDS FOR INITIATING THE PROCEDURE
(4)
In its decision to open the procedure, the Commission noted that Letisko M. R. Štefánika - Airport Bratislava, a.s. (hereinafter: ‘BTS’ or the ‘Airport’) is the principal international airport of the Slovak Republic. The shareholders of BTS are currently the Ministry of Transport, Posts and Telecommunications of the Slovak Republic (34 %) and the National Property Fund of the Slovak Republic (5) (hereinafter the ‘National Property Fund’) (66 %).
(5)
The decision to open the procedure is based on information submitted by the complainant and statements from the media (6) according to which BTS has provided Ryanair, on the basis of an agreement concluded on 5 December 2005, with a reduction in airport charges for new scheduled and existing destinations (i.e. destinations already served from the airport). This Agreement is valid until 30 June 2016.
(6)
The agreement with Ryanair has allegedly set out a so-called ‘service charge’ (a single price for different services) which includes aircraft-handling and related services, passenger services, ramp services, load control, communications and flight operations, support services and terminal and infrastructure services.
(7)
The charges applied are allegedly significantly lower than the list of charges officially published in the Aeronautical Information Publication (7) (hereinafter the ‘AIP’). The amount of the service charge allegedly differs depending on whether the airline operates a new scheduled destination or an existing destination. The following table summarises the charges Ryanair would allegedly have to pay, if it was charged under the AIP, and the charges Ryanair allegedly in fact pays:
Table 1
Comparison of charges under AIP and charges in the Agreement with Ryanair
(in EUR)
Charges under AIP (8)
Charges Ryanair allegedly pays for new destinations (9)
Discount for new destination
Charges Ryanair allegedly pays for existing destinations (10)
Discount for existing destinations
Landing charge
780
Passenger charge
2 030
Ground handling charge
250 (11)
Total
3 060
[…] (12)
[…]
[…]
[…]
(8)
The so-called service charge for new destinations would be applied to all destinations during the first 12 months after the Agreement has entered into force. For each successive year, the service charge for new destinations will be increased by […]. After the first […] years the service charge applicable to new destinations shall be equal to the service charge applied to the existing destinations. The service charge would also include a parking charge. In addition, any new charges introduced in the future, which Ryanair would not be required to pay, would further increase the gap between the discounted tariff and the AIP tariff.
(9)
On the basis of the above, the decision to open the procedure raised the following three questions:
-
whether the decision of BTS to conclude an Agreement with Ryanair is imputable to the Slovak authorities,
-
whether BTS, in accepting a reduction in airport charges for new and existing Ryanair destinations for the period from the signing of the Agreement until 30 June 2016, acted as a market economy investor,
-
whether, if the service charge for new and existing destinations amounts to State aid, this aid is compatible with the internal market.
(10)
As regards the first question, the Commission observed in the opening of the investigation that on 22 October 2007 BTS shareholders, acting on a proposal from the Ministry of Transport, Posts and Telecommunications of the Slovak Republic, appointed the new chairman of the BTS board of directors. The Commission therefore expressed doubts regarding the non-imputability of the Agreement to the State, as argued by the Slovak authorities.
(11)
As regards the second question, the Commission had to examine whether, in this particular case, the behaviour of BTS had been guided by prospects of profitability and whether Ryanair’s alleged advantage is one it would not obtain under normal market conditions.
(12)
In this respect, the Slovak authorities had submitted that BTS, as the airport operator, acts like any other undertaking on the market, i.e. it determines the charges for services provided to air carriers at the Airport for each carrier individually, on the basis of negotiations, i.e. by means of an agreement between the parties and in accordance with its commercial policy.
(13)
They had also considered that the granting of discounts represents common commercial practice in relation to all airlines and that the discounts ‘encourage air carriers to transport more passengers to the airport, which enables the airport operator, BTS, to generate higher revenues, both from charges for services provided to the air carriers and from its other commercial activities at the airport that do not relate to air transport but are aimed at making the airport more attractive to passengers; in other words, supporting the activities of air carriers represents direct support for the development of the airport itself.’
(14)
Nevertheless, the Slovak authorities did not provide the Commission either with the terms of the Agreement or with details of the circumstances under which it had been concluded. The Commission therefore expressed doubts in its decision to open the procedure as to whether the behaviour of BTS was guided by prospects of long-term profitability. Thus the possibility could not be ruled out that the conclusion of the Agreement provided Ryanair with an advantage from which it would not have benefited under normal market conditions.
(15)
As regards the third question, the Commission expressed doubts as to whether the conditions for compatibility as set out in the Communication from the Commission on financing of airports and start-up aid to airlines departing from regional airports (hereinafter the ‘2005 Guidelines’) (13) had been satisfied in the present case and whether the State aid measure could be declared compatible with the internal market pursuant to Article 107(3)(c) TFEU.
(16)
The information injunction, issued according to Article 10(3) of the Procedural Regulation, requested the Slovak Republic to submit all documents, information and data needed for the assessment of the measure and in particular:
-
the terms of the Agreement,
-
studies, internal documents or any other papers on the basis of which the Agreement was negotiated,
-
the business plan of the Airport and any other strategic document in relation to the business strategy towards Ryanair,
-
the rules/circumstances under which charges were negotiated with other airlines and the policy under which charges are applied to other companies operating to/from Bratislava (Air Slovakia, ČSA, Lufthansa, SkyEurope),
-
any existing shareholder agreement between the National Property Fund and the Slovak state regarding BTS, and
-
the information requested in paragraph 70 of the opening decision.
3. COMMENTS FROM SLOVAKIA
(17)
The Slovak authorities began their observations by providing background information on the destinations served by Ryanair (11 destinations) and other air carriers (Sky Europe: nine scheduled destinations and nine summer destinations; ČSA: one destination; Air Slovakia: four destinations; Lufthansa: one destination and Aeroflot: one destination) from the Airport in 2008.
(18)
In their observations, the Slovak authorities further explained that AIP refers to the Airport’s standard charges. However, in order to improve its profitability and to make better use of its capacities, the Airport can agree discounts from these standard charges on the basis of individual agreements. Such discounts are based on different criteria, such as the number of passengers carried, the frequency of the routes operated and/or the introduction of new routes. If the air carrier does not comply with the criteria agreed in an individual agreement, it loses the right to apply for discounts.
(19)
The Slovak authorities further explained that, as a commercial undertaking, BTS is itself responsible for its pricing strategy and the profitability of the agreements it concludes with different air carriers. BTS presents to the advisory board only its overall annual strategy with regard to the number of passengers at the Airport, its overall revenue and costs, its investments and the means of financing those investments. This annual strategy presentation does not take account of individual air carriers or of individual agreements.
(20)
The Slovak authorities explained further that, because of the independence of BTS, they are not in a position to provide the Commission with information concerning the profitability of the relevant routes, nor are they able to provide any documentation concerning the negotiation process in relation to the Ryanair agreement.
(21)
According to the Slovak authorities, the Agreement between BTS and Ryanair is based on commercial terms and does not involve State aid.
3.1. Ryanair agreement of 5 December 2005
(22)
The Slovak authorities have also provided a copy of the ‘Airport Services Agreement’, dated 5 December 2005 and concluded between BTS and Ryanair. The Agreement sets out the operational and financial conditions under which Ryanair establishes and operates commercial flights to and from the Airport. The Agreement commenced on the date of signature of the contract (i.e. 5 December 2005) and ends on 30 June 2016.
(23)
The Agreement was concluded on a non-exclusive basis, meaning that the parties agreed that the conditions granted to Ryanair according to the Agreement may also be available on a transparent and non-discriminatory basis to any other airline that would commit itself to an equivalent volume of activity at the Airport.
(24)
Ryanair committed itself in this Agreement to pay for a minimum of […] routes per day as from 1 July 2009, even if it operated fewer routes in the period from 1 July 2009 to 30 June 2016. BTS committed itself to provide sufficient facilities to Ryanair in order to enable it to operate this agreed minimum of […] routes per day.
3.1.1. The Ryanair service charge
(25)
Ryanair will pay for services provided by the airport a single charge per aircraft (departure and arrival), the so-called ‘service charge’, amounting to […] per aircraft type B737-800 following signature of the contract. This charge will increase by […] from 1 January each year against the previous year, except when the destination is a ‘new destination’ (see below). It includes the landing charge, airport departure charge and handling charges, including security and safety charges (14). It does not include either the approach charge collected by the Aviation Traffic Control or the parking fees for aircraft, as Ryanair aircraft are not based at the airport.
(26)
According to the Agreement, if the Airport introduces security taxes or charges other than those already contained in the ‘service charge’ the Airport will have to collect those charges directly from passengers.
3.1.2. The charge for new destinations
(27)
The Slovak authorities also explain that a ‘new destination’ within the meaning of the Agreement is understood to be any scheduled flight not operated by another air carrier during the validity of the timetable in the same period of the year prior to start-up. The charge will be applicable only if the airline operates a minimum of […] flights per week. In assigning the destination, the airport’s IATA/ICAO code is the decisive factor; in other words, the definition of a new destination relates to the airport and not the city. The charge for new destinations covers the same items as the normal service charge.
(28)
Ryanair pays to the Airport the following service charges for each 12-month period following the launch date of the new destination:
-
Year 1: […] per aircraft type B 737-800 (departure + arrival),
-
Year 2: […] per aircraft type B 737-800 (departure + arrival),
-
Year 3: […] per aircraft type B 737-800 (departure + arrival),
-
Year 4: […] per aircraft type B 737-800 (departure + arrival),
-
Year 5: […] per aircraft type B 737-800 (departure + arrival),
-
Year 6: […] per aircraft type B 737-800 (departure + arrival), and
-
after 6 years the normal Ryanair service charge (see recital 25 above) will be applied.
(29)
The charges for new destinations do not increase by […] each year.
3.1.3. Other services provided to Ryanair
(30)
As a handling agent, the Airport also provides Ryanair with a reservation and ticket agency facility. According to the Agreement, Ryanair pays a commission to the Airport at a rate of […] of all new Ryanair bookings (excluding taxes, amendment fees, other fees and passenger service and other charges) sold by debit/credit card by the Airport. The commission fee is set according to the following schedule:
-
monthly average collection per departing passenger up to EUR […]: […] commission on the total amount,
-
monthly average collection per departing passenger between EUR […] and EUR […]: […] commission on the total amount, and
-
monthly average collection per departing passenger EUR […] or more: […] commission on the total amount.
4. COMMENTS FROM THIRD PARTIES
4.1. BTS
(31)
BTS comments were provided in a letter dated 8 July 2008.
4.1.1. Imputability of the Agreement to the State
(32)
With regard to its shareholders, BTS further explained that when the Agreement was signed (5 December 2005), the Ministry of Transport, Posts and Telecommunications of the Slovak Republic was the Airport’s sole shareholder. The National Property Fund of the Slovak Republic only obtained ownership rights to BTS’s shares later in the privatisation process. Therefore, BTS is of the opinion that further demonstration of the role and influence of the National Property Fund is irrelevant.
(33)
BTS is of the opinion that the discounts granted to Ryanair were by no means provided from State resources since, as a private joint stock company, BTS has no state resources at its disposal. In BTS’s opinion, the mere fact that the state owns BTS’s shares does not automatically involve State resources. Pursuant to Article 295 of the EC Treaty, the Treaty does not discriminate between ownership by public authorities and private persons.
(34)
BTS further explains that the decision to sign the agreement is not imputable to the State, although the Ministry, as the sole shareholder, appointed the members of the board of directors who negotiated and signed the Agreement in question. In its opinion these members were selected pursuant to BTS’s articles of association on the basis of a transparent selection procedure, and, pursuant to the Slovak Commercial Code and BTS’s articles of association, the board of directors manages the activities of the company and makes business decisions and decisions of an operational and organisational nature, except where such decisions are within the remit of other bodies. In addition, pursuant to the Slovak Commercial Code, the board of directors is obliged to act for the benefit of the company and is liable for damages caused, unless it is proven that its members performed their duties with professional care and in good faith in the interests of the company. Members of the board of directors are liable even if their actions were approved by the supervisory board.
(35)
BTS explains that the management that negotiated and concluded the Agreement acted in its sole discretion with no intervention from the shareholder. The BTS management has never been bound to submit the company’s business strategy towards individual carriers to the shareholder or any other body for approval.
4.1.2. AIP prices vs. the Agreement
(36)
With regard to passenger and landing charges according to the AIP in force, the Airport states that charges have not changed in recent years. Only in 2008 were landing charges decreased by 7 % due to increased utilisation of the Airport. The following table summarises developments in charges from 2003 until 2008.
Table 2
AIP price development at BTS in SKK
Charges in SKK
2003
2004
2005
2006
2007
2008
Passenger charges (per passenger)
490
490
490
490
490
490
Landing charges (per 1 tonne of aircraft takeoff weight)
425
425
425
425
425
395
(37)
In addition, the Airport is of the opinion that the prices stated in the AIP are only recommended prices and not binding on BTS. These prices are applicable to air carriers which do not accept any other contractual obligation towards BTS concerning the number of routes operated, frequency of flights, volume of passengers or duration of their operations at the Airport. In BTS’s opinion, any contractual arrangement which goes beyond the scope of the standard rules stipulated by regulations and standards must be mutually balanced and reflected in prices. This gives the airport operator the possibility of differentiating the prices for services provided in connection with the obligations accepted by the air carrier, with the aim of maximising the economic benefits for the Airport.
(38)
BTS further explains that as the Agreement contains a clause concerning a year-on-year price increase of […], the difference between Ryanair and AIP prices is gradually decreasing. Also, the ‘one-off’ reduction in AIP prices in 2008 was not reflected in Ryanair prices, further reducing the difference.
(39)
With regard to other published AIP prices, BTS further explains that the charge for approach and air traffic control is not included in the price agreed between BTS and Ryanair as this service is not provided by BTS. BTS also explains that, according to the AIP in force during the period in question, aircraft parking is free for the first 2 hours. Therefore BTS does not see how Ryanair gains any real benefit under the Agreement with regard to free parking, as firstly this condition corresponds to the AIP in force and, secondly, Ryanair’s aircraft do not stay at the Airport longer than 2 hours (15).
(40)
In the opinion of BTS, the information given above demonstrates that the contractual prices agreed between BTS and Ryanair are not at variance with the recommended AIP prices, despite their different structure, that they reflect the obligations assumed by Ryanair and that they provide an economic gain for BTS which is comparable to or higher than that from other carriers. BTS also explains that a discount on the unit price alone cannot be a reason to claim that the recipient received an economic advantage.
4.1.3. The market economy investor principle and the Ryanair agreement
(41)
BTS further explains that, in signing the Agreement, it did not seek to achieve regional economic development nor possible inward investment in the first place. It states that the main objective of its business decision was to increase revenues from aviation and non-aviation activities, to diversify the risk and the dependence on Sky Europe - the single key air carrier at the Airport - and to create more stable development of passenger volumes at the Airport. In the opinion of BTS, all these factors would help to increase its market value.
Table 3
Development of regular transport at the Airport 2004 - 2007 in passenger numbers
Regular transport in passenger numbers
2004
2005
2006
2007
Ryanair
-
0 %
62 524
8 %
451 328
30 %
582 135
38 %
SKYEurope
329 463
71 %
587 048
73 %
837 325
56 %
815 459
53 %
ČSA
85 872
19 %
89 462
11 %
93 955
6 %
91 821
6 %
Slovenské aerolínie (16)
25 705
6 %
46 899
6 %
56 165
4 %
3 568
0 %
AIR Slovakia
22 115
5 %
22 408
3 %
44 349
3 %
58 379
4 %
Total
463 155
100 %
808 341
100 %
1 483 122
100 %
1 551 362
100 %
(42)
BTS also argues that, as the Agreement was concluded in December 2005, the data available at that time should be used for comparison, i.e. airport charges applicable at other European airports competing with BTS in attracting air carriers comparable to Ryanair.
(43)
BTS further argues that it is generally known that privately owned airports usually provide discounts to airlines in the expectation of increasing profitability. The discounts granted to Ryanair may seem to be providing an economic advantage if comparing unit prices as such, without taking account of the economic benefits and effects for the airport. In BTS’s opinion, unit prices cannot be assessed without considering other contractual arrangements and without their relation to the number of passengers carried, the total annual number of passengers, the weight of aircraft, the regularity and number of flights during a year, seasonality and corresponding costs and other factors influencing the profitability of the airport as a whole. All these factors affect an airport’s revenues and costs and must be taken into account when comparing prices charged to individual carriers.
(44)
BTS is of the opinion that, in concluding the Agreement, it acted as a private investor in a market economy. BTS carried out financial calculations of the profitability of the Agreement with Ryanair before signing it. Several conference calls between the management of BTS and Ryanair took place in order to negotiate the conditions. BTS’s calculations assessed the costs and expected revenue resulting from the Agreement and were based on the experiences of various airports with low-cost carriers.
(45)
BTS further explains that, when the Agreement was concluded, the airport had sufficient operational capacity to increase passenger numbers in subsequent years, and therefore did not expect an additional increase in fixed costs related to increased capacity. It also states that an agreement with another air carrier to ensure an increase in passenger numbers comparable to that provided by Ryanair would be concluded under comparable conditions. In relation to the nature of services provided by BTS to Ryanair’s passengers and aircraft, it explains that those services are significantly cheaper than those provided to standard carriers.
(46)
BTS further explains that the revenue from the Agreement with Ryanair represents a ‘guaranteed income’ stream. This is in particular because, according to Article 2.1 of the Agreement, in the period from 1 July 2009 to 30 June 2016 Ryanair is obliged to pay BTS for a minimum of […] flights per day, even if it operates fewer flights in this period. In BTS’s opinion, this commitment from Ryanair allows for better planning of long-term investment at the Airport. In addition, BTS explains that, due to Ryanair, non-aviation revenue at the Airport has increased substantially.
(47)
In relation to the mechanism for the application of the Agreement-based discount for new destinations, BTS emphasises that the discount cannot be calculated in relation to the first year of the Agreement’s validity, but to the first 12 months from the commencement of links to the relevant destinations.
(48)
In relation to discounts for the so-called ‘new destinations’, BTS is also of the opinion that such a discount does not constitute a selective economic advantage to Ryanair, since BTS is only ready to provide the discounted prices for destinations meeting the respective criteria set out in the Agreement and providing an economic gain for the Airport. BTS also emphasises that the carrier is eligible for the discounted price only in the case of a regular destination with at least […] flights per week. With the anticipated minimum utilisation of the capacity of B 737-800 aircraft (63 %) (17), this represents at least 90 000 new passengers per year, representing more than 6,5 % of the total number of passengers handled by the airport at the time the Agreement was signed and more than 4,3 % of the total number of passengers handled by the airport in 2007.
(49)
At the same time it must be stated that, to date, only one of Ryanair’s destinations since the signature of the Agreement has complied with the conditions for granting the discount, namely Frankfurt-Hahn. At the time of signing the Agreement, no other air carrier operated regular flights to this destination, nor do they now, so there was no takeover of existing passengers of another air carrier by Ryanair.
(50)
In addition, BTS explains that if an air carrier complies with the conditions of a ‘new destination’, the economic gain from such a destination, even after granting the highest discount in the first year, is more than […] per year, which is […] more than for a common average destination served by another carrier with three flights per week under AIP prices (i.e. […]) and nearly […] more than for another carrier’s destination with five flights per week under AIP prices (i.e. […]).
(51)
BTS is of the opinion that a new destination contributes significantly to the growth and development of the airport, particularly due to higher utilisation of airport capacity (terminal building and runways), where the gain from the high volume of revenues obtained as a result of introducing this new destination greatly exceeds the discounts provided and significantly contributes to the company’s existing fixed costs (18) and, at the same time, to the sustainability of prices for services provided by the Airport (see AIP price development). BTS further states that such a new destination also helps to increase the share of regular traffic at the airport and reduces the irregular utilisation of airport capacity caused by summer (charter) flights, which are the most significant factors affecting the need for investment in new airport capacity, and which place a burden on the airport’s budget through depreciation and interest, and subsequently result in the need to increase prices for services provided.
(52)
BTS further explains that the conditions for granting discounts for new destinations must respect a seven-flights-per-week frequency, which was fulfilled by Ryanair only in the case of Frankfurt-Hahn. However, Ryanair opened several ‘new’ destinations for which it did not receive discounts because of insufficient weekly flight frequencies (e.g. Stockholm-Skavsta, East Midlands, Bristol and Bremen).
(53)
With regard to the profitability of routes, BTS explains that it does not have this information at its disposal and that the profitability of a route can only be evaluated by the air carrier. Since the beginning of its services at BTS, Ryanair cancelled only one route (Bratislava-Bremen, Germany). The route was cancelled after 8 months of operation, even though Ryanair paid a negotiated price for it (that is, lower than the price declared in AIP). BTS points out that this illustrates that the provision of any discount for destinations under normal market conditions is not sufficient for maintaining an unprofitable route.
4.1.4. Compatibility of the aid
(54)
BTS is of the opinion that the Agreement did not provide an advantage to Ryanair as it was based on market terms and therefore does not constitute State aid. It did not therefore provide explanations on compatibility criteria.
(55)
BTS is also of the opinion that the 2005 Guidelines do not constitute legally binding legislation in Community law, i.e. that they are not binding on EU Member States and natural and legal persons. Only Regulations, Directives and Decisions are binding. Recommendations and opinions have no binding force. In addition, BTS argues that the Agreement was concluded on 5 December 2005 and the 2005 Guidelines were published on 9 December 2005, and are not retroactively applicable in the present case.
4.2. Ryanair
(56)
Ryanair began its observations (dated 8 August 2008) by stating that in its opinion the initiation of a formal investigation procedure was unjustified und unnecessary. It also stated that it regrets that the Commission did not give Ryanair the possibility to engage itself in the preliminary examination.
(57)
On the substance of the case, Ryanair is of the opinion that the Commission should have based itself on standard commercial arrangements and, inter alia, on the evidence of comparable airports submitted by Ryanair in the Charleroi investigation, and on this basis the Commission should have decided that the Agreement in question complies with the market economy investor principle and hence does not involve State aid.
4.2.1. Imputability of the Agreement to the State
(58)
With regard to the financing of the Agreement through State resources and its imputability to the Slovak authorities, Ryanair’s understanding is that BTS was acting autonomously when it entered into the Agreement and that therefore no State measure was involved.
(59)
In Ryanair’s opinion, the complainant appears to have been biased, taking Ryanair’s objections to the takeover of BTS by Vienna Airport and the timing of the conclusion of the Agreement as evidence of the granting of State aid, and to have magnified the apparent extent of the alleged advantage granted to Ryanair.
(60)
While Ryanair confirms that it is true that it had raised competition concerns regarding the choice of buyer in the BTS privatisation process (19), it is of the opinion that it would be absurd to conclude from Ryanair’s position that it is against the privatisation of the Airport, or that it was opposed to Vienna Airport acquiring BTS because the Agreement could allegedly only work if the Airport was publicly owned, due to the necessity of State aid. Ryanair further explains that it was not against the privatisation of BTS per se, but against the choice of buyer (Vienna Airport), because this would have removed the competitive pressure created by Bratislava Airport on Vienna Airport and eliminated choice for airlines wishing to serve the catchment area covering parts of the Slovak Republic, Austria, Hungary and the Czech Republic.
(61)
With regard to the timing of the Agreement, Ryanair explains that the conclusion of the Agreement was preceded by a long phase of preparation and negotiation between Ryanair and BTS, starting at least as early as December 2003. The Agreement was indeed concluded on 5 December 2005, whereas the last day for the submission of bid proposals was 24 January 2006, i.e. more than one and a half months later.
(62)
In addition, Ryanair also explains that it was scheduled to take delivery of 20 aircraft between September 2005 and March 2006, up to four of which were to be dedicated to BTS operations. For these operational reasons, the process of concluding the Agreement could not be put on hold for over 10 months pending the conclusion of privatisation bids and approval by the Anti-Monopoly Office of the Slovak Republic (with a first deadline on 15 August 2006 and an extension of 45 days until October 2006).
4.2.2. Explanations concerning the AIP and its charges for services at the Airport
(63)
In relation to the AIP, Ryanair is of the opinion that this document provides only indications and is not binding on BTS in its negotiations with airlines. Besides this aspect, the AIP itself provides for special discounts and exemptions from its provisions, thus publicising the availability of discounts to be negotiated between airport operators and airlines on a case-by-case basis.
(64)
With regard to the standard parking charge, which applies when an aircraft is parked for more than 2 hours, Ryanair explains that this charge would not apply to it due to the specific nature of its operations and the fact that Bratislava is not a Ryanair ‘base’. Ryanair’s aircraft are never parked at BTS, and because of Ryanair’s fast turnaround process, its aircraft spend only 25 minutes at the Airport each time, and they are never in the specified parking areas.
(65)
With regard to the introduction of new charges, Ryanair is of the opinion that the Commission’s interpretation is misleading, because it suggests that new charges will not apply to Ryanair. However, such charges will simply be collected directly by BTS instead of Ryanair. Ryanair further explains that such charges, if collected directly by Ryanair, would have adverse effects on its business model and passenger numbers.
(66)
Furthermore, Ryanair states that if certain standard charges applicable at the Airport are eliminated or decreased, it would not enjoy any benefit since the combined landing, airport departure and handling charge provided for under the Agreement does not decrease when standard charges at the Airport decrease. This was a risk assumed by Ryanair when the Agreement was concluded. This actually happened, as the landing charge was reduced by 7,1 % in January 2008. In addition, the Agreement provides for an annual increase of […] in the service charge.
4.2.3. The Agreement meets the market economy investor principle
(67)
Ryanair disputes the preliminary findings of the Commission that, because the Slovak authorities mentioned regional economic development, possible incoming investment and other secondary and tertiary economic effects among the advantages provided by the Agreement, the market economy investor principle has not been fulfilled.
(68)
It further explains that BTS’s main objective was to optimise its passenger volumes and compete in the market for airport services, and that BTS based its decision on continuously updated financial analyses, which can also be confirmed by exchanges of letters between BTS and Ryanair during a long negotiation process starting in December 2003. Ryanair states that, for example, a letter from BTS dated 12 December 2003 containing an interim offer of discounts indicates that the Airport had conducted financial cost-benefit analyses. Ryanair further states that an e-mail of 16 November 2004 also indicates that BTS had analysed the risks associated with the Agreement; for instance, it agreed to include in the service charge only those charges under its control (e.g. it did not include air traffic control in its service charge as BTS does not control it). Ryanair also gives the example that it provided BTS with a UNISYS report concerning the ability of secondary airports to capture some traffic from primary airports.
(69)
Ryanair explains that the charges it paid to BTS are similar to or even higher than those at other comparable airports (e.g. privately owned Blackpool Airport in the United Kingdom). Ryanair also argues that it has provided the Commission with examples of charges at numerous privately owned and privately financed airports at various stages during the administrative and judicial phases of the Charleroi case, and refers to the arguments, data, and conclusions provided in that case for further explanations. In its opinion there is no need for a complex economic assessment; a simple comparison of airport charges at different privately owned and financed airports should be sufficient.
(70)
Ryanair is also of the opinion that, as it has committed itself to operate at least […] routes per day - the equivalent of over 2 million passengers per annum assuming a 75 % load factor - from Bratislava Airport starting on 1 July 2009, it provided a stable income stream for the Airport. In addition, Ryanair points out that this income was guaranteed by a penalty which would amount to charges for […] routes per day if Ryanair did not meet its commitment. Therefore, in its opinion the lower charges at the Airport were applied with a view to an economic advantage, and it is thus in line with the market economy investor principle.
(71)
In addition, the service charge for new destinations is based on flight frequencies (seven flights per week) and equals over 100 000 passengers per year (assuming a 75 % load factor). Ryanair explains that the discounts for new destinations at the time of its observations only applied to the route between Bratislava and Frankfurt-Hahn. It also argues that discounts granted by BTS for new destinations are in line with industry practice, as many privately and publicly owned airports apply the same, or a higher, level of discounts for new destinations.
(72)
Ryanair further explains that, by providing the Airport with a large number of passengers, it helps to maximise its non-aviation revenues and terminal utilisation. Non-aviation revenue includes parking charges for passengers, revenue from businesses attached to the airport such as car rental, shops, banks, post office and restaurants, revenue for shuttle services to neighbouring cities and advertising revenue. In addition, Ryanair is of the opinion that the Airport can generate additional revenue from ticketing and excess baggage charges and save costs by using different check-in procedures.
(73)
Ryanair rejects the complainant’s assumptions that the load factor of its aircraft allegedly amounts to 84 % and that the maximum take-off mass per plane is 69,9 tonnes. Those assumptions are exaggerated in order to magnify the amount of the alleged advantage granted to Ryanair. Ryanair further explains that its assumption for the load factor per aircraft when it was negotiating with BTS was 75-80 %, which was confirmed by ex-post statistics. The maximum take-off mass of Ryanair aircraft operating to and from Bratislava Airport is 67 tonnes.
(74)
In Ryanair’s view, it was foreseeable as early as 2005 that the Agreement concluded with BTS would make the Airport more profitable and thus provide an added value to shareholders. It has concluded similar contracts with other privately and publicly owned airports such as London-Stansted, London-Luton, Prestwick or Hahn.
4.2.4. Absence of selectivity
(75)
In the opinion of Ryanair, the measure lacks selectivity because the Agreement was concluded on a non-exclusive basis and any other air carrier could have obtained the same conditions granted to Ryanair on the basis of the commitments. It is also of the opinion that the Agreement provides for transparency and non-discrimination in the application of the financial and operational conditions offered to other airlines.
(76)
Ryanair further explains that, at the time the Agreement was concluded, the Airport operated below its available capacity and that it would have been able to accommodate competitors of Ryanair. It further states that Sky Europe enjoyed at least the same conditions as Ryanair as its commitments were comparable.
4.2.5. Effect on trade between Member States and distortion of competition
(77)
Ryanair disputes the Commission’s preliminary findings in the opening of the procedure in relation to the distortion of competition and the effect on trade between Member States. In particular, it objects to the fact that the Commission did not analyse arrangements between competing airlines and airports.
5. COMMENTS FROM SLOVAKIA ON THIRD-PARTY COMMENTS
(78)
The Slovak authorities began their observations by stating that they fully support the arguments of BTS and Ryanair that the Agreement does not involve State aid to Ryanair and that it was concluded on market terms.
(79)
With regard to the imputability of the Agreement to the State, they stress in particular that the Agreement was concluded only after a long-term negotiation process between the Airport management and Ryanair. In the opinion of the Slovak authorities, if the Agreement were imputable to the State the negotiation process would have been faster. It is also evident that the Agreement was not concluded under pressure. They also argue that the Airport is independent of local and regional authorities and that it was able to finance its operating costs from revenue without intervention from the authorities.
(80)
The Slovak authorities also argue that BTS acted as a market investor with the objective of obtaining the most favourable contract terms for the Airport. BTS had recently submitted to the Ministry of Finance a report compiled in late 2003 by a consultancy firm in relation to the low-cost strategy at the airport. The purpose of this report was to describe the activities of and trends in the low-cost airline business worldwide and in central Europe in order to provide the airport management with recommendations on prices, marketing and financial issues. Another analysis was conducted in April 2004 in order to assess passenger growth at the airport and pricing possibilities.
(81)
The Slovak authorities confirm that BTS also applied or offered discounts for new scheduled destinations to other carriers, such as Easyjet and Sky Europe, and that the Agreement with Ryanair did not constitute a special derogation. They also state that the definition of ‘new destination’ was comparable to the one used with other carriers and in no respect was Ryanair favoured.
(82)
The Slovak authorities further explain that, although they are of the opinion that the Agreement with Ryanair does not involve State aid, they have asked the Airport for an ex-post analysis of the profitability of the Agreement. The result of this analysis was that the Airport achieved 8,5 %-10 % profitability from the Agreement in 2006-2007.
6. EXISTENCE OF AID
6.1. State aid under Article 107(1) TFEU
(83)
Under Article 107(1) TFEU, ‘any aid granted by a Member State or through State resources in any form whatsoever which distorts or threatens to distort competition by favouring certain undertakings or the production of certain goods shall, in so far as it affects trade between Member States, be incompatible with the internal market.’
(84)
The criteria laid down in Article 107(1) TFEU are cumulative. Therefore, in order to determine whether the measure in question constitutes State aid within the meaning of Article 107(1) TFEU, all of the following conditions need to be met. Specifically, the financial support should:
-
be granted by the State or through State resources,
-
favour certain undertakings or the production of certain goods,
-
distort or threaten to distort competition,
-
affect trade between Member States.
(85)
In the present case, the Slovak authorities have argued that BTS has acted as a market economy investor would have done in a similar situation. If this is the case, Ryanair has not been favoured by the Agreement and no State aid is involved.
6.2. Application of the market economy investor principle
(86)
In assessing whether the Agreement was concluded under normal market conditions, the Commission has to examine whether, in similar circumstances, a private investor operating under normal market economy conditions would have entered into the same or similar commercial arrangements as BTS (20).
(87)
Both interested parties (i.e. BTS and Ryanair) claim that other privately and publicly owned airports also grant passenger-volume-based discounts and discounts for new destinations while expecting an increase in their profitability and improved utilisation of infrastructure. Thus they are of the opinion that the Commission should limit its private market investor test to comparing the charges contained in the Agreement with airport charges applied to low-cost airlines at other European airports. In particular, Ryanair submits that charges at Bratislava Airport are similar to or even higher than those at other comparable airports (e. g. Blackpool Airport in the United Kingdom).
(88)
In this regard, the Commission considers that even though the airport charges applied at other European airports may provide a very general benchmark for the pricing of airport services, they do not allow for the conclusion that BTS acted as a private investor in this particular case.
(89)
The revenue and cost structure differs from airport to airport. They depend in particular on the airport’s state of development, especially with regard to passenger numbers, airlines operating from/to the airport, available capacity (overcapacity, capacity restrictions or the need for new investment due to an increase in passenger volumes), the useful life of infrastructure, the need for replacement investment, depreciation levels, the regulatory burden, which may vary from Member State to Member State, and historical debts and obligations. The Commission also observes that agreements with airlines may be different at each airport, and that they may also depend on the attractiveness of its location for the airline in question and its competitors, the size of the catchment area and the level of services offered.
(90)
Therefore, the Commission considers that the question of whether the Agreement involves an advantage to Ryanair has to be assessed in relation to the conditions at Bratislava airport, and not by a simple comparison of the charges applied at other European airports whose characteristics may be different.
(91)
According to the principles established in case law, the Commission has to compare the conduct of BTS to a private operator guided by the prospect of profitability (21). BTS claims that it acted rationally, but did not provide the Commission with a formalised written report.
(92)
The Court declared in the Stardust Marine judgment that ‘[…] in order to examine whether or not the State has adopted the conduct of a prudent investor operating in a market economy, it is necessary to place oneself in the context of the period during which the financial support measures were taken in order to assess the economic rationality of the State’s conduct, and thus to refrain from any assessment based on a later situation’ (22).
(93)
In order to be able to apply the private investor test, the Commission has to place itself at the time the Agreement was signed. BTS signed the Agreement with Ryanair on 5 December 2005. The Commission must also base its assessment on the information and assumptions available to the operator when the Agreement was signed.
(94)
According to the Agreement (Article 2.1), Ryanair committed to operate at least […] existing destinations per day from mid-2009. After mid-2009, much lower growth was expected. Article 6.4 of the Agreement lays down that the price for a standard destination amounts to EUR […] per turnaround (arrival and departure), increasing at […] per year.
(95)
According to Article 6.3 of the Agreement, new destinations would be charged at a reduced rate of EUR […] per aircraft turnaround and would increase by […] per year during a six-year period starting from the introduction of the new destination. The information provided by the airport also shows that new destinations would represent a maximum of 20 % of the total destinations served by Ryanair (23).
(96)
On this basis, the airport was able to forecast the revenue generated by the Agreement with Ryanair. It should be stressed that such revenue only takes into account aviation revenue and not indirect revenue.
(97)
The Commission further notes that, due to Ryanair’s commitment to operate at least […] routes per day from the Airport, BTS was able to expect stable and foreseeable revenue during the duration of the Agreement.
(98)
The Airport’s costs over the duration of the Agreement were estimated by projecting the actual costs (24) forward to 2016 on the basis of its business plan.
(99)
A part of each relevant cost position was attributed to the Agreement according to keys representing passenger share (29,38 % of passengers in 2007), aircraft movements at the airport (12,69 % in 2007), maximum take-off mass (19,07 %), administrative needs attributable to the Agreement and also the level of services offered to Ryanair. The yearly projected allocation keys are detailed below in Table 4, which shows that the share of costs born by Ryanair increases with its significance in the airport’s activity.
Table 4
Cost allocation keys for the Ryanair agreement 2008-2016
Cost allocation keys
2008
2009
2010
2011
2012
2013
2014
2015
2016
Passangers
[…]
[…]
[…]
[…]
[…]
[…]
[…]
[…]
[…]
Maximum take-off mass
[…]
[…]
[…]
[…]
[…]
[…]
[…]
[…]
[…]
Aircraft movements at the airport
[…]
[…]
[…]
[…]
[…]
[…]
[…]
[…]
[…]
Administration
[…]
[…]
[…]
[…]
[…]
[…]
[…]
[…]
[…]
(100)
The costs were thereafter projected until 2016, making the following key assumptions on the basis of the airport’s business plan:
-
Annual depreciation is based on the investment programme, which includes the cost of a new terminal and increases sharply during the construction of the new terminal between 2009 and 2012.
-
Personnel costs are based on the assumption that the number of employees will increase at a rate of 50 % of the increase in passengers per year multiplied by an average salary per employee multiplied by an annual inflation rate.
-
Energy consumption (gas, electricity) and water costs are assumed to increase by 25 % of the increase in projected passenger numbers multiplied by the annual inflation rate, plus a one-off increase of 35 % in 2010 to reflect the opening of Phase 1 of the new terminal. There is no corresponding increase for the opening of Phase 2 of the new terminal in 2012 because in Phase 2 an existing building is replaced by a new building, so there is no net increase in energy use.
-
Repair and maintenance costs are based on an assumed rate of increase of 50 % of the rate of increase in projected passenger numbers multiplied by the annual inflation rate.
-
Annual inflation is based on the Slovak Ministry of Finance projection.
-
The exchange rate used to convert SKK to euro is fixed at the rate on the date the Agreement was signed (37,798 SKK/EUR).
(101)
The following table summarises the revenue and cost calculations in relation to the Agreement and its contribution to BTS profits during its lifetime. These calculations are based on the business plan provided by BTS management and the assumptions set out above.
Table 5
Profitability analysis of the Ryanair agreement 2005-2016
(EUR thousand)
2006
2007
2008
2009
2010
2011
2012
2013
2014
2015
2016
Revenues
[…]
[…]
[…]
[…]
[…]
[…]
[…]
[…]
[…]
[…]
[…]
Costs
[…]
[…]
[…]
[…]
[…]
[…]
[…]
[…]
[…]
[…]
[…]
Profit/Loss
[…]
[…]
[…]
[…]
[…]
[…]
[…]
[…]
[…]
[…]
[…]
Profit margin
[…]
[…]
[…]
[…]
[…]
[…]
[…]
[…]
[…]
[…]
[…]
NPV (25) of profits
[…]
Average profit margin
[…]
(102)
The Commission notes that, over its lifetime, the Agreement with Ryanair generates a positive contribution to BTS’s financial results, with an NPV for profits amounting to […] million. BTS’s overall NPV was also expected to be positive over the period of the Agreement.
(103)
The Commission also observes that the Agreement covers all attributable costs. The ‘full cost approach’ in this case includes depreciation costs for airport infrastructure and all other operating costs; it also includes costs for historical infrastructure (26) and also costs for security and safety measures which may represent measures falling within the public policy remit and would not be an economic activity within the meaning of Article 107(1) TFEU. Also, non-aviation revenues attributable to the Agreement were not taken into account. Thus the NPV of profits appears to have been underestimated, and the Agreement’s positive contribution should be higher.
(104)
The Commission further observes that in 2010 and 2011 - in the years when the first part of the new terminal (27) is to begin operation and additional capacity will be created at the airport - its costs (particularly depreciation and energy costs) will increase by 33 %-38 % in comparison to 2008 and will have a negative impact on results during these first 2 years.
(105)
Table 5 shows that the average profit margin (28) (or ‘return on sales’) under the Agreement amounts to […] and is comparable to average profit margins at other EU airports in 2006 and 2007 (see table below).
Table 6
Profit margin at other EU airports in 2006 and 2007
(in %)
Airports
Profit margin 2006
Profit margin 2007
Fraport
10,51
8,60
Aéroports de Paris
7,65
14,04
Flughafen München
6,73
4,98
Manchester Airports Group
17,69
20,42
Aeroporti di Roma
10,63
3,21
Flughafen Wien
17,62
16,77
SEA Aeroporti di Milano
7,44
5,90
Flughafen Düsseldorf
5,47
10,15
Aeroportos de Portugal
16,71
16,10
Finavia
8,85
10,82
Flughafen Köln-Bonn
1,98
2,00
Flughafen Berlin-Schönefeld
2,07
7,16
Hannover-Langenhagen
0,00
5,61
Lyon-Saint Exupéry
0,00
0,42
Peel Airports
-3,64
2,93
Average profit margin
7,31
8,61
(106)
The Commission’s expert has also carried out a sensitivity analysis of the Net Present Value of the Agreement in order to examine the impact of a variation in depreciation and energy costs - in the event that these costs were underestimated - on the profitability of the Agreement.
Table 7
Sensitivity analysis (increase in depreciation and energy costs) of the profitability of the Ryanair Agreement
Different scenarios
Net present value of the Ryanair contract (EUR thousand)
Basic scenario
[…]
Alternative scenario 1:
Increase in depreciation and energy costs by 10 % in 2013 and 15 % in 2014-2016
[…]
Alternative scenario 2:
Increase in depreciation and energy costs by 15 % in 2013 and 25 % in 2014 - 2016
[…]
(107)
Notwithstanding variations in the sensitivity analysis of between 10 % and 25 %, the contribution of the Agreement to BTS’s net profit remains positive and is between EUR […] million and EUR […] million.
(108)
In the light of the above, the Commission considers that BTS’s decision to conclude an Agreement with Ryanair was rational on the basis of the above-mentioned cost-benefit analysis.
(109)
The Commission deems it important to view the Agreement in the context of BTS’s prior activity and its market position at the time.
(110)
The Commission further notes that, according to the Charleroi Judgment (29), when assessing the measures at issue, it has to examine all the relevant features of the measures and their context.
(111)
In the present case, when assessing the rationale of BTS’s decision to conclude the Agreement, other features which should be examined besides the cost-benefit analysis are the diversification of airlines operating from the Airport (and thus the reduction of risk), better allocation of resources and a reduction in overcapacity.
(112)
As the Slovak Republic does not currently have a national flag carrier and its former air carrier was small (6 % of passengers at BTS in 2005), and in other Member States comparable airlines still carry at least 40 % of the passengers at comparable airports, BTS was highly dependent on a privately owned airline, Sky Europe, which carried approximately 73 % of the passengers at the Airport in 2005. It should be noted that, due to the Agreement with Ryanair, BTS was indeed able to diversify its customer base, and was thus able to reduce the risk which arose during 2009 as Sky Europe went into bankruptcy.
(113)
In addition, BTS has also reduced the risk of creating overcapacity by replacing the old terminal with a new and bigger terminal. Optimising and making more regular use of infrastructure has also made it possible to reduce regular AIP charges as from 2008. Moreover, BTS did not include in the so-called ‘service charge’ charges which were not under its control, such as air traffic control charges.
(114)
Furthermore, Ryanair advertises Bratislava as one of its destinations on its website. However, BTS does not pay for this publicity, even though it cannot be excluded that a certain value could be attached to it.
(115)
The Commission notes that all these qualitative elements have also contributed positively to BTS’s operational and financial situation and increased its market value for shareholders. They therefore complement the above-mentioned cost-benefit analysis.
(116)
In view of the above, the Commission concludes that, at the time the Ryanair Agreement was signed, BTS considered that the Agreement would make the airport more profitable. The Commission can therefore accept that, under similar circumstances, a market economy operator would have decided to conclude a similar agreement with Ryanair as BTS.
(117)
As at least one of the cumulative criteria pursuant to Article 107(1) TFEU is not met, the Commission considers that the Agreement does not constitute State aid within the meaning of Article 107(1) TFEU,
HAS ADOPTED THIS DECISION:
Article 1
The Agreement of 5 December 2005 concluded between Letisko M. R. Štefánika - Airport Bratislava, a.s. and Ryanair Ltd does not constitute State aid within the meaning of Article 107(1) TFEU.
Article 2
This Decision is addressed to the Slovak Republic.
Done at Brussels, 27 January 2010.
|
[
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] |
COMMISSION DECISION
of 16 July 2008
relating to State aid C 29/04 (ex N 328/03) that Italy is considering granting to the Villasor sugar refinery owned by Sadam ISZ
(notified under document C(2008) 3531)
(Only the Italian text is authentic)
(2009/704/EC)
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
having regard to the Treaty establishing the European Community and, in particular, Article 88(2)(1) thereof,
having given interested parties notice to submit their comments pursuant to that Article, and having regard to those comments,
Whereas:
I. PROCEDURE
(1)
By letter dated 22 July 2003, Italy notified the Commission of the aid to the Villasor sugar refinery owned by Sadam ISZ. By letters dated 19 September 2003 and 30 March 2004, Italy submitted the additional information to the Commission.
(2)
By letter dated 8 September 2004, the Commission informed Italy of its decision to initiate the procedure referred to in Article 88(2) of the EC Treaty in respect of the aid in question.
(3)
By letters dated 13 October 2004 and 7 April 2005, Italy forwarded to the Commission the Italian authorities’ comments concerning the decision to initiate the formal investigation procedure.
(4)
The Commission decision to initiate the procedure was published in the Official Journal of the European Union (1). The Commission called on interested parties to submit their comments on the aid in question.
(5)
The Commission received comments on this subject from interested parties. It forwarded them to Italy, giving it the opportunity to comment on them, and received Italy’s comments by letter dated 18 May 2005.
(6)
By letters dated 31 January 2008 and 14 April 2008, the Italian authorities forwarded to the Commission the information requested by letter dated 29 March 2007.
II. DESCRIPTION
(7)
The recipient firm - the Villasor sugar refinery owned by Sadam ISZ - is a sugar beet processing facility. It is the only one in Sardinia (one of the largest islands in the Mediterranean).
(8)
The Italian authorities are making EUR 3,5 million available to the refinery in order partially to compensate it for the losses it sustained following the slump in sugar production caused by the fall in sugar beet supplies following the drought in 2001-2002.
(9)
Regarding sugar beet production, the competent authorities provided data showing a decrease in regional production and, consequently, of sugar beet supplies. Compared with the 1998-2000 reference period, the fall was 39 % in 2001 and 68 % in 2002 (2).
(10)
The competent authorities calculated the loss sustained by the Villasor refinery on the basis of the data extracted from the company’s balance sheets for the financial years 1998 to 2002 and estimated it at EUR 6 858 448 (3). The method for calculating the loss was as follows. The authorities calculated the proportion of the fixed costs in relation to one tonne of sugar during one reference period (1998-2000) and compared this figure to the ratio of fixed costs per tonne of sugar during the years 2001 and 2002. They viewed the following as fixed costs: permanent staff, handling (services provided by third parties, and warehousing levies), general expenditure, depreciation and financial charges (4). During the reference period, the effect of fixed costs on the product was EUR 166,61/tonne (5). For 2001-2002, the same calculation process gave rise to the following results: the effect of fixed costs on the product in 2001 was EUR 287,95/tonne (6) and, in 2002, EUR 569,18/tonne (7). The major effect of the fixed costs in relation to the reference period was obtained by subtracting the effect of the fixed costs for the reference period from the effect of the fixed costs for 2001 and 2002. The result in 2001 was EUR 121,34/tonne and, in 2002, EUR 402,58/tonne (8). In order to calculate the total loss sustained, total sugar production in 2001 and 2002 was multiplied by the index shown above. In 2001, the loss was quantified at EUR 2 427 278 and, in 2002, at EUR 4 431 170 (9), i.e. a total of EUR 6 858 448.
(11)
The amount of EUR 3,5 million granted by the Italian authorities would therefore correspond to 51 % of the loss sustained. The Italian authorities explained that the amount of the aid was dictated by budgetary imperatives.
(12)
This aid is not to be paid in conjunction with other forms of aid.
(13)
In order to demonstrate the exceptional nature of the drought affecting Sardinia in 2001-2002, the Italian authorities submitted a dossier, drawn up by Sardinia’s Regional Agro-Meteorological Service (Italian acronym: SAR) (10). These data indicate, for example, the duration of the drought and the level of water reserves. There are also data concerning the agro-climatological situation in Sardinia in 2001-2002.
(14)
The Italian authorities also indicated that sugar beet growing had benefited from aid on a number of occasions. During the period 1990-2002, aid had been granted in 1995, 2000, 2001 and 2002.
(15)
The Italian authorities considered the aid to be compatible with the common market under the terms of point 11.3.1 of the Community Guidelines for State aid in the agriculture sector for the period 2000-2006 (henceforth referred to as the Guidelines) (11) since, in their view, such aid is designed to make good the loss sustained by the sugar refinery following a decrease in sugar beet production caused by an adverse weather condition assimilated to a natural disaster.
(16)
The Italian authorities considered that this interpretation was in line with Commission practice in such matters (12) in cases where primary agricultural production and the procedures of agricultural processing were closely interdependent, and particularly in an instance where the agricultural processing undertaking concerned had no alternative sources of supply available to it.
(17)
With this in view, the Italian authorities maintained that, in the beet-based sugar industry, the agricultural and industrial components were closely linked and interdependent. The existence of a sugar beet processing facility depends on there being an appropriate supply basin, and the Villasor refinery’s activity consists exclusively in converting the beet produced in Sardinia’s ‘supply basin’ into sugar. The Italian authorities maintain that, because of its physiological characteristics, sugar beet grown in the Mediterranean basin has to be harvested over the short period of time in which the sugar content is at its highest. It also has to be transported to the processing facility quickly (within 36 hours of being harvested), otherwise it loses its sugar content and is attacked by fungi, making it unusable. For these reasons, supply basins are usually situated within a radius of 80 to 100 kilometres from processing facilities, and harvesting and processing periods are very short. The source of supply closest to the Villasor refinery is in continental Italy, more than 250 km away (including 180 km across the sea).
(18)
The Italian authorities pointed out that sugar production is regulated at Community level by the common organisation of the markets in the sugar sector (sugar CMO Regulation) (13). This stipulates that, in order to benefit from prices and revenues guaranteed by the CMO, refineries must enter into contracts with their supply basin’s sugar beet producers for the ‘A + B’ sugar production quotas granted to them by the State. Sugar produced over and above the ‘A + B’ quotas can neither benefit from internal support measures nor be freely marketed within the common market. As a result, refineries and the farms that normally supply them factor into their cultivation contracts acreages that produce no more than the ‘A + B’ quotas granted by the State to the refineries. In this context, it is difficult for a refinery to obtain supplies from a sugar beet production basin other than its own because of the limited quantity of sugar beet available for processing outside the cultivation contracts and because of the need for supply agreements between sugar processing companies. In the Mediterranean Basin, moreover, alternative sugar beet basins have to be situated sufficiently close by to guarantee the supply of a usable product.
(19)
The Italian authorities were also willing to consider the possibility of the Villasor facility having been able to find its raw material for processing somewhere else, but the refinery is so far away from the production areas in continental Italy as to make it uneconomic to transport the sugar beet, quite apart from the fact that the raw material would arrive at its destination in an unusable condition.
(20)
The Italian authorities provided the Commission with simulations of the periods required for transporting sugar beet from an ‘alternative’ basin in continental Italy and of the costs of doing so. The period required for transporting sugar beet to Sardinia would be in the region of 2,5 days as from the time of loading. Given that the sugar beet necessarily has to be processed within 36 hours (1,5 days) of harvesting, it would arrive at its destination in an unusable condition. The cost of such an operation, as calculated by the competent authorities, would be approximately EUR 10 188 000 for the two periods.
(21)
With regard, specifically, to the drought and to the drought-related water management policy conducted in Sardinia, the Italian authorities indicated that a water emergency had been declared in 1995 and that a special administrator (Commissario Governativo per l'Emergenza Idrica) had been appointed, with special powers for managing water resources and for having urgent infrastructure work done.
(22)
The Italian authorities also indicated that Sardinia’s regional development plan for 2000 to 2006 provided for specific measures for cultivating sugar beet. These measures included hydro-agricultural land development, the acquisition of irrigation equipment and installations by farms and the introduction of more modern machinery and of machinery for protecting plants and facilitating their fertilisation.
III. GROUNDS FOR INITIATING THE PROCEDURE
(23)
The Commission initiated the procedure laid down by Article 88(2) of the EC Treaty because it doubted that the measure was compatible with Article 87(2)(b) of the Treaty, according to which aid to make good the damage caused by natural disasters or exceptional occurrences is compatible with the common market. Because they constitute exceptions from the general principle of the incompatibility of State aid with the common market, laid down by Article 87(1) of the Treaty, the Commission has a restrictive interpretation of the notion of ‘natural disaster’ contained in Article 87(2)(b). Until now, the Commission has accepted that earthquakes, avalanches, landslides and floods may constitute natural disasters.
(24)
The Commission has consistently held that adverse weather conditions such as frost, hail, ice, rain or drought cannot of themselves be regarded as natural disasters within the meaning of Article 87(2)(b). However, because of the damage that such events may cause to agricultural production or the means of agricultural production, the Commission has accepted that such events may be treated as natural disasters once the level of damage reaches a certain threshold (which has been fixed at 20 % of normal production in less-favoured regions and 30 % in other regions). Point 11.3 of the Guidelines (14) states that aid designed to make good losses resulting from adverse weather conditions may only be paid for farmers or to a producer organisation of which the farmer is a member. The Commission regards the aid that comes under point 11.3 as being compatible with the common market under Article 87(3)(c) of the Treaty, provided that certain conditions are complied with.
(25)
The Commission has consistently held that the provisions of point 11.3 of the Guidelines are not applicable to agricultural processing undertakings that, in its view, have the flexibility necessary for managing their supplies. This may of course result in additional raw material costs and/or a loss of profitability, but it does not warrant the direct application of the rules applicable to agricultural production.
(26)
Since the Italian authorities have proposed no other legal basis for the assessment and possible approval of the aid, the Commission could not, at this stage of the procedure, exclude the possibility of the anticipated aid constituting operating aid, that is to say a form of aid that seeks to relieve enterprises of the costs they would normally have to bear as part of their day-to-day management or normal activities.
(27)
Moreover, the information provided by the Italian authorities and the information available to the Commission appeared to suggest that Sadam ISZ and the companies to which it belonged directly or indirectly - in particular, Società Adriatica Marchigiana (SAM) (15) and FINBIETICOLA Spa (16) - could have absorbed the reduction in the facility’s profitability.
(28)
Finally, even if it had been considered acceptable (which was not the case at this stage of the procedure) to apply to Sadam ISZ the principle governing the payment of compensation under point 11.3 of the Guidelines, the reference period chosen by the Italian authorities for calculating the aid would have been incorrect.
IV. COMMENTS FROM INTERESTED PARTIES
(29)
When the procedure was initiated, the Commission received comments from Sadam ISZ (17), the President of Sardinia Region (18) and Brumar Srl (19).
(30)
In its comments, Sadam ISZ repeated the reasons, expressed in points 12 to 36 of the letter initiating the formal investigation procedure, that had led the Italian authorities to consider granting the aid: the exceptional nature of the drought; the impossibility of obtaining supplies from other basins due to the particular structure of the organisation of the market in sugar; the impossibility of obtaining suitable transport due to the refinery’s island location; and the importance of the agricultural sugar processing industry for Sardinia’s economy. It also provided information about the changing ownership of Sadam ISZ, which is at present owned exclusively by the Eridania Sadam group, with Finbieticola’s share having also been transferred to the Eridania Sadam group in October 2004 since Sviluppo Italia SpA’s withdrawal in December 2003. Sadam ISZ provided a copy of the agreement concluded between the various private and public authorities with a view to guaranteeing the continued production of sugar beet in Sardinia. Within this framework, Sardinia region committed itself to taking every initiative necessary for recommencing investment in the sugar beet sector - in particular, in water resource management - and to losing no time in obtaining the Commission’s authorisation of the aforesaid EUR 3,5 million in aid to offset the losses due to the drought.
(31)
Sadam ISZ considers that what it produces has no influence at all on the development of the European market, not only because it represents only 0,2 % of that market but also because 98 % of its production is intended for the Sardinian market, covering almost 50 % of that market’s needs, whereas the Eridania Sadam group produces 35 % of Italian sugar, equal to 1,7 % of European sugar, and has 23 % of the national market, equal to 2,15 % of the European market.
(32)
The President of Sardinia Region emphasised the quite exceptional nature of the situation characterising the years 2001-2002, stating that it could in no way constitute a precedent applicable in the future to other situations. The region’s President stressed the bad effects that closure of the only Sardinian refinery would have on the island’s economy, given the need for rational management of agricultural production as a whole (with sugar beet an important rotation crop) and given the importance of the sugar beet industry in Sardinia, the number of farms concerned (1 300 employing approximately 5 000 people) and the number of permanent and seasonal employees at the refinery (83 and almost 200, respectively), not counting the jobs created by the sugar beet industry (for hauliers, enterprises responsible for growing and harvesting the sugar beet and undertakings tasked with handling the facilities). The region’s President pointed out the importance attached by the regional administration to the sugar beet industry and its commitment to safeguarding the industry.
(33)
Brumar Srl stated that the Sadam refinery had not sustained losses since it had had the option of buying sugar in France, Germany, Slovenia and Croatia; that all Italian refineries had increased the price of white sugar by EUR 50 per tonne as from 1 October 2003, with a net profit of EUR 80 million in favour of the five sugar refineries on Italian territory. According to Brumar Srl, Sadam ISZ would have been the main recipient of this profit, given that it is responsible for most of Italy’s sugar production. In its conclusion, Brumar Srl considered that aid should be granted both to sugar beet producers (to offset the losses sustained due to the failed harvest caused by the drought) and to the workers who had not been employed by the processing facilities.
V. COMMENTS MADE BY ITALY
(34)
The Italian authorities sent their comments when the procedure was initiated by letters dated 13 October 2004 and 7 April 2005 and submitted their comments in response to the letter from Brumar Srl by letter dated 17 May 2005.
(35)
The Italian authorities contested Brumar Srl’s comments in their entirety, deeming them to be of no relevance at all to the case in question, given that the Villasor refinery had never imported sugar from the countries listed by Brumar Srl and given that the increase in the prices of white sugar applied to Italy’s production as a whole and related to the marketing year 2003, postdating the years for which the aid was to be granted. Finally, the authorities contested the calculations of the presumed profits made in 2003 by Italian sugar companies in general and by the Eridania Sadam group in particular. The Eridania Sadam group, of which Sadam ISZ is a part, produced 34 % of Italian sugar in 2003.
(36)
In their letter of 13 October 2004, the Italian authorities acknowledged that the Commission had been most thorough in presenting all the factors in the case and all the data supplied during the phase prior to the investigation procedure being initiated, particularly in relation to the legal basis, the compensatory nature of the measure proposed, the means of calculating the aid, the legal basis important for authorising the measure, the interdependence of the sugar beet industry’s agricultural and industrial components, the impossibility of obtaining supplies from other production basins for Sardinia-based processing, and the importance of the sugar beet industry for Sardinia’s economy.
(37)
The Italian authorities consider that the aid measure would have no impact on intra-Community trade, as its effects would not be felt beyond the region. Ninety-eight per cent of what is produced by the Villasor refinery is absorbed by the local market and is not therefore in competition with the production of other Community undertakings, whether in continental Italy’s market or in the Community or international market. The Italian authorities consider that the Commission, in accordance with its Draft Communication on new guidelines for the evaluation of State aid with limited effects on intra-Community trade, should attach greater importance to the economic impact of the intervention concerned, in view in particular of its limited impact on trade. According to the Italian authorities, the Commission’s statement (20) to the effect that Italy has an important position in sugar production should at least be seen in relation to the references to Italy’s being only the fourth largest EU sugar producer and to the Eridania Sadam group’s having, in this context, a market share of slightly more than 1,5 % of the European market, while Sadam ISZ’s production amounted to 0,06 % (data for the marketing year 2002).
(38)
Regarding the legal basis for the measure, the Italian authorities cite a series of previous decisions by the Commission (in particular, State aid cases N 83/2000, N 185/2000, N 657/02 and N 729/02), in which the Commission authorised aid in the agricultural and agricultural processing sector on the basis of Article 87(2)(b) of the Treaty and in the light of the implementation criteria specified in point 11.3 of the Guidelines, maintaining that, in the case in question, the implementation criteria had been met.
(39)
The Italian authorities also draw the Commission’s attention to point 3.4 of the Guidelines which stipulates that the fact that an aid measure is not in all points comparable to one of the possible cases listed in the Guidelines themselves does not exonerate the Commission from carrying out an examination on a case-by-case basis, taking into account the principles set out in Articles 87, 88 and 89 of the Treaty and the Community’s common agricultural and rural development policies. Accordingly, the Italian authorities consider that if the Commission finds that Article 87(2)(b) is not applicable to the proposed measure, the measure should be allowed under Article 87(3)(c).
(40)
According to the Italian authorities, the proposed intervention would enable the refinery partially to offset the large losses sustained as a result of the absence of sugar production due to the lack of raw materials to be processed following the severe drought of 2001-2002. In Sardinia, a normal sugar beet harvest would enable the processing facility to achieve financial equilibrium. The support provided, again characterised as contingent and exceptional by the Italian authorities, would also allow completion of the whole restructuring project launched in 1999 and involving major investment at industrial and agricultural level (21) (see measure 4.9 N in the regional development plan for Sardinia approved by the Commission), with benefits for the economic development of the region as a whole.
(41)
The Italian authorities maintain that the reference to the Sadam Eridania group’s internal relations are not at all relevant to the assessment of the case in hand. In response to the large trading deficit in 2003, the Sadam Eridania group and FINBIETICOLA Spa recapitalised the company in December 2003 with a payment of EUR 5 039 393, thereby honouring their obligations towards the company they controlled, given the normal business risks borne by Sadam ISZ in 2003 (management year/normal production). Following this recapitalisation, Sviluppo Italia - the public shareholder - withdrew as it had not taken part in the recapitalisation. The Italian authorities do not consider that the controlling company might have an obligation, in the context of prudent planning of the group’s business activities, to compensate by financial transfers within the group for losses caused by an event of an exceptional and unforeseeable nature. The Italian authorities maintain that the supervising shareholders’ responsibility has to be limited to the requirements arising from the undertaking’s normal activities.
(42)
With regard, finally, to the reference period established for calculating the compensation, the Italian authorities consider that they have complied with the principles laid down in point 11.3.2 of the Guidelines. Moreover, the amount of the difference between the value of the loss in fact borne by the company (EUR 6 858 448) and the amount of the aid proposed (EUR 3,5 million) excludes excessive compensation. The Italian authorities point out that the Commission has already accepted methods of calculating loss that are different from those indicated in the Guidelines, provided that the methods adopted were not in danger of providing excessive compensation for the losses sustained (22).
(43)
In their latest letters of 2008, the Italian authorities have provided additional details at the Commission’s request. In particular, the Italian authorities provided data (expressed in tonnes) on the subject of sugar production. These are presented in the table below:
Marketing year
Villasor prod.
Sadam group prod.
‘A + B’ quota, Sadam group
Deficit/excess
1999/2000
34 310,13
334 851,41
308 119,70
26 731,71
2000/2001
26 608,50
290 403,52
298 910,30
-8 506,78
2001/2002
20 004,60
242 879,84
305 996,50
-63 116,66
2002/2003
11 007,06
283 729,55
290 072,50
-6 342,95
2003/2004
9 143,18
284 895,25
533 961,70
- 249 066,45
2004/2005
9 520,30
341 327,21
540 996,50
- 199 669,29
2005/2006
8 193,55
623 281,50
484 356,20
138 925,30
(44)
The Italian authorities also indicated that the Villasor refinery had definitively ceased its activities within the framework of a process of restructuring the sector because of the reform of the sugar CMO. In the light of this, Eridania Sadam submitted a ‘restructuring plan for the Villasor refinery’ to the Ministry of Agricultural, Food and Forestry Policy on 30 April 2007.
(45)
According to the Italian authorities, it will be possible for the aid that has been notified to be incorporated within the process of restructuring the industry and the company - a process that remains vital in terms of safeguarding jobs and outlets for the Sardinian agro-energy industry.
VI. ASSESSMENT OF THE AID
(46)
The measure considered is aid to be granted to a sugar refinery. In accordance with Article 36 of Council Regulation (EC) No 318/2006 of 28 February 2006 on the common organisation of the markets in the sugar sector (23) and, prior to this, Article 45 of Regulation (EC) No 1260/2001, Articles 87, 88 and 89 of the EC Treaty apply to the products that come under these Regulations. Consequently, the sector to which the aid measure relates comes under the Community provisions on State aid.
(47)
Under Article 87(1) of the Treaty, any aid granted by a Member State or through State resources in any form whatsoever which distorts or threatens to distort competition by favouring certain undertakings or the production of certain goods shall, insofar as it affects trade between Member States, be incompatible with the common market.
(48)
The measure in question corresponds to the definition of aid referred to in Article 87(1) of the Treaty, given that it confers an economic advantage (in the form of non-refundable financial aid) to a specified company (Sadam ISZ of Villasor), that it amounts to funding from (regional) public resources and that the aid concerned is likely to affect trade. Moreover, it emerges from the data supplied by Sadam after the investigation procedure had been initiated that the company is active not only in the Italian market but also in the intra-Community market (see recital 31, above). Even if the sugar produced in the Villasor refinery is intended almost exclusively for the Sardinian market, it is no less the case that the aid in question is likely to place a possible competitor in this market from another Member State at a disadvantage.
(49)
According to the case law of the European Court of Justice, an improvement in the competitive position of an undertaking as a result of State aid generally leads to distortion of competition in relation to competing undertakings not receiving such assistance (24). Case law has indicated that the relatively small size of aid or the relatively small size of the company that benefits from it does not as such exclude the possibility that trade between Member States might be affected (25).
(50)
A measure affects trade between Member States when it hinders imports from other Member States or facilitates exports to other Member States. The crucial factor is that intra-Community trade develops, or is in danger of developing, differently because of the measure in question.
(51)
The product benefiting from the aid scheme is the subject of trade between Member States (26) and is therefore exposed to competition.
(52)
The existence of a common organisation of the market in the sugar sector, as indicated in recital 46, is also proof of the importance of intra-Community trade in sugar and of the desire to ensure undistorted conditions of competition on the common market.
(53)
The draft Commission Communication on the new guidelines for the evaluation of State aid with limited effects on intra-Community trade to which the Italian authorities have referred (see recital 37) has not been adopted by the Commission and cannot undermine the foregoing reasoning.
(54)
The criteria concerning the effect on trade and the distortion of competition are therefore fully met.
(55)
The measure is in effect, therefore, State aid within the meaning of Article 87(1) of the EC Treaty.
(56)
The prohibition referred to in Article 87(1) of the EC Treaty is not unconditional. In order to be considered compatible with the common market, the proposed measure must benefit from one of the derogations provided for by Article 87(2) and (3) of the Treaty.
(57)
The provisions of Article 87(2)(b) of the EC Treaty invoked by the Italian authorities - declaring aid to make good the damage caused by natural disasters or exceptional occurrences to be compatible with the common market - are not applicable.
(58)
Since no definitions of the terms ‘exceptional occurrence’ and ‘natural disaster’ are given by the Treaty, it needs to be verified whether the drought affecting Sardinia can be considered a ‘natural disaster’ within the meaning of Article 87(2)(b) of the Treaty. The Commission has always adopted a restrictive interpretation of ‘natural disasters’ and ‘exceptional occurrences’ as referred to in Article 87(2)(b).
(59)
The need for such a restrictive interpretation has constantly been confirmed by the European Court of Justice (27).
(60)
Hitherto, the Commission has accepted earthquakes, avalanches, landslides and floods as natural disasters. Exceptional occurrences that have hitherto been accepted include war, internal disturbances or strikes and, with certain reservations and depending on their extent, major nuclear or industrial accidents and fires that result in widespread loss.
(61)
Because of the inherent difficulties in foreseeing such events, the Commission will continue to evaluate proposals to grant aid in accordance with Article 87(2)(b) on a case-by-case basis, having regard to its previous practice in this field. Such analysis is particularly necessary within the framework of aid to a sensitive sector, such as the sugar sector, where any intervention measure could come up against the measures laid down by the common organisation of the markets.
(62)
The Commission has consistently held that adverse weather conditions such as frost, hail, ice, rain or drought cannot of themselves be regarded as natural disasters within the meaning of Article 87(2)(b) (see point 11.3.1 of the 2000-2006 Guidelines).
(63)
Drought, even on a large scale, has hitherto never been recognised as a natural disaster within the meaning of Article 87(2)(b) of the Treaty.
(64)
In general, an exceptional occurrence must at least present the characteristics of an occurrence that, by its nature and its effect on the operators concerned, is clearly distinguished from usual conditions and is outside the framework of the normal conditions under which a market operates.
(65)
Moreover, the data submitted by Italy lead to the conclusion not that the drought was of an exceptional character but, rather, that it is a recurring phenomenon. Since autumn 1999 (and with the exception of November 2001), there has been a long period of drought. The year 2001-2002 was characterised by lower, but not exceptionally lower, rainfall than average. During the period 1990-2000, there were in fact three years when the drought was more severe (1994-1995, 1998-1999 and 1999-2000). Since 1970 there has apparently been a general trend towards reduced rainfall (28).
(66)
Another factor in the light of which drought may be considered a recurring phenomenon is the fact that a water emergency was declared in Sardinia in 1995 (29) - a state of affairs that ended on 31 December 2004 (30).
(67)
The fact that aid has been granted on four occasions to sugar beet producers to make good the losses due to drought in the period 1990-2002 also indicates that the drought was not exceptional.
(68)
Moreover, production subsequent to the period considered (2001-2002) shows a large decrease in production by the Villasor refinery, even though there was no drought during this period (see table in recital 43).
(69)
As a result, the aid proposed by the Italian authorities cannot be authorised on this legal basis.
(70)
It needs to be examined whether the measure proposed may be considered to be compatible with the common market within the meaning of Article 87(3) of the Treaty. The provisions of point (c) are of more precise relevance. According to these, aid to facilitate the development of certain economic activities or of certain economic areas may be considered to be compatible with the common market where such aid does not adversely affect trading conditions to an extent contrary to the common interest.
(71)
In its interpretation of the aforesaid derogation relating to the agriculture sector, the Commission begins by verifying the applicability of Commission Regulation (EC) No 1/2004 (of 23 December 2003) on the application of Articles 87 and 88 of the EC Treaty to State aid to small and medium-sized enterprises active in the production, processing and marketing of agricultural products (31). If the aforesaid Regulation is inapplicable, the Commission proceeds on the basis of the Guidelines.
(72)
In the case in question, Regulation (EC) No 1/2004 is not applicable since the aid is intended for a processing company as a result of losses due to adverse weather conditions - a state of affairs not anticipated by the Regulation referred to. As a result, the Commission should evaluate the measure on the basis of the Guidelines.
(73)
Point 11.2 of the Guidelines regulates State aid designed to make good the damage caused by natural disasters or exceptional occurrences. This point will not be discussed below as it comes under the application of Article 87(2)(b) of the Treaty, already examined above.
(74)
Point 11.3 of the Guidelines regulates State aid designed to compensate farmers for losses due to adverse weather conditions such as frost, rain, ice or drought - occurrences that cannot of themselves be regarded as natural disasters within the meaning of Article 87(2)(b) of the Treaty.
(75)
When such events cause damage to agricultural production or to the means of agricultural production of a value greater than 20 % of normal production in less-favoured areas and greater than 30 % in other areas, the Commission treats the events as natural disasters and authorises the granting of aid to farmers, designed to offset the losses concerned under Article 87(3)(c) of the Treaty.
(76)
In general, drought may in fact be put on the same footing as a natural disaster, as happened in the case of Decision No 331/02 (32) because the damage sustained by farmers or producer organisations exceeded a certain threshold. As pointed out in its letter initiating the investigation procedure, the Commission has, however, always considered that the provisions of point 11.3 of the Guidelines were not applicable to agricultural processing undertakings that, in its view, enjoy a degree of flexibility in the management of their supplies. This may of course result in additional raw material costs and/or a loss of profitability, but seems not to warrant the direct application of the rules applicable to agricultural production. This approach, referred to in point 11.3.8 of the Guidelines, was also confirmed in a recent judgment of the Court of First Instance (33).
(77)
According, then, to point 11.3 of the agricultural Guidelines, aid designed to compensate agricultural processing undertakings from losses resulting from adverse weather conditions is incompatible with the common market.
(78)
The Italian authorities had based a part of their argument on the fact that the refinery concerned did not have the flexibility to manage its supplies and that, as a result and in view of the close link between sugar beet production and the refinery, the aid should be extended to include the refinery. In this context, the Italian authorities had referred to several Commission decisions as precedents. The first series of decisions referred to cannot be considered to be comparable as they refer to occurrences characterised in themselves as natural disasters (aid N 729/02 (34) refers to compensation following flooding in the south-east of France) or exceptional occurrences (aid N 83/2000 (35) relates to dioxin contamination in Belgium, aid N 185/2000 (36) makes good the damage following the proliferation of algae in the Adriatic in Italy and aid N 657/02 (37) relates to the Belgian forestry sector, damaged by an exceptional proliferation of bark beetles and fungi). As indicated previously, drought cannot in itself be characterised as a natural disaster or exceptional occurrence and, as a result, the decisions cited cannot be considered as precedents similar to the case in question.
(79)
The Italian authorities had also referred to decisions N 745/2000-C 4/01 (38) and N 331/02 (39). In these two cases, the Commission concluded that drought could be likened to a natural disaster because of the threshold of damage exceeded. In both cases, the aid was granted to primary producers and to ‘consorzi di bonifica’ (land reclamation consortia). The Commission concluded that the agricultural Guidelines did not apply to these ‘consorzi di bonifica’ because of the fact that water is not a product that comes under Annex I of the Treaty.
(80)
However, these ‘consorzi di bonifica’ cannot be likened to normal undertakings, as is the case with the refinery in question. The ‘consorzi di bonifica’ are autonomous public undertakings that manage drainage areas. In exchange, they receive payments from farmers for the irrigation water provided. This difference between the ‘consorzi di bonifica’ and undertakings for processing or marketing agricultural products has also been confirmed by the fact that, in the aforesaid case N 745/2000-C 4/01, the Commission decided to initiate the investigative procedure for the portion of the aid concerning undertakings and cooperatives active in the processing and marketing of agricultural products while indicating that, in application of the agricultural Guidelines, aid to these processing undertakings could not be approved. Notification having subsequently been withdrawn, no final decision was taken where this case was concerned.
(81)
With regard to the refinery’s difficulty in obtaining supplies from elsewhere, the Italian authorities put forward arguments aimed at demonstrating the inherent difficulties faced by every refinery in obtaining supplies from a sugar beet production basin different from its own because of a contract system linking the sugar beet producers to the refineries, because of the island location of the refinery concerned and because of the short period for which sugar beet can be preserved. The fact that it is impossible for refineries to obtain supplies from elsewhere is a result, however, of Regulation (EC) No 1260/2001 which introduced a system of contracts between sugar beet producers and refineries. The Italian authorities have themselves pointed out that, in normal conditions, it is not possible to obtain supplies from other sugar beet production basins intended for other undertakings without causing these other undertakings’ final production to fall and therefore preventing them from achieving their quotas. The authorities have therefore indicated that, in general, it is not often that a refinery is able to obtain supplies from production basins other than its usual ones.
(82)
Because of the aforesaid Regulation (EC) No 1260/2001, any refinery, whatever its location, has the inherent inflexibility invoked as an argument by Italy. Such an argument would thus apply to all processing undertakings whose link with producers is an integral part of the organisation of the market in which they are active. Acceptance of this argument would go against a strict interpretation of the agricultural Guidelines - a strict interpretation that does need, moreover, to be applied since we are concerned here with an exception to the general rule concerning the incompatibility of aid.
(83)
As a result, the aid proposed by the Italian authorities cannot be authorised on this legal basis.
(84)
The Italian authorities had also referred to point 3.4 of the aforesaid agricultural Guidelines as the legal basis for the aid. In applying this point, the Commission will assess any aid measures that are not covered by the agricultural Guidelines on a case-by-case basis, taking account of the principles set out in Articles 87, 88 and 89 of the Treaty and of the Community’s common agricultural and rural development policies. As indicated in the previous paragraphs, the aid measures concerned (aid to processing undertakings designed to make good the losses sustained due to adverse weather conditions) are specifically covered by point 11.3 of the Guidelines. These exclude such undertakings from the benefit of aid, with the result that point 3.4 does not apply.
(85)
Concerned not to leave any avenue unexplored, the Commission has examined whether the guidelines for rescuing and restructuring firms in difficulty might not be applicable to the case in question. The first condition to be fulfilled by an undertaking if it is to benefit from rescuing or restructuring aid is that it should be considered as being in difficulty within the meaning of the guidelines on State aid for rescuing and restructuring firms in difficulty (40). It is not apparent from the information held by the Commission that the undertaking was in difficulty within the meaning of the above-mentioned guidelines when the aid was notified. The only known indication that it might have been so is the fact that it needed to be recapitalised because of a large trading deficit in 2003. The private shareholders intervened to recapitalise the company in December 2003, thereby making any public support for its restructuring superfluous. Moreover, the company had already received restructuring aid, approved by the Commission in 1999 (41). Since fewer than 10 years have elapsed since the end of the restructuring period, no new restructuring aid can be granted because of the ‘one time, last time’ principle referred to in point 3.2.3 of the guidelines on rescuing and restructuring. In any case, the Commission wishes to point out that it is up to the Member State concerned to fulfil the duty of cooperation it has towards the Commission by providing all the elements required for the Commission to be able to check that all the conditions of the derogation from which it is asking to benefit have been met (42). In the case in question, the Italian authorities have never called for the guidelines on rescuing and restructuring to be applied nor supplied any document enabling the Commission to assess the data in the light of these guidelines, and this in spite of the information provided by the Commission in recital 44 of the decision to initiate the investigative procedure.
(86)
The data held by the Commission when the procedure was initiated seemed to indicate that Sadam ISZ and the companies to which Sadam ISZ directly or indirectly belonged - in particular, SAM and FINBIETICOLA Spa - would have been in a position to cope with the fall in Sadam ISZ’s profitability.
(87)
Sadam ISZ having passed entirely under the control of Eridania Sadam during the procedure, the Commission notes that the lead company has been in a position to honour its obligations towards the controlled company, enabling it to pursue its activity, partly because of the considerable investment made within the framework of the restructuring plan launched in 1999-2000 and of the recapitalisation that took place in 2003-2004. As indicated in recital 75, the undertaking seems not, therefore, to be in difficulty, meaning that the guidelines on rescuing and restructuring are not applicable.
(88)
The decision to initiate the procedure also stated, as a subsidiary point, that, even if it were deemed acceptable (quod non, at this stage of the procedure) to apply the compensation principle described in point 11.3 of the Guidelines to Sadam ISZ, the reference period chosen by the Italian authorities for calculating the aid would be wrong. Since it was not deemed acceptable, for the reasons explained above, to apply point 11.3 of the Guidelines, there is no reason for examining this last doubt raised when the decision was taken to initiate the procedure.
VII. CONCLUSION
(89)
In view of the foregoing considerations, the Commission considers that the State aid of EUR 3,5 million that Italy is considering granting to the Villasor sugar refinery belonging to Sadam ISZ is not compatible with the common market,
HAS ADOPTED THIS DECISION:
Article 1
The State aid of EUR 3,5 million that Italy is considering granting to the Villasor sugar refinery belonging to Sadam ISZ is not compatible with the common market.
Accordingly, the granting of the aid is not authorised.
Article 2
This Decision is addressed to the Italian Republic.
Done at Brussels, 16 July 2008.
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COMMISSION REGULATION (EU) No 1230/2009
of 15 December 2009
amending the representative prices and additional import duties for certain products in the sugar sector fixed by Regulation (EC) No 877/2009 for the 2009/10 marketing year
THE EUROPEAN COMMISSION,
Having regard to the Treaty on the Functioning of the European Union,
Having regard to 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) (1),
Having regard to Commission Regulation (EC) No 951/2006 of 30 June 2006 laying down detailed rules for the implementation of Council Regulation (EC) No 318/2006 as regards trade with third countries in the sugar sector (2), and in particular Article 36(2), second subparagraph, second sentence thereof,
Whereas:
(1)
The representative prices and additional duties applicable to imports of white sugar, raw sugar and certain syrups for the 2009/10 marketing year are fixed by Commission Regulation (EC) No 877/2009 (3). These prices and duties have been last amended by Commission Regulation (EC) No 1214/2009 (4).
(2)
The data currently available to the Commission indicate that those amounts should be amended in accordance with the rules and procedures laid down in Regulation (EC) No 951/2006,
HAS ADOPTED THIS REGULATION:
Article 1
The representative prices and additional duties applicable to imports of the products referred to in Article 36 of Regulation (EC) No 951/2006, as fixed by Regulation (EC) No 877/2009 for the 2009/10, marketing year, are hereby amended as set out in the Annex hereto.
Article 2
This Regulation shall enter into force on 16 December 2009.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 15 December 2009.
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COMMISSION REGULATION (EC) No 1102/2007
of 24 September 2007
establishing the standard import values for determining the entry price of certain fruit and vegetables
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Commission Regulation (EC) No 3223/94 of 21 December 1994 on detailed rules for the application of the import arrangements for fruit and vegetables (1), and in particular Article 4(1) thereof,
Whereas:
(1)
Regulation (EC) No 3223/94 lays down, pursuant to the outcome of the Uruguay Round multilateral trade negotiations, the criteria whereby the Commission fixes the standard values for imports from third countries, in respect of the products and periods stipulated in the Annex thereto.
(2)
In compliance with the above criteria, the standard import values must be fixed at the levels set out in the Annex to this Regulation,
HAS ADOPTED THIS REGULATION:
Article 1
The standard import values referred to in Article 4 of Regulation (EC) No 3223/94 shall be fixed as indicated in the Annex hereto.
Article 2
This Regulation shall enter into force on 25 September 2007.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 24 September 2007.
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DIRECTIVE 98/91/EC OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 14 December 1998 relating to motor vehicles and their trailers intended for the transport of dangerous goods by road and amending Directive 70/156/EEC relating to the type approval of motor vehicles and their trailers
THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION,
Having regard to the Treaty establishing the European Community, and in particular Article 100a thereof,
Having regard to the proposal from the Commission (1),
Having regard to the opinion of the Economic and Social Committee (2),
Acting in accordance with the procedure laid down in Article 189b of the Treaty (3),
Having regard to Council Directive 94/55/EC of 21 November 1994 on the approximation of the laws of the Member States with regard to the transport of dangerous goods by road (4), which transposes into Community law the European Agreement concerning the International Carriage of Dangerous Goods by Road (ADR),
Whereas the internal market comprises an area without internal frontiers in which the free movement of goods, persons, services and capital must be ensured;
Whereas total harmonisation regarding the technical requirements for vehicles intended for the transport of dangerous goods by road is necessary in order fully to achieve that objective;
Whereas technical barriers to trade regarding the provisions for EC type approval of vehicles intended for the transport of dangerous goods by road should be eliminated in order to allow the market organisation in question to operate smoothly;
Whereas it is therefore necessary in the context of the internal market to harmonise the standards for means of transport of dangerous goods by road;
Whereas it is necessary to harmonise the approval procedures in the Member States;
Whereas this Directive will be one of the separate Directives which must be fulfilled in order to comply with the EC type-approval procedure which has been established by Directive 70/156/EEC (5) and in order to ensure the conformity of vehicles with the requirements of the EC type-approval procedure established by that Directive; whereas, therefore, the provisions of Directive 70/156/EEC relating to vehicles apply to this Directive;
Whereas, in particular, Article 3(4) and Article 4(3) of Directive 70/156/EEC require each separate Directive to have an information document attached to it incorporating the relevant items of Annex I to that Directive and also a type-approval certificate based on Annex VI thereto in order that type approval may be computerised,
HAVE ADOPTED THIS DIRECTIVE:
Article 1
This Directive shall apply to vehicles of categories 'N` and 'O`, as defined in Article 2 and Annex II to Directive 70/156/EEC, intended for the transport of dangerous goods by road within or between Member States.
The scope, definition, classification and requirements relating to such vehicles and the administrative provisions for EC type approval thereof are set out in Annexes I and II respectively to this Directive.
Article 2
For the purposes of this Directive:
- 'dangerous goods` shall mean substances and articles as defined in Article 2 of Directive 94/55/EC,
- 'transport` shall mean road transport operation as defined in Article 2 of Directive 94/55/EC.
Article 3
Directive 70/156/EEC shall be amended by the addition of:
(a) the following item to Annex I:
START OF GRAPHIC
'14. SPECIAL PROVISIONS FOR VEHICLES INTENDED FOR THE TRANSPORT OF DANGEROUS GOODS
14.1. Electrical equipment according to Directive 94/55/EC
14.1.1. Protection against overheating of conductors:
14.1.2. Type of circuit breaker:
14.1.3. Type and operation of battery master switch:
14.1.4. Description and location of safety barrier for tachograph:
14.1.5. Description of permanently energised installations. Indicate the EN standard applied:
14.1.6. Construction and protection of electrical installation situated to the rear of the driver's compartment:
14.2. Prevention of fire risks
14.2.1. Type of not readily flammable material in the driver's compartment:
14.2.2. Type of heat shield behind the driver's compartment (if applicable):
14.2.3. Position and heat protection of engine:
14.2.4. Position and heat protection of the exhaust system:
14.2.5. Type and design of the endurance braking systems heat protection:
14.2.6. Type, design and position of combustion heaters:
14.3. Special requirements for bodywork, if any, according to Directive 94/55/EC
14.3.1. Description of measures to comply with the requirements for Type EX/II and Type EX/III vehicles:
14.3.2. In the case of Type EX/III vehicles, resistance against heat from the outside:
`; END OF GRAPHIC
(b) the following item in Part I of Annex IV:
TABLE
Article 4
1. Member States may not:
- refuse, in respect of a type of vehicle, to grant EC type approval or to grant national type approval, or
- prohibit the registration, sale or entry into service of base vehicles or complete vehicles as defined in Article 2 of Directive 70/156/EEC
on grounds relating to the transport of dangerous goods if the requirements of the Annexes to this Directive are fulfilled.
2. Member States may not prohibit the registration, sale or entry into service of a vehicle completed from a base vehicle as defined in Article 2 of Directive 70/156/EEC on grounds relating to the base vehicle and to the transport of dangerous goods:
- if for the base vehicle the requirements of the Annexes to this Directive are fulfilled and if the completion of the base vehicle has not invalidated this compliance, or
- if for the completed vehicle the requirements of the Annexes to this Directive are fulfilled.
Article 5
Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive by 16 January 2000 at the latest, and shall forthwith inform the Commission thereof.
When the Member States adopt these measures they shall contain a reference to this Directive or shall be accompanied by such reference on the occasion of their official publication. The methods of making such a reference shall be laid down by the Member States.
Member States shall communicate to the Commission the texts of the main provisions of the national law which they adopt in the field governed by this Directive.
Article 6
This Directive shall enter into force on the day of its publication in the Official Journal of the European Communities.
Article 7
This Directive is addressed to the Member States.
Done at Brussels, 14 December 1998.
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COUNCIL REGULATION (EC) No 192/2007
of 22 February 2007
imposing a definitive anti-dumping duty on imports of certain polyethylene terephthalate originating in India, Indonesia, Malaysia, the Republic of Korea, Thailand and Taiwan following an expiry review and a partial interim review pursuant to Article 11(2) and Article 11(3) of Regulation (EC) No 384/96
THE COUNCIL OF THE EUROPEAN UNION,
Having regard to the Treaty establishing the European Community,
Having regard to Council Regulation (EC) No 384/96 of 22 December 1995 on protection against dumped imports from countries not members of the European Community (1) (‘the basic Regulation’), and in particular Articles 11(2) and 11(3) thereof,
Having regard to the proposal submitted by the Commission after consulting the Advisory Committee,
Whereas:
A. PROCEDURE
1. Measures in force
(1)
On 27 November 2000, the Council imposed, by Regulation (EC) No 2604/2000 (2), definitive anti-dumping duties on imports of certain polyethylene terephthalate (PET) originating in India, Indonesia, Malaysia, the Republic of Korea, Taiwan and Thailand (the countries concerned). The measures imposed had been based on an anti-dumping investigation (the original investigation) initiated pursuant to Article 5 of the basic Regulation.
(2)
On 13 August 2004, the Council imposed, by Regulation (EC) No 1467/2004 (3), definitive anti-dumping duties on imports of certain PET originating in Australia and the People's Republic of China (PRC) and terminated the proceeding on imports of PET originating in Pakistan.
(3)
The amendments made to Regulation (EC) No 2604/2000 were the results of either review investigations initiated pursuant to Article 11(3) and (4) of the basic Regulation or of price undertakings being accepted under Article 8(1) thereof.
2. Request for reviews
(4)
Following the publication of a notice of impending expiry (4), the Commission, on 30 August 2005, received a request to review the measures in force pursuant to Article 11(2) of the basic Regulation (expiry review), and to partially review the measures imposed on imports from Taiwan and on imports from three exporting producers in the Republic of Korea pursuant to Article 11(3) of the basic Regulation (partial interim review).
(5)
The request was lodged by the Polyethylene Terephthalate Committee of Plastics Europe (the applicant) on behalf of producers representing a major proportion, in this case more than 90 %, of total Community production of PET.
(6)
The request for the expiry review was based on the grounds that the expiry of the measures would be likely to result in a continuation or recurrence of dumping and injury to the Community industry.
(7)
The request for the partial interim review of the measures on imports from Taiwan and imports originating from three exporting producers in the Republic of Korea (Daehan Synthetic Fiber Co. Ltd, SK Chemicals Co. Ltd and KP Chemical Corp.) was based on the grounds that the level of the measures was not sufficient to counteract the injurious dumping.
(8)
Having determined, after consulting the Advisory Committee, that sufficient evidence existed for the initiation of the two reviews, pursuant to Articles 11(2) and 11(3) of the basic Regulation respectively, the Commission initiated these reviews on 1 December 2005 (5).
(9)
A Notice regarding the scope of the interim review was published in the Official Journal on 2 June 2006 (6) making clear that the scope of the partial interim review also included all related companies.
3. Parallel investigation
(10)
On 1 December 2005, the Commission also initiated a review pursuant to Article 18 of Council Regulation (EC) No 2026/97 (7) on the countervailing measures in force on imports of PET originating in India.
4. Parties concerned by the investigation
(11)
The Commission officially advised the exporting producers, the representatives of the exporting countries, importers, Community producers, users and the applicant of the initiation of the expiry review and the partial interim review. Interested parties were given the opportunity to make their views known in writing and to request a hearing within the time limit set out in the notice of initiation. All interested parties, who so requested and showed that there were particular reasons why they should be heard, were granted a hearing.
(12)
In view of the apparent large number of Indian, Indonesian, Korean and Taiwanese exporting producers as well as Community producers and importers listed in the request for the expiry review and the number of Taiwanese exporting producers listed in the request for the interim review, it was considered appropriate, in conformity with Article 17 of the basic Regulation, to examine whether sampling should be used. In order to enable the Commission to decide whether sampling would be necessary and, if so, to select a sample, the parties were requested, pursuant to Article 17(2) of the basic Regulation, to make themselves known within 15 days of the initiation of the reviews and to provide the Commission with the information requested in the notice of initiation.
(13)
After examination of the information submitted, given the low number of exporting producers in India, Indonesia, the Republic of Korea and Taiwan indicating their willingness to cooperate, it was decided that sampling was not necessary as regards exporting producers in these four countries.
(14)
Having examined the information submitted by Community producers and importers, and considering that their number was not excessive, it was decided to include all of them and that sampling was not necessary.
(15)
Questionnaires were therefore sent to all known exporting producers in the countries concerned, importers, suppliers, Community producers and users.
(16)
Replies to the questionnaires were received from:
-
three exporting producers in India,
-
three exporting producers in Indonesia (although only two of these decided to accept a verification visit),
-
two exporting producers in Malaysia,
-
four exporting producers in the Republic of Korea,
-
three exporting producers in Taiwan (although only two of these decided to accept a verification visit),
-
one exporting producer in Thailand,
-
two suppliers in the Community,
-
12 Community producers,
-
10 converters/users.
It was also found that one non-cooperating Indonesian exporting producer had changed its name since the publication of the measures in force. This concerned P.T. Bakrie Kasei Corp. to P.T. Mitsubishi Chemical Indonesia.
(17)
The Commission sought and verified all the information it deemed necessary for its analysis and carried out verification visits at the premises of the following companies:
(a)
India
Exporting producers
-
Pearl Engineering Polymers Ltd, Delhi,
-
SENPET, formerly Elque Polyesters Ltd, Calcutta,
-
Futura Polyesters Ltd, Chennai;
Related exporter
-
Plastosen Ltd, Calcutta, (related to SENPET, formerly Elque Polyesters Ltd);
(b)
Indonesia
Exporting producers
-
P.T. Polypet Karyapersada, Jakarta,
-
P.T. Petnesia Resindo, Tangerang;
(c)
Malaysia
Exporting producers
-
MPI Polyester Industries Sdn. Bhd., Selangor,
-
Hualon Corporation (M) Sdn. Bhd. Kuala Lumpur;
(d)
Republic of Korea
Exporting producers
-
SK Chemicals Co. Ltd, Seoul,
-
Huvis Corp., Seoul (related to SK Chemicals Co Ltd),
-
KP Chemicals Corp., Seoul,
-
Honam Petrochemicals Corp., Seoul (related to KP Chemicals Co Ltd);
Related traders/importers located in the Republic of Korea
-
SK Networks Ltd, Seoul (related to SK Chemicals Co Ltd),
-
Lotte Trading Ltd, Seoul, Republic of Korea (related to KP Chemicals Co Ltd),
-
Lotte Daesan Ltd, Seoul, Republic of Korea (related to KP Chemicals Co Ltd);
Related traders/importers located in the Community
-
SK Networks Deutschland GmbH, Frankfurt/Main, Germany (related to SK Chemicals Co Ltd),
-
SK Eurochem, Warsaw, Poland (related to SK Chemicals Co Ltd);
(e)
Taiwan
Exporting producers
-
Shinkong Synthetic Fibers Corporation, Taipei,
-
Far Eastern Textile Ltd, Taipei;
(f)
Thailand
Exporting producer
-
Bangkok Polyester Public company Ltd, Bangkok, Thailand;
(g)
Community producers
-
Voridian BV (The Netherlands),
-
M & G Polimeri Italia Spa (Italy),
-
Equipolymers Srl (Italy),
-
La Seda de Barcelona SA (Spain),
-
Novapet SA (Spain),
-
Selenis Industria de Polímeros SA (Portugal),
-
Selenis Itália Spa (Italy);
(h)
Community Suppliers
-
Interquisa SA (Spain);
(i)
Unrelated importers in the Community
-
Global Service International SRL (Italy);
(j)
Community users
-
Coca Cola Enterprises Europe Ltd (Belgium).
(18)
The investigation of the likelihood of continuation and/or recurrence of dumping and injury for the expiry review covered the period from 1 October 2004 to 30 September 2005 (RIP). The examination of trends relevant for the assessment of the likelihood of a continuation or recurrence of injury covered the period from 1 January 2002 up to the end of the RIP (period considered). The investigation period for the partial interim review pursuant to Article 11(3) of the basic Regulation concerning imports from Taiwan and from three exporting producers in the Republic of Korea is the same as that of the expiry review.
B. PRODUCT CONCERNED
1. Product concerned
(19)
The product concerned is the same as in the original investigation i.e. PET with a coefficient of viscosity of 78 ml/g or higher, according to the ISO Standard 1628-5 originating in the countries concerned. It is currently classifiable within CN code 3907 60 20.
2. Like product
(20)
As in the original investigation and the review investigation, it was found that the product concerned, PET produced and sold on the domestic markets in the countries concerned and PET produced and sold by the Community producers have the same basic physical and chemical characteristics and uses. Therefore, these products are considered to be like products within the meaning of Article 1(4) of the basic Regulation.
C. LIKELIHOOD OF A CONTINUATION AND/OR RECURRENCE OF DUMPING
1. Dumping of imports during the investigation period - General principles
(21)
In accordance with Article 11(2) of the basic Regulation, it was examined whether dumping was currently taking place and whether or not the expiry of the measures would be likely to lead to a continuation of dumping.
(22)
The general methodology set out below has been applied to all exporting producers in the countries concerned and is the same as in the original investigation. The presentation of the findings of dumping for each of the countries concerned therefore only describes what is specific for each exporting country.
(23)
For the determination of normal value, it was first established, for each exporting producer, whether its total domestic sales of the product concerned were representative in comparison with its total export sales to the Community. In accordance with Article 2(2) of the basic Regulation, domestic sales were considered representative when the total domestic sales volume of each exporting producer was at least 5 % of its total export sales volume to the Community.
(24)
Subsequently, those types of the product concerned sold domestically by the exporting producers having overall representative domestic sales, and that were identical or directly comparable to the types sold for export to the Community, were identified.
(25)
For each type sold by the exporting producers on their domestic markets and found to be directly comparable with the types of PET sold for export to the Community, it was established whether domestic sales were sufficiently representative for the purposes of Article 2(2) of the basic Regulation. Domestic sales of a particular type of PET were considered sufficiently representative when the total domestic sales volume of that type during the RIP represented 5 % or more of the total sales volume of the comparable PET type exported to the Community.
(26)
An examination was also made whether the domestic sales of each type of PET could be regarded as having been made in the ordinary course of trade, pursuant to Article 2(4) of the basic Regulation. This was done by establishing for each exporting producer in the countries concerned, the proportion of profitable sales to independent customers on the domestic market, of each exported type of the product concerned on the domestic market during the investigation period.
(a)
For those product types where more than 80 %, by volume, of sales on the domestic market were not below unit costs, i.e. where the average sales price of the product type concerned was equal to or higher than the average production cost for the product type concerned, normal value was calculated as the average price of all domestic sales of the product type in question irrespective of whether these sales were profitable or not.
(b)
For those product types where at least 10 % but no more than 80 %, by volume, of sales on the domestic market were not below unit costs, normal value was calculated as the weighted average sales price of those transactions which were made at or above unit costs of the type in question.
(c)
For those product types where less than 10 %, by volume, was sold on the domestic market at a price not below unit cost, it was considered that the product type concerned was not sold in the ordinary course of trade and therefore, normal value had to be constructed in accordance with Article 2(3) of the basic Regulation.
(27)
In the cases where normal values had to be constructed, they were constructed in accordance with Article 2(6) of the basic Regulation, i.e. on the basis of the manufacturing cost of the type concerned, to which was added an amount of selling, general and administrative (SG&A) expenses and a margin of profit. The amount of SG&A was that incurred by the exporting producer for the like product and the amount of profit equated to the average profit realised by the exporting producer on sales of the like product in the ordinary course of trade.
(28)
In all cases where the product concerned was exported to independent customers in the Community, the export price was established in accordance with Article 2(8) of the basic Regulation, namely on the basis of export prices actually paid or payable.
(29)
In cases where sales were made via a related importer or trader, the export price was constructed on the basis of the resale prices of that related importer to independent customers. Adjustments were made for all costs incurred between importation and resale including sales, general and administrative expenses, and a reasonable profit margin, in accordance with Article 2(9) of the basic Regulation. The appropriate profit margin was established on the basis of information provided by unrelated cooperating traders/importers operating on the Community market.
(30)
The normal value and export price were compared on an ex-works basis. For the purpose of ensuring a fair comparison between the normal value and the export price, due allowance in the form of adjustments was made for differences affecting the price and price comparability in accordance with Article 2(10) of the basic Regulation. Appropriate adjustments were granted in all cases where they were found to be reasonable, accurate and supported by evidence.
(31)
In accordance with Article 2(11) and (12) of the basic Regulation, a dumping margin was calculated for each cooperating exporting producer, by comparing the weighted average normal value with the weighted average export price.
(32)
For those countries where the level of cooperation was found to be high (above 80 % of all volumes imported to the Community during the RIP), and where there was no reason to believe that any exporting producer abstained from cooperating, the residual dumping margin was set at the level of the cooperating exporting producer with the highest dumping margin in order to ensure the effectiveness of the measures.
(33)
For those countries where the level of cooperation was found to be low (less than 80 % of all volumes imported to the Community during the RIP), the residual dumping margin was determined in accordance with Article 18 of the basic Regulation, i.e. on the basis of facts available.
2. Dumping of imports during the investigation period - Country specific findings
(34)
Three out of five known exporting producers cooperated with the investigation. The two non-cooperating companies account for more than 80 % of India's total PET production and around 25 % of India's exports to the Community. The share of Indian exports to the Community in relation to Community consumption amounted to 0,3 % in the RIP. Two of the three cooperating exporters hold price undertakings with respect to their PET exports to the Community, which were concluded pursuant to the original investigation.
(35)
With regards to two cooperating companies it was found that their Community export prices were in compliance with the minimum prices set by the undertakings. These prices clearly exceeded the ones charged for sales to third countries' markets. The latter sales were made in much larger quantities than Community exports. This indicates that the prices charged to Community customers do not reflect the normal pricing behaviour of the Indian price undertaking holders.
(36)
With respect to exports to the Community, the dumping margins of the three cooperating exporting producers were found to be in a range between no dumping and 17 %. It should be noted that the exporting producer with no dumping holds a price undertaking and that the quantity of its Community exports was very small (less than 10 %) in proportion to its third country exports. In the original investigation including subsequent reviews dumping margins were in a range between 14,7 % and 51,5 % (8). However, as the imported quantities were indeed very small, the main focus of the analysis is on the likelihood of recurrence of dumping.
(37)
The investigation established that there were five producers of PET in Indonesia during the RIP. As mentioned in recital 16, three companies submitted completed questionnaire responses but only two companies accepted verification visits at their premises. As it was thus impossible to verify whether the data submitted by the third company in the questionnaire reply was correct, this company did not cooperate properly in the investigation within the meaning of Article 18 of the basic Regulation. The company was informed accordingly and was given the opportunity to comment on this finding.
(38)
One of the cooperating companies had a very small quantity of sales to the EU market but these were made to one specialist user in the medical sector. Therefore, neither the volume nor the unit price of these sales was considered to be representative. Apart from this very small volume, no other sales were recorded in Eurostat on the EU market originating from Indonesia.
(39)
As the two cooperating companies made no representative sales on the EU market in the RIP, and the Eurostat import statistics showed that there were no further imports from Indonesia, no dumping margin could be established.
(40)
Two Malaysian PET producers cooperated in the investigation. Only one of them had exports to the Community, representing 100 % of the total Malaysian exports of PET to the Community. Total imports of the product concerned from Malaysia were small, i.e. in the range of 2 000 to 4 000 tonnes when compared to the Community market as a whole.
(41)
For the exporting producer with exports to the Community in the RIP, domestic sales of the like product were representative. Normal value was based on prices paid or payable, in the ordinary course of trade, by independent customers in Malaysia, in accordance with Article 2(1) of the basic Regulation.
(42)
The investigation revealed that the company's reported cost of manufacturing was underestimated as factory overhead costs (including depreciation, rent expenses, salaries and maintenance) actually incurred during the RIP were reclassified to SG&A expenses. The company argued that this practise was made in order to reflect the low capacity utilisation rate of its production facilities. However, actual costs incurred do also include the reclassified factory overhead costs. The fact that the company operated at a fraction of its full capacity of production does not mean that costs arising from such facilities are not incurred. Indeed, such costs were listed in the company's accounting records and since they were directly linked to production of the like product, a correction of the reported cost of manufacturing had to be completed.
(43)
For the same exporting producer, export prices were established on the basis of the prices actually paid by unrelated customers in the Community in accordance with Article 2(8) of the basic Regulation.
(44)
To ensure a fair comparison, allowances were made for differences in transport, insurance, handling, loading and ancillary cost and credit costs where applicable and justified.
(45)
To calculate the dumping margin, the weighted average normal values were compared to the weighted average export price to the Community of the product concerned.
(46)
This comparison showed the existence of dumping of around 5 % for the one exporting producer that exported to the Community in the RIP. However, as the imported quantities were indeed very small, the main focus of the analysis is on the likelihood of recurrence of dumping.
(47)
It is recalled that the interim review was limited to dumping as concerns Daehan Synthetic Fiber Co. Ltd, SK Chemicals Co. Ltd and KP Chemicals Corp. Full questionnaire replies were received from these three companies.
(48)
Moreover, companies related to one of the aforementioned exporting producers also made themselves known. Thus, questionnaire replies were also received from the exporting producers Honam Petrochemicals and Huvis Corp.
(49)
Prior to the on-the-spot investigation, Daehan Synthetic Fiber Co Ltd. informed the Commission of its decision to cease the production of PET in the Republic of Korea. Consequently, the company decided to cancel the planned verification visit. Since this company thus failed to cooperate within the meaning of Article 18 of the basic Regulation, it should be subject to the residual dumping margin.
(50)
According to the request, there are ten producers in the Republic of Korea which have the capacity to produce PET. Out of these ten producers, five (including Daehan Synthetic Fiber Co. Ltd) made themselves known to the Commission and submitted questionnaire replies to the Commission. Out of the other five non-cooperating producers, one had cooperated with the Commission in the original investigation.
(51)
The export volumes of the four cooperating exporting producers plus the unverified quantities exported by Daehan Synthetic Fiber Co. Ltd. represented close to 100 % of all Korean exports during the RIP from the Republic of Korea to the Community as recorded by Eurostat.
(52)
As seen from recitals 16 and 17, the four cooperating exporting producers that fully cooperated in the investigation were the following:
-
SK Chemicals Co. Ltd, Seoul,
-
Huvis Corp., Seoul (related to SK Chemicals Co. Ltd),
-
KP Chemicals Corp., Seoul,
-
Honam Petrochemicals Corp., Seoul (related to KP Chemicals Co. Ltd).
(53)
In order to avoid any circumvention in the future, dumping margins have been calculated on a group-wide basis.
(54)
For all types of PET exported by the Korean exporting producers, it was possible to establish normal value on the basis of the prices paid or payable in the ordinary course of trade by independent customers on the domestic market, in accordance with Article 2(1) of the basic Regulation.
(55)
Two of the Korean exporting producers made export sales to the Community directly to independent customers, via related companies located in the Republic of Korea and related importers located in the Community. Consequently, in the latter situation, a constructed export price has been established pursuant to Article 2(9) of the basic Regulation.
(56)
Allowances for differences in transport, insurance, handling charges, commissions, credit, packing, customs duties (duty drawback) and bank charges have been granted where justified and duly supported by evidence.
(57)
Two of the Korean exporting producers made a claim for duty drawback on the grounds that import charges were borne by the like product when intended for consumption in the exporting country but were refunded when the product was sold for export to the Community. In each case, the amount claimed was found to be higher than the amount of duty borne by the like product in the domestic market and therefore, the allowances were adjusted accordingly. The methodology used in the present investigation was compatible with the conditions set out in Article 2(10)(b) of the basic Regulation in so far as it accurately reflected the actual import level of duties borne by the like product.
(58)
In addition, both exporting producers claimed credit costs on the basis of the actual credit period taken by customers under the ‘open account’ payment system used on the Korean domestic market. It was found that under such a system, generally, the exporting producers did not actually grant specific credit periods and furthermore, the credit periods taken could not be accurately determined, as receipts could not be linked to specific invoices. In these circumstances, these allowances could not be granted.
(59)
As provided by Article 2(11) and (12) of the basic Regulation, the weighted average normal values of each type of the product concerned exported to the Community were compared to the weighted average export price of each corresponding type of the product concerned.
(60)
This comparison showed the existence of de minimis dumping for the exporting producers that exported to the Community in the RIP.
(61)
Two out of four known exporting producers cooperated with the investigation. The two cooperating companies account for more than 80 % of Taiwan's total PET production and 99 % of Taiwan's total exports to the Community. The share of Taiwan's exports to the Community in relation to Community consumption amounted to 1,2 % as regards the RIP.
(62)
A third Taiwanese exporting producer initially filed a questionnaire response but ceased further cooperation prior to the on-the-spot verification. The company's failure to allow Commission officials to verify its questionnaire response on-spot is tantamount to not cooperating with the investigation. By virtue of Article 18 of the basic Regulation this company should be subject to the residual dumping margin.
(63)
For all types of PET exported by the Taiwanese exporting producers, it was possible to establish normal values on the basis of the prices paid or payable in the ordinary course of trade by independent customers on the domestic market, in accordance with Article 2(1) of the basic Regulation.
(64)
Both cooperating Taiwanese exporting producers made direct export sales to independent Community customers. Export prices could be assessed on the basis of the prices paid or payable by these customers according to Article 2(8) of the basic Regulation.
(65)
Allowances for differences in transport, insurance, handling charges, credit, packing and bank charges were applied.
(66)
As provided by Article 2(11) and (12) of the basic Regulation, the weighted average normal values of each type of the product concerned exported to the Community were compared to the weighted average export price of each corresponding type of the product concerned.
(67)
On the basis of such comparison, the dumping margin found was below the de minimis margin in the case of Far Eastern Textile. In case of Shinkong, the dumping margin amounted to 6,5 %. However, for Far Eastern Textile, the investigation showed that the comparison of the weighted average normal value with the weighted average export prices did not reflect the full degree of dumping being practised. Indeed, the investigation showed that significant volumes (around 25 % of all exports to the Community) were made at significantly low prices and were concentrated on one customer. In addition, exports to all Community destinations were made at significantly decreased prices during the last four months of the RIP in comparison with the first eight months of the RIP. Therefore, another comparison methodology had to be applied. An important difference was found between the dumping margins resulting from a comparison average-to-average against the comparison transaction-to-average. With regard to the transaction-to-transaction comparison, it was not found to be an appropriate alternative comparison method because the process of selecting individual transactions in order to make such a comparison was considered arbitrary in this case. Thus, a comparison on the basis of the transaction-to-average was made in accordance with Article 2(11) of the basic Regulation. Thus a clear pattern of exports differing by customer and by time existed.
(68)
On that basis, the dumping margin resulting from the transaction-to-average comparison is considered for the sake of the further analysis on the continuation of dumping. In case of Shinkong, the difference between the dumping margins calculated according to the two methodologies was not significant and no patterns were found. Therefore, the dumping margin resulting from the average-to-average comparison should be considered for that company.
(69)
Subsequently, the dumping margins established for the two cooperating exporting producers are as follows:
Far Eastern Textile Ltd
3,5 %
Shinkong Synthetic Fibers Corp.
6,5 %
When expressed on a specific basis, these percentage margins correspond to the following specific duties:
Far Eastern Textile Ltd
EUR 36,3/t
Shinkong Synthetic Fibers Corp.
EUR 67/t
The residual duty should be based on the presently applicable residual duty for Taiwan given that no change in circumstances was found in that respect. It amounts to EUR 143,4/t.
(70)
As regards the two companies that failed to cooperate with the investigation, it is considered that information available should be applied in accordance with Article 18 of the basic Regulation. In fact, these companies should be allocated the residual duty.
(71)
Only one Thai producer of PET cooperated in the investigation and had no exports to the Community during the RIP. According to Eurostat, import volumes originating in Thailand were negligible during the RIP. However, it is known that there were at least three other PET producers in Thailand during the RIP which did not cooperate in the investigation.
(72)
In the absence of exports of PET to the Community by the only cooperating producer, no dumping calculation could be made for the cooperating producer.
3. Developments of imports should measures be repealed
(73)
In order to establish whether dumping would be likely to recur should the measures be repealed, the pricing behaviour of the cooperating exporting producers to other export markets and their production, capacity and stocks were examined. The analysis was based on the information available, i.e. the information provided and verified in the questionnaire replies by the cooperating producers mentioned in section A.4. An analysis was also made as to the pricing behaviour, production and production capacity of other exporting producers in the countries concerned by the proceedings. This analysis was based on market intelligence data supplied by the Community industry and exporting producers, Eurostat imports statistics and when available, export statistics from the countries concerned.
(74)
The likely scenario of what would happen if measures were repealed has been based on:
-
the verified questionnaire replies by the three cooperating exporting producers that fully cooperated with the investigation, and
-
a market intelligence report produced by an independent consultancy and submitted by the applicant.
(75)
Prices in the Community were generally lower than Indian domestic prices. Exports are likely to be made at prices that are at least slightly lower than the current Community prices. Should measures be repealed, it is likely that exports to the Community would be made at dumped prices assuming that the same price levels would be maintained.
(76)
Indian export prices to third countries were generally lower than its domestic prices. This price difference amounted to up to 24 % of the export price level. This indicates that exports to the Community may be made at equally dumped prices should measures be repealed. The margins found are indeed higher than the current level of dumping to the EC found as described above. It is noted that, 1. this current level of dumping found to the EC was established on the basis of small export volumes and 2. that some of these exports were made under the terms of a price undertaking which has had a correcting effect on the level of export prices. Should measures be repealed, it is thus probable that the margin of dumping would even be higher.
(77)
Indian export prices to third countries were generally below the price level in the Community. Therefore if measures were repealed, Indian exporters are likely to export PET in larger quantities to the Community and at prices approaching those charged to third countries during the RIP. As a consequence, it appears likely that the dumping established with regard to exports to the Community for the RIP may even increase should measures be repealed.
(78)
Considering spare capacities, it is reiterated that the two largest Indian producers did not cooperate with the investigation. It was found though that their overall capacities amounted to around 23 % of the Community consumption during the RIP. On the basis of information available the unused part of their capacities is substantial, reaching between 80 000 and 130 000 tonnes. In addition, the three cooperating producers also dispose of some unused capacities. To conclude, there are substantial spare capacities available in India. The Indian market is also characterised by an excess of supply. In this context, producers may choose to redirect excess quantities to the Community at continuously and increasingly dumped prices if measures are repealed.
(79)
Should measures be repealed, it appears that unused capacities are likely to be directed to the Community. Given the price relationships found, particularly the price relationship between prices in the Community and prices within India, such Community exports are likely to be made at dumped prices.
(80)
Prices in the Community were generally higher than those achieved by the two cooperating Indonesian exporting producers on their domestic market. This would suggest that it would be an attractive alternative for the Indonesian exporting producers to shift sales to the Community should the anti-dumping measures be repealed.
(81)
For Polypet, which was operating at a loss on all markets, domestic prices were not seen as reliable and hence a normal value had to be constructed based on its cost of production plus a normal profit. A profit margin of 7 %, equivalent to the margin used in the original investigation was used for the calculations. A 25,0 % price difference was identified between this constructed normal value and the export prices to third countries. The fact that export prices were lower than normal value by this amount suggests a likelihood of recurrence of dumping on the Community market should measures be repealed.
(82)
Petnesia was operating at around breakeven during the RIP and normal value was therefore calculated using both domestic sales and a constructed normal value using the same method as described above for Polypet. The difference between the normal values and the export price to third countries was between 5 and 10 % (for these methods). The fact that export prices were lower than normal value by this amount suggests a likelihood of recurrence of dumping on the Community market should measures be repealed.
(83)
The sales prices of the Community producers for sales in the EU were established at EUR 1 058 in the RIP. In the same period, the sales prices of the Indonesian exporters were EUR 911 to third country markets. Therefore sales on the EU market were 16 % higher than on other markets. This would suggest that it would be an attractive alternative for the Indonesian exporting producers to shift sales to the Community should the anti-dumping measures be repealed.
(84)
As mentioned above, five producers were operating in Indonesia during the RIP. The market intelligence report shows 324 000 tonnes of production in Indonesia and the cooperating producers represented around 47 % of this. Information from the cooperating producers and market intelligence suggest that unused capacities were around 10 % of total capacity or around 37 000 tonnes. This represents around 1,5 % of Community consumption.
(85)
Information from the cooperating producers showed that stocking of PET was low.
(86)
In respect to unused capacities and stocks, the investigation showed that a significant volume of PET could be made available for sale on the Community market.
(87)
The assessment of the abovementioned factors showed that there was a substantial difference in price between those realised by the Indonesian producers in third country markets and their normal value.
(88)
Furthermore, the export prices of the cooperating exporting producers on third country markets and the Indonesian domestic market are considerably lower than Community industry sales prices in the Community. Taken together with the availability of spare capacity, there is therefore an incentive for the Indonesian exporting producers to increase sales to the Community market should measures be repealed and that these sales are likely to be dumped.
(89)
While the total estimated production and sales of the product concerned by Malaysian producers is estimated at around 120 000 tonnes, the total consumption of PET in Malaysia is only around 60 000 tonnes. With a domestic market that is capable of consuming only about half of the total production and sales, it is clear that Malaysian producers of the product concerned are in general dependent on export markets for the continuation of operations at current capacities.
(90)
The investigation revealed that domestic prices were about 10 to 20 % lower than average prices charged on the Community market. There is no reason to conclude that this would change should the measures be repealed.
(91)
The information provided by both the cooperating exporters mentioned above in recital 17, showed that exports to third countries were made in large volumes accounting for 67 % of total sales in the RIP.
(92)
For one Malaysian exporter, which had exported to the Community, the weighted average export prices to third countries were below the weighted average normal values, which were established for its dumping calculation, and also appeared to be lower than the sales prices to the Community. This indicates that this Malaysian exporter also sells its PET at probably dumped prices to third country markets, and that the price difference is even higher than the one found on the European market.
(93)
For the other exporter, which had no exports to the Community in the RIP, the investigation revealed that average export prices to third countries were below the cost of production, which also indicates that the like product is also dumped on third markets.
(94)
The above indicates a strong likelihood of a recurrence of dumping on exports to the Community should the measures be repealed.
(95)
The information provided by the cooperating exporters mentioned above in recital 17, showed that exports to third countries were made at a weighted average export price significantly below the Community industry sales prices in the Community.
(96)
With the prevailing price level, it can therefore be concluded that the Community would be considered as an attractive market for producing exporters in Malaysia. On this basis it is considered that there would be an economic incentive for a shift from exports to third countries to the more profitable Community market should the measures be repealed. Should sales shift to the Community these are also likely to be at dumped prices.
(97)
The investigation revealed that the capacity utilisation of the two sole cooperating producers was very low during the RIP, i.e. in the range of between 30 and 80 %. On this basis, it can be concluded that there are significant spare capacities in Malaysia. Should measures be repealed, there would be an incentive for the Malaysian exporting producers to use this spare capacity and increase export sales, notably to the Community.
(98)
The two cooperating exporting producers were found to have a normal level of stock. It is however noted that stocks cannot be considered a meaningful indicator because the production of PET in Malaysia is mostly based on orders from customers. Therefore, stocks are mainly made up of PET that is waiting to be shipped to already known customers.
(99)
The investigation has shown that one of the cooperating producers continued its dumping practices despite the measures in force.
(100)
Furthermore, the weighted average export prices of the cooperating exporting producers on third country markets and the prices of sales on the domestic market are also considerably lower than the prevailing price level in the Community. Taken together with the low capacity utilisation, there is therefore an incentive for the Malaysian exporting producers to shift to the Community market at likely dumped prices should measures be repealed.
(101)
In recital 60, it has been explained that the dumping margins found for all four of the cooperating exporting producers were below de minimis. It is recalled that these exports took place during the period when two of the cooperating exporters were able to export at zero-duty to the Community. As the exports from these four exporting producers represented close to 100 % of all imports of PET during the RIP (as reported by Eurostat), there seems to be a low risk of recurrence of dumping by any of the exporting producers which cooperated in the investigation.
(102)
The investigation has shown that prices on the Korean domestic market charged by the cooperating companies are higher than those charged by the Community industry on the Community market. There is no reason to believe that those domestic prices found for the cooperating companies were not representative or that non-cooperating exporting producers sell at significantly lower prices on the domestic market than the cooperating companies. Moreover, it is likely that the non-cooperating companies which did not sell to the EC would sell at low prices to regain lost market share on the EC market. This suggests a likelihood of recurrence of dumping from the non-cooperating companies, should measures be repealed. It is also noted that these non-cooperating companies exported to the community in the original investigation in quantities that were not insignificant.
(103)
For the cooperating exporting producers, a price difference between the prevailing price level on the Korean domestic market and their exports to third countries of around 5 % was found. Still, given that they have had the possibility to export unlimited quantities of PET to the Community at zero duty, the risk for trade diversion to the Community appears to be rather low.
(104)
Export prices to third countries were also available on a general basis, including such prices that were charged by not cooperating producers. The latter prices were lower than the domestic prices charged by cooperating producers. This price difference again shows that exports to the Community may be made at dumped prices should measures be repealed.
(105)
The investigation showed that the cooperating exporting producers in the Republic of Korea have sold significant quantities to third countries. Still, for SK Chemicals and KP Chemicals, given that they have had the possibility to export unlimited quantities of PET to the Community at zero duty, the risk of trade diversion by the cooperating exporting producers appears to be rather low.
(106)
For non-cooperating exporting producers, information from a market intelligence report and information from the Korean statistical office had been used.
(107)
When summarising the overall exports to third countries by Korean exporting producers in the RIP (727 000 tonnes) as reported by Korean statistical office and deducting the exports by the cooperating exporting producers (320 000 tonnes), the total exports by non-cooperating exporting producers have been calculated to 407 000 tonnes.
(108)
The quantities exported to each destination by the non-cooperating exporting producers were established by taking the overall exports by destination and deducting exports by the cooperating exporting producers by destination. The five destinations to which the non-cooperating exporting producers are assumed to have exported the largest quantities are the PRC followed by Ukraine, Japan, Tunisia and the Islamic Republic of Iran.
(109)
On the basis of export values provided by the Korean statistical office, the weighted average price to the five destinations with the largest exports has been calculated as EUR 759/tonne. Whereas this price is based on rough unverified statistical data (partially containing statistical values by the cooperating exporting producers, and possibly containing exports prices to related companies as well as prices excluding ocean freight), the average price remains significantly lower than the average import prices (at cif level) to the Community (about 25 %).
(110)
On this basis, i.e. given the apparent significant volumes of exports to third countries by non-cooperating exporting producers and the fact that prices to the five largest destinations of the non-cooperating exporting producers are significantly lower than the average import price into the Community, there appears to be a significant risk of trade diversion by non-cooperating exporting producers should measures be allowed to lapse. Given the significant dumping margin found (55 %) for the biggest of the non-cooperating exporting producers in the original investigation, it is highly likely that the non-cooperating exporting producers would resume their dumping practises, should measures be repealed.
(111)
For the cooperating exporting producers, they were all found to have a normal level of stock and were operating at almost full capacity. Thus, the risk of recurrence of dumping on this basis appears to be very limited.
(112)
For the non-cooperating exporting producers, the capacity was established on the basis of the overall capacity of Korean exporting producers given by market intelligence. No information is available on the level of stock. When subtracting the capacity of the cooperating exporting producer from the overall Korean capacity, an estimated capacity for the non-cooperating exporting producers has been calculated. This capacity has been estimated to be at around 550 000 tonnes which would correspond to a market share of 23 % of the total Community consumption.
(113)
Based on the market intelligence report, unused capacity for the Republic of Korea as a whole is estimated at around 200 000 tonnes. Thus, it cannot be excluded that there is a risk of recurrence of dumping by non-cooperating exporting producers with unused capacity should measures be repealed.
(114)
Although for the four cooperating companies there seems to be no apparent risk of recurrence of dumping, the investigation has shown that for the non-cooperating companies a real risk of recurrence of dumping exists. This was shown by a comparison of the prevailing price level on the Korean domestic market and the price level on the Community market as well as by a comparison of that domestic price level with the average export price level to third country markets.
(115)
Moreover, a significant threat of trade diversion can indeed be found when comparing the significant volumes of PET that they sell to third countries, at prices which are significantly lower than the prices at which PET is imported to the Community. Given the history of dumping of those non-cooperating companies (at 55 % in the original investigation), there is no reason to believe that those companies would not resume their dumping practices should measures be allowed to lapse.
(116)
Taiwanese domestic prices of cooperating and non-cooperating exporting producers were generally lower than prices in the Community. The former prices were indeed profitable. This means that the Community price level would also be very attractive from a Taiwanese exporting producer's point of view. Given the price relationship found, Taiwanese export prices are also likely to be significantly lower than the averages prices charged by the Community industry.
(117)
In case of one cooperating producer, prices to third countries were significantly lower than Taiwanese domestic prices. In the case of the other cooperating producer that mainly sold to Japan, export prices to third countries exceeded domestic sales prices. On that basis, it cannot be ruled out that export prices to the Community will follow the trend of Taiwanese prices to other countries (except Japan) once measures are repealed. Therefore, dumping is likely to recur under such a scenario. This assessment is based on the data supplied by cooperating producers as no other data could be retrieved in this regard.
(118)
Taiwanese export prices to third countries were significantly below the price level in the Community. Taiwanese exports to other countries were not subject to anti-dumping duties during the RIP. Should measures be repealed it cannot be excluded that export prices to the Community would follow the trend of prices to other markets. Under such circumstances, future exports to the Community would be made at dumped prices. Again, this assessment is based on data provided by cooperating producers. However, as there is no information available indicating that the export prices to third countries or domestic prices found for the cooperating companies would not be representative for all Taiwanese exporting producers, it can also be concluded that future exports to the EC from the non-cooperating companies would be likely to be made at dumped prices.
(119)
While one cooperating company made full use of its capacity during the RIP, the other one did not use a significant quantity of its total capacity. The companies not cooperating with the investigation seem to have unused capacities in a range between 400 000 and 500 000 tonnes. This amounts to around 20 % of the Community consumption during the RIP. Indeed, given the attractive price level on the Community market, such unused capacities are likely to be redirected to the Community should measures be repealed.
(120)
With a view to the unused capacities, it appears that such capacities are likely to be redirected to the Community should measures be repealed. Moreover, such Community exports are likely to be made at dumped prices given the low price level for exports to third country markets, with the exception of Japan. Community prices are likely to be put under pressure once larger quantities are imported into the Community market. Such a downwards price trend is likely to exacerbate the dumping established for the RIP.
(121)
As outlined in recital 71 it is known that there were at least three other PET producers in Thailand during the RIP which did not cooperate in the investigation. For those non-cooperating producers, the information available from Eurostat and other sources were analysed.
(122)
The information on stocks and sales to third markets refers only to the cooperating exporting producer. It was possible to obtain data on the overall production capacity in Thailand and to make an estimate of the production volume of all exporting producers in Thailand based on market intelligence. In this respect, it was considered that findings for non-cooperating companies could not be more favourable than those established for cooperating companies.
(123)
The investigation revealed that domestic prices were 10 to 20 % lower than average prices charged on the Community market. There is no reason to conclude that this would change should the measures be repealed.
(124)
The information provided by the cooperating producing exporter mentioned above in recital 17 which did not export to the Community, showed that exports to third countries were made in large volumes accounting for over 80 % of total sales in the RIP. It was also found that the average export prices to third countries were below cost, which indicates that the product is sold at dumped prices on third country markets. Moreover, concerning the non-cooperating companies, there is no information available to indicate that their pricing behaviour is different regarding the Thai domestic or third country markets and it can therefore be assumed that they also sell at lower prices to third countries than on their domestic market.
(125)
The information provided by the cooperating exporter which did not export to the Community, showed that exports to third countries were made at a weighted average export price significantly below the Community industry sales prices in the Community.
(126)
Assuming that the prevailing price level in the Community would remain the same, it can therefore be concluded that the Community would be a considered an attractive market for producing exporters in Thailand. On this basis it is considered that there would be an economic incentive for a shift from exports to third countries to the more profitable Community market should the measures be repealed.
(127)
There are significant spare capacities in Thailand. The investigation revealed that the capacity utilisation of the cooperating exporting producer was found to be low during the RIP.
(128)
According to the market intelligence report, the capacity level of the non-cooperating producing exporters is estimated at around 500 000 tonnes with a total production of around 430 000. Based on these figures the spare capacity would amount to approximately 70 000 tonnes. This spare capacity would amount to around 2,9 % of the total Community consumption, should it be directed towards sales on the Community market.
(129)
Overall, market intelligence data suggests that the domestic market in Thailand can absorb less than 94 000 tonnes or 25 % of the domestic production of PET. Under these circumstances, Thai producers of the product concerned are heavily dependent on export sales for the continuation of operation at current capacity. Under these circumstances, there is a strong likelihood that exports to the EC would increase should the measures be repealed. Therefore, it cannot be excluded that the Thai exporting producers would lower their export prices to the Community to a level of export prices for other third country markets, in an effort to regain lost market, should measures be repealed. Thus, it cannot be excluded that there is a threat of recurrence of dumping by non-cooperating exporting producers should measures be repealed.
(130)
The cooperating exporting producer was found to have a normal level of stock. It is however noted that stocks cannot be considered a meaningful indicator because the production of PET in Thailand is mostly based on orders from customers. Therefore, stocks are mainly made up of PET that is waiting to be shipped to already known customers.
(131)
As the sole cooperating exporting producer did not export to the Community, the investigation could not conclude as to whether dumping continues despite the measures in force.
(132)
However the weighted average export prices of the cooperating exporting producer on third country markets and the prices of sales on the domestic market were considerably lower than Community industry sales prices in the Community. The sales prices were below the cost of production. This is considered as an indicator that sales would probably be made at dumped prices should measures be repealed. Moreover, given the attractive price level in the Community, there is an incentive for the Thai exporting producers to sell to the Community market should the measures be repealed.
(133)
For the non-cooperating exporting producers, a significant threat of trade diversion can be found when comparing the domestic demand and the significant volumes of PET that are sold to third countries. It is recalled, as stated in recital 131 and onwards, that Thai producers are heavily dependent on exports and that there is a large overall spare capacity that could be diverted towards the Community. Given their history of dumping (at 32,5 % in the original investigation), it appears that there is a risk for recurrence of dumping should measures be repealed.
4. Conclusion on the likelihood of a continuation and/or recurrence of dumping
(134)
On the basis of the above, it is concluded that dumping is likely to continue and/or recur should measures be repealed. Accordingly, it is proposed that measures applicable to imports of PET originating in India, Indonesia, Malaysia, Taiwan and Thailand should be maintained.
(135)
On the basis of information collected for non-cooperating exporting producers, there seems to be a significant risk of recurrence of dumping. This risk is based primarily on data suggesting a significant production and export capacity by the non-cooperating exporting producers and, as demonstrated by dumping practises in the original investigation, would in all likelihood materialise as exports at dumped prices to the Community should measures be repealed.
(136)
Accordingly, it is proposed that measures applicable to imports of PET originating in the Republic of Korea should be maintained.
D. LASTING NATURE OF CHANGED CIRCUMSTANCES
(137)
In accordance with Article 11(3) of the basic Regulation, it was also examined whether the changed circumstances with respect to the original investigation regarding dumping could reasonably be considered to be of a lasting nature.
(138)
It is recalled that the scope of the interim review in respect of the Republic of Korea is limited to the dumping margins for the three companies SK Chemicals Co. Ltd, KP Chemicals Corp. and Daehan Synthetic Fibres Co. Ltd and their related companies.
(139)
For the cooperating exporting producers which exported PET to the Community during the RIP, the interim review showed that their dumping margin remained at a de minimis level. The main reason for this was that whilst the normal values and domestic sales prices for these companies had risen as compared to the data in the original investigation, sales prices on the Community market had increased correspondingly.
(140)
No indications were found suggesting that these changes leading to a de minimis dumping margin would not be of lasting nature, as all of the cooperating exporting producers had been found to operate at a high capacity utilisation rate (above 90 %). Moreover, none of them had any plans to increase their production capacity in the Republic of Korea. Indeed one of them, SK Chemicals, had set up a production plant within the Community and is more likely to decrease its exports from the Republic of Korea.
(141)
For the exporting producer Daehan, which, as stated in recital 49, eventually chose not to cooperate in the investigation, none of the facts related to this company could be verified.
(142)
Thus, the conclusion for this company had to be based on facts available in accordance with Article 18 of the basic Regulation, i.e. on the basis of information in the complaint and information in the unverified questionnaire.
(143)
For the two cooperating exporting producer groups, SK Chemicals and KP Chemicals, the circumstances under which the dumping margins have been calculated in this investigation can be considered to be of lasting nature.
(144)
For the third exporting producer Daehan Synthetic Fibres, it should be recalled that this company did not cooperate and that the analysis therefore has to be based on facts available, suggesting that dumping continue. Under these circumstances this company should be subject to the residual duty as established in the original investigation and confirmed in the most recent review.
(145)
In the present proceeding, only two Taiwanese exporting producers cooperated. The analysis on the lasting nature of changed circumstances is therefore limited to these two companies.
(146)
Far Eastern Textiles has been subject to a zero duty since Council Regulation (EC) No 83/2005 was adopted (9). The other cooperating exporting producer, Shinkong Synthetic Fibres, was allocated a dumping margin of 3,1 % by the same Regulation.
(147)
On the basis of the analysis on dumping carried out for the RIP, changed dumping margins of 3,5 % for Far Eastern and 6,5 % for Shinkong have been established.
(148)
For the two cooperating producers which exported to the Community during the RIP, there is no reason to believe that the nature of the changes between the current and the previous investigations, particularly the changes in export prices to the Community and normal values that both led to the revised dumping margins, are not of a lasting nature. With regard to the company for which a pattern of dumping was found, the investigation showed that the company had sold significant quantities to a new customer at a price that was considerably below its general export price level. As the company did not state that it will cease selling to this customer or that it will adapt its export prices, it can be concluded that the pattern will subsist. Moreover, this company made almost full use of its capacity during the RIP. Thus, major changes in the company's sales pattern which would have an impact on their price levels with according effects on normal values and export prices are unlikely to happen.
(149)
Regarding the second cooperating company, the changes observed were not huge, i.e. change in dumping margins from 3,1 % to 6,5 % due to slightly more pronounced changes in the normal values than in the export prices. This circumstance is not likely to change in the future because oil prices which are a major cost factor to produce PET are stabilising at a high level.
(150)
Accordingly, it is considered that the dumping margins for both companies, calculated on the basis of the data provided in this investigation are reliable and that the changes found are deemed to be of a lasting nature.
E. DEFINITION OF THE COMMUNITY INDUSTRY
1. Community production
(151)
PET is manufactured in the Community by the following companies:
-
producers which requested the expiry review, supported it and cooperated in the investigation (see recital 154),
-
two producers which have requested the expiry review but have not cooperated in the current investigation,
-
one subsidiary of a Korean producer located in the Community who has cooperated in the investigation and has supported the request.
(152)
PET produced by all these companies constitutes the total Community production within the meaning of Article 4(1) of the basic Regulation.
2. Community industry
(153)
The Commission examined whether the cooperating Community producers requesting or supporting the request for the expiry reviews represented a major proportion of the total Community production of PET. Those Community producers accounted for 88 % of the total Community production of PET. Those Community producers who did not fully cooperate were excluded from the definition of the Community industry. The Commission therefore considered that these fully cooperating Community producers represent the Community industry within the meaning of Articles 4(1) and 5(4) of the basic Regulation. In the original investigations, the Community industry represented more than 85 % of the total PET production in the Community at that time.
(154)
The following twelve Community producers partly mentioned in recital 16 constitute the Community industry:
Voridian BV (The Netherlands), M & G Polimeri Italia Spa (Italy), Equipolymers Srl (Italy), La Seda de Barcelona SA (Spain), Novapet SA (Spain), Selenis Industria de Polimeros SA (Portugal), Aussapol Spa (Italy), Advansa Ltd (UK), Wellman BV (The Netherlands), Boryszew subsidiary Elana Wse (Poland), V.P.I. SA (Greece), SK Eurochem (Poland).
F. SITUATION ON THE COMMUNITY MARKET
1. Consumption in the Community market
(155)
Community consumption was established on the basis of the sales volumes of the Community industry, of estimates of the sales of the other Community producers on the Community market based on data provided at the complaint stage, and Eurostat data for all Community imports from third countries.
(156)
Between 2002 and the RIP, Community consumption of the product concerned in the Community continuously increased to reach a total of 2 400 000 tonnes in the RIP. The overall increase over the period was 18 %. The increase was partly due to new applications (beer, wine, inter alia) and partly due to the increase of consumption in the countries acceding to the EU in 2004.
Table 1
2002
2003
2004
RIP
Community consumption (tonnes)
2 041 836
2 213 157
2 226 751
2 407 387
Index
100
108
109
118
2. Imports from the countries concerned
2.1. Cumulation
(157)
In the original investigation, imports of the product concerned originating in India, Indonesia, Malaysia, the Republic of Korea, Taiwan and Thailand were assessed cumulatively in accordance with Article 3(4) of the basic Regulation. It was examined whether a cumulative assessment was also appropriate in the current investigation.
(158)
With regard to imports of the two cooperating Korean companies, the investigation has shown either de minimis or no dumping. Therefore, in accordance with Article 3(4) of the basic Regulation, those imports concerned could not be cumulatively assessed. However, it was found that the margin of dumping established in relation to the imports from India, Malaysia and Taiwan was above the de minimis level. Concerning imports from Indonesia and Thailand, the investigation has shown that the imports were not representative and therefore no dumping margin could be established. However, it was also concluded that should measures be allowed to lapse, there is a likelihood of recurrence of dumping. As regards the quantities exported by each of the six countries concerned it was considered that if the measures were repealed, imports from each of the countries concerned would be likely to increase to levels significantly above those reached in the RIP and would certainly exceed the negligibility threshold. As regards the condition of competition, the investigation has confirmed that PET chips imported from the countries concerned were alike in all their essential physical and technical characteristics. Moreover, these chips were interchangeable with those produced in the Community and they were marketed in the Community during the same period, through similar sales channels under similar commercial conditions. The imported PET chips were therefore considered to compete with each other and with the PET chips produced in the Community.
(159)
In the light of the above, it was considered that all the criteria set out in Article 3(4) of the basic Regulation were met regarding imports from India, Malaysia, Thailand, Indonesia, Taiwan and the dumped imports from the Republic of Korea. The imports from the six countries concerned were therefore examined cumulatively with the exception of those non-dumped imports produced by the two cooperating Korean exporting producers.
2.2. Volume, market share and prices of imports
(160)
With respect to the six countries concerned, the import volumes, market shares and average prices developed as indicated below. The data are based on Eurostat statistics. In these figures, non-dumped Korean imports should in principle be taken out. For reasons of confidentiality, however, they have been deliberately included. The development of the trend would be however substantially the same if the data concerning the non-dumped Korean imports would be taken out.
(161)
Between 2002 and the RIP, imports from the countries concerned decreased by 13 %, i.e. from 192 000 tonnes in 2002 to 167 000 tonnes in the RIP. Compared to the year 2002, they remained unchanged in 2003 and decreased by 3 % in 2004, and by another 10 % in the RIP.
Table 2
2002
2003
2004
RIP
Volume
192 192
191 455
186 892
166 982
Index
100
100
97
87
Market share
9,4 %
8,6 %
8,4 %
7,0 %
Prices (EUR/tonne)
850
803
854
1 030
Index
100
94
100
121
G. ECONOMIC SITUATION OF THE COMMUNITY INDUSTRY
1. Preliminary remarks
(162)
At the beginning of the review, sampling of the Community producers was foreseen but considering that their number was not excessive, it was decided to include all of them and consequently, injury factors have been assessed on the basis of information collected at the level of the entire Community industry.
(163)
Pursuant to Article 3(5) of the basic Regulation, the Commission examined all relevant economic factors and indices having a bearing on the state of the Community industry.
2. Analysis of economic indicators
2.1. Production
(164)
The Community industry's production increased by 20 % between 2002 and the RIP, i.e. from a level of 1 465 000 tonnes in 2002 to 1 760 000 tonnes in the RIP. The yearly increase was 4,8 % in 2003 and 4,6 % in 2004. A further increase occurred in the RIP, when production soared by 150 000 tonnes, i.e. by 10,8 %. This was due to the restructuring process undertaken by the industry with the aim to better control the production costs and thereby take advantage of the growing consumption in the Community market which, as stated above, increased by 19 % between 2002 and the RIP (from 2 million tonnes in 2002 to 2,4 million tonnes in the RIP).
Table 3
2002
2003
2004
RIP
Production (tonnes)
1 464 522
1 534 480
1 602 086
1 760 828
Index
100
105
109
120
2.2. Capacity and capacity utilisation
(165)
Production capacity increased by 22 % between 2002 and the RIP, i.e. from a level of 1 760 000 tonnes in 2002 to 2 156 000 tonnes in the RIP. The increase occurred mainly in the RIP, when production capacity, compared to the year 2004, increased by 300 000 tonnes, i.e. 16,7 %. This significant increase of production capacity was parallel to the increase of production over the same period (see recital 164). The increase in production capacity resulted from additional investments in production lines designed to take advantage of the growing market. The capacity utilisation increased by four percentage points in 2003, remained on this level in 2004 and then decreased in the RIP by five percentage points to the level of 82 %. The decrease between 2004 and the RIP results from the significant increase of production capacity in that period. Consequently, a higher production volume in the RIP, when compared with 2004, coincided with a lower capacity utilisation rate.
Table 4
2002
2003
2004
RIP
Production capacity (tonnes)
1 760 332
1 762 378
1 848 315
2 156 294
Index
100
100
105
122
Capacity utilisation
83 %
87 %
87 %
82 %
Index
100
105
104
98
2.3. Sales and market share
(166)
The volume sold by the Community industry on the Community market increased by 21 % between 2002 and the RIP. A growth of 2 % in 2003 was followed by an increase in both 2004 and the RIP, by 8 and 11 percentage points respectively. Notwithstanding the increase of sales due to the higher consumption, the Community industry's market share fell by four percentage points in 2003 to then gradually rise by five percentage points in 2004 and one percentage point in the RIP.
Table 5
2002
2003
2004
RIP
Sales in the EC (tonnes)
1 306 768
1 333 976
1 438 883
1 586 902
Index
100
102
110
121
Market share
64 %
60 %
65 %
66 %
2.4. Growth
(167)
Overall, it has to be noted that the Community industry's market share increased by 2 % in the period considered, which shows that its growth lagged behind the growth of consumption of the overall market.
2.5. Employment
(168)
The level of employment of the Community industry increased by 18 % in the period considered. The main increase occurred in 2003 (11 percentage points) and 2004 (further six percentage points). Although this rising tendency continued in the RIP, the increase amounted to only two percentage points. This increase of 18 % during the whole period is linked to the production level which increased by 20 %.
Table 6
2002
2003
2004
RIP
Employees
1 010
1 124
1 170
1 190
Index
100
111
116
118
2.6. Productivity
(169)
The Community industry's productivity, measured as the output in tonnes per person employed per year, had an overall increase during the period considered. Productivity initially fell by 6 % in 2003 compared to the year 2002 and remained at this level in 2004 but productivity in the RIP then increased significantly by more than 8 % compared to 2004.
Table 7
2002
2003
2004
RIP
Productivity (tonne/employee)
1 450
1 365
1 369
1 480
Index
100
94
94
102
2.7. Wages
(170)
It has to be noted that PET chips production is a capital intensive industry and that therefore labour costs have a limited impact on the overall cost of the product. During the period, wages increased by 12 %, compared to a 20 % increase of the overall production cost. Another significant indicator is the cost of wages spent per tonne produced. During the period, this cost decreased by 6 %.
Table 8
2002
2003
2004
RIP
Wages (EUR million)
62,3
63,0
66,3
69,5
Index
100
101
106
112
Wages per tonne produced (EUR)
44,4
42,9
43,6
41,9
Index
100
96
98
94
2.8. Magnitude of the actual margin of dumping and recovery from the effects of past dumping
(171)
As concerns the impact on the Community industry of the magnitude of the actual margin of dumping, given the volume and the prices of the imports from the countries concerned, this impact cannot be considered to be negligible.
2.9. Sales prices and factors affecting Community prices
(172)
The unit sales prices increased from EUR 924/tonne in 2002 to EUR 1 058/tonne in the RIP. Overall, the tendency was rising (by 15 % in the whole period). This increase is to a large extent a consequence of the increase in the price of raw materials, which is due to the increase in the oil price. Although the Community industry had increased prices it was not in the position to pass the increase on to the downstream sector and fully reflect the increase of raw materials prices in its sales prices. This was principally due to the fact that the increase in the price of raw materials was higher than the increase of PET prices. In addition, the Community industry had to face the pressure from imports. With the aim to maintain its market share, the Community industry could only moderately increase its prices and thus experienced price suppression.
Table 9
2002
2003
2004
RIP
Weighted average price (EUR/tonne)
924
902
1 006
1 058
Index
100
98
109
115
2.10. Cost of production of the main raw materials
(173)
Bearing in mind that around 850 kg of purified terephthalic acid (PTA) and 350 kg of mono ethylene glycol (MEG) (the main raw materials) are needed to produce 1 tonne of PET, the costs of raw materials (PTA and MEG) increased significantly respectively by 67 % and by 31 % between 2002 and the RIP to reach the level of EUR 770/tonne (PTA) and EUR 721/tonne (MEG) (average of the RIP). Although a small decline in prices of PTA has been noted in the third quarter of 2005 when the prices dropped to the level of EUR 700/tonne, and a substantially stable price was observed for MEG, it has to be pointed out that the raw materials are purchased in advance based on long term contracts. As a result, for the period considered, despite the small decline in prices of PTA at the end of the RIP, the Community industry still bears the consequences of the heavily increased costs. In addition, due to the situation on the world oil market the prices of raw materials for the production of PET are susceptible of unpredictable changes but they are most likely to remain at a high level. All these factors contribute to an increased level of vulnerability of the Community PET producers.
Table 10
Average cost (EUR/tonne)
2002
2003
2004
RIP
-
PTA
460
566
718
770
Index
100
123
156
167
-
MEG
551
550
650
721
Index
100
100
118
131
(174)
By comparison, the average unit cost per tonne of PET chips produced by the Community industry was the following:
Table 11
2002
2003
2004
RIP
Weighted average cost (EUR/tonne)
899
918
1 013
1 092
Index
100
102
113
121
(175)
During the period considered, as indicated in tables 10 and 11, the main raw materials have continuously increased (PTA by 67 %, MEG by 31 %), while the overall cost of production raised only by 21 %. However, as shown in table 9 prices have only increased by 15 % due to the fact that the Community industry was not in a position to pass the increase on to the downstream sector and fully reflect the rise in the price of raw materials in its sales prices.
2.11. Stocks
(176)
The evolution of stocks over the whole period considered, i.e. between 2002 and the RIP is down by 10 %. However as in the original investigations, stocks should not be considered as a meaningful indicator as regards PET produced by the Community industry, given the seasonal nature of the PET market throughout the year. When compared to the production, stocks represent around 5/6 % of the output.
Table 12
2002
2003
2004
RIP
Stocks (tonnes)
101 554
110 695
90 422
91 123
Index
100
109
89
90
2.12. Profitability, return on investments and cash flow
(177)
Profitability on sales represents the profit generated by sales of the product concerned in the Community. Return on total assets and cash flow could only be measured at the level of the narrowest group of products which included the like product, pursuant to Article 3(8) of the basic Regulation. Moreover, return on investments has been calculated on the basis of return on total assets, as return on total assets is considered more relevant for the analysis of the trend.
Table 13
2002
2003
2004
RIP
Pre-tax profit margin on sales in the Community
2,7 %
-1,8 %
-0,7 %
-3,2 %
Return on total assets
2,0 %
-1,4 %
-0,6 %
-2,4 %
Cash flow (% of total sales)
18,1 %
5,5 %
10,1 %
-2,6 %
(178)
Further to the price suppression starting in 2002 and coinciding with a strong increase of dumped imports from the countries concerned, the financial situation of the Community industry deteriorated and turned into losses in 2003. After a small recovery in 2004 due to the measures imposed on PRC and Australia, losses increased to - 3,2 % in the RIP. It is therefore noted that there is a clear downward trend.
(179)
The trends for return on total assets and for cash flow developed similarly i.e. showed a relatively good situation in 2002, a deterioration in 2003, a small recovery in 2004 and a further deterioration in the RIP.
2.13. Investments and ability to raise capital
Table 14
2002
2003
2004
RIP
Investments (EUR 1 000)
31 779
42 302
63 986
50 397
Index
100
133
201
159
(180)
The investments were partly dedicated to an increase of capacity and partly to the improvement of the production process. The bulk of the expenditure was made in 2004 and during the RIP, coinciding with the increase of the capacity and with the aim to maintain market share in view of the increased consumption. Nevertheless, the current situation of the Community industry and the evolution of the Community and world markets for PET marked out by lack of profitability were not an incentive to make excessive investments. Although in some circumstances Community producers have been able to raise capital (in particular from related companies), the lack of profitability of PET did not encourage investment and in some cases the decision was postponed.
3. Conclusion on the situation of the Community industry
(181)
The constant increase of consumption partly due to new applications (beer, wine inter alia) and partly due to the increase of consumption in the countries acceding to the EU in 2004, obliged the Community industry to increase capacity and production in order not to lose market share. To do so, an important restructuring process accompanied by a frequent change of the ownership of the different producers, took place in 2004 and during the RIP. In parallel, the number of production lines was generally increased in order to follow the increase of the consumption and to concurrently achieve economies of scale. Thus, some economic indicators, i.e. consumption, capacity production, production, EU sales, employment indeed followed a positive trend.
(182)
However, all those restructuring efforts described above could not counterbalance the impact of the constant and massive increase of raw material prices in the period considered. The higher raw material costs could not be passed on to the downstream sector to the extent it would have been necessary to maintain a certain level of profitability. This coincided with the low price level of the imports from the countries concerned which clearly exerted a significant downward pressure on the price of the Community industry. Thus, despite the apparent positive developments concerning production, sales and sales price, the overall financial situation of the Community industry deteriorated and is reflected in the negative developments of profitability (from 2,7 % profit in 2002 to 3,2 % losses in the RIP), of export sales, production cost, return on investments and cash flow.
(183)
Consequently, despite some apparent positive trends showed by the injury indicators, the situation of the Community industry is still far from the levels that could be expected had it fully recovered from the injury found in the original investigations.
(184)
It is therefore concluded that the situation of the Community industry has slightly improved, as compared to the period preceding the imposition of measures, but is still very fragile and vulnerable. Furthermore, the price pressure from imports did not allow the Community industry to fully reflect the increase of raw materials prices in its sales prices.
4. Imports from other countries
4.1. Other countries concerned by anti-dumping measures
(185)
As mentioned in recital 2, it is recalled that, since August 2004, there have also been definitive anti-dumping measures in force on imports of PET originating in Australia and the PRC.
(186)
During the period considered, the total volume of imports from these countries increased by 12 % (from 65 000 tonnes to 73 000 tonnes). Although there was a significant increase in the market share (by four percentage points) in the year 2003, this rising tendency was reversed in 2004 when the market share of imports decreased to the level of 2,4 %. In the RIP a slight increase of 0,6 % stemming from Chinese imports has been noted. The effect of the definitive anti-dumping duties is reflected as from 2004. Whereas imports from Australia ceased completely, the volume of imports from China increased steadily by 130 % in 2003, decreased in 2004 in coincidence with the measures and increased again by 47 % during the RIP. Australian prices decreased by 7 % in 2003 and by another 6 % in 2004. Chinese prices increased slowly in 2003 and 2004 and by 24 % in the RIP, i.e. from EUR 827 to EUR 1 022 per tonne. As a conclusion it is noted that significant imports from these two countries were made at prices constantly lower than the Community prices, thus contributing to the injury suffered by the Community industry.
Table 15
2002
2003
2004
RIP
Australia
Volume (tonnes)
17 179
18 727
2 842
-
Price (EUR/tonne)
851
789
741
-
Market share
0,8 %
0,8 %
0,1 %
-
People's Republic of China
Volume (tonnes)
47 875
131 343
49 678
72 814
Price (EUR/tonne)
804
806
827
1 022
Market share
2,3 %
5,9 %
2,2 %
3 %
Total tonnes
65 054
150 070
52 520
72 814
Total market share
3,1 %
6,8 %
2,4 %
3 %
4.2. Other third countries not mentioned above
(187)
In these figures, non-dumped Korean imports should in principle be included. For reasons of confidentiality they have been deliberately taken out. However the development of the trend would be substantially the same if the Korean non-dumped imports were to be included.
(188)
Between 2002 and the RIP, total imports of PET originating in other countries have increased by 136 %, to reach 174 000 tonnes. Their market share in the EU increased from 3,6 to 7,1 % in the period considered. The table below illustrates these trends.
Table 16
2002
2003
2004
RIP
Total volume (tonnes) of which:
73 549
119 973
182 687
173 597
Pakistan
28 558
83 208
55 125
73 426
USA
20 570
16 105
49 763
50 393
Mexico
1 476
20
32 112
20 501
Turkey
7 208
17 001
24 032
15 374
Others
15 737
3 639
21 655
13 903
Market share
3,6 %
5,4 %
8,2 %
7,1 %
(189)
Imports from Pakistan rose by 157 % over the period considered, and in particular after the termination of the proceeding against them in 2004. Imports from the United States increased considerably, i.e. by 144 % to reach 50 000 tonnes in the RIP. Imports from Mexico passed from 1 500 tonnes in 2002 to 20 000 tonnes in the RIP, an increase of 1 390 %. As far as Turkey is concerned, its imports were rising significantly between 2002 and 2004 (by 244 %), to then decrease in the RIP by 36 %. Regarding the prices it is important to note, however, that the prices of the imports from the United States, Mexico and Turkey increased and were higher than prices of other imports and of those of the Community industry. Moreover, most likely, imports from USA are Pet G, a special variety of PET having higher viscosity requirements and sold on average at 50 % more than normal PET. Imports prices for Pakistan were lower than the average prices of the Community industry from 2002 to 2004. During the RIP, import prices from Pakistan increased at the level of the Community industry. Therefore, it is considered that these imports could not affect the situation of the Community market.
5. Export Activity of the Community Industry
(190)
The export activity of the Community industry showed a downward trend during the period considered, i.e. decreasing from 7,9 % to 4,9 % of the Community industry's total sales. Only in 2003, the Community industry's export performance increased considerably, probably due to low EU sales prices. However, during the RIP, they represent less than 5 % of the total sales. It should be noted that export prices were constantly above EC sales price.
Table 17
2002
2003
2004
RIP
Export sales (tonnes)
111 381
141 627
97 686
82 388
Index
100
127
87
74
% of total sales
7,9 %
9,6 %
6,3 %
4,9 %
Price per tonne
959
942
1 026
1 096
Index
100
98
107
114
H. CONCLUSION ON THE LIKELIHOOD OF CONTINUATION OR RECURRENCE OF INJURY
(191)
As concluded previously, the exporting producers in India, Indonesia, Thailand, the Republic of Korea, Taiwan and Malaysia have the potential to increase their export volumes to the Community market.
(192)
The cif export prices of PET originating in India, Thailand and Malaysia were higher than the prices of the Community industry. The difference, however, was not significant which leads to the conclusion that in the absence of anti-dumping duties these countries could exercise an even stronger price pressure on the Community industry. Moreover, the prices of Korean, Taiwanese and Indonesian imports into the Community were lower than the Community price. The difference was small for the Republic of Korea and Taiwan (3 to 4 %) and significant in the case of Indonesia (amounting to 27 %). Therefore there is a clear indication for a likelihood of continuation or recurrence of injury.
(193)
As indicated above, the situation of the Community industry has also been considerably affected by the imports from the PRC. The prices of those imports were below the Community price (EUR 1 022/tonne as compared to 1 058 in the Community). In addition, in terms of volume, the imports from the PRC amounted to 73 000 tonnes, representing a market share of 3 % in the RIP.
(194)
Furthermore, in terms of volumes of imports from the countries concerned, it can be concluded that there is likelihood that those quantities will significantly increase due to the overall production capacity and spare capacity available in the countries concerned as further detailed in recital 199.
(195)
On the basis of the foregoing, it is concluded that the import prices would most likely be lower on the Community market in the absence of anti-dumping measures, as the producers in these countries would possibly try to regain lost market shares or to increase their current market shares. Such price behaviour, coupled with the ability of the exporting producers in these countries to sell significant quantities of PET on the Community market, would in all likelihood have the effect of reinforcing the price pressure, with an expected further negative impact on the situation of the Community industry.
(196)
In this context, it should be recalled that in all the six countries concerned a significant spare production capacity was established, ranging from 37 000 tonnes in Malaysia to 400 000 tonnes in Taiwan, and totalling around 1 million tonnes, i.e. 45 % of the Community industry production capacity. In addition the import prices oscillated in the period concerned slightly above or below Community prices. The prices of imports originating in Taiwan, for example, a country with by far the highest spare production capacity, fell during the period when anti-dumping measures were in force below the level of Community prices. Furthermore, the prevailing price level in the Community makes the EU an attractive market. Thus, it can be concluded that should the measures be allowed to lapse, there exists a strong incentive for producers in the countries concerned to redirect their sales to the EU market at low prices.
(197)
Moreover, recent publicly available information indicates that unusual quantities of PET chips have been purchased by operators in Bulgaria and Romania from the Asian countries under review. The shipments were due to take place in November and December 2006. This information is an indication of the likelihood of recurrence of injury to the Community industry, as it clearly demonstrates that significantly more imports from the countries concerned would be present on the Community market in the absence of anti-dumping measures.
(198)
As shown above, although the situation of the Community industry has slightly improved when compared to the one before the imposition of anti-dumping measures, it remains vulnerable and fragile. It is likely that if the Community industry was exposed to increased volumes of imports from the countries concerned at dumped prices, this would result in a deterioration of its financial situation and most probably in the further loss of profitability. On this basis, it is therefore concluded that the repeal of the measures against India, Indonesia, Thailand, the Republic of Korea, Taiwan and Malaysia would in all likelihood result in the recurrence of injury to the Community industry.
I. COMMUNITY INTEREST
1. Introduction
(199)
According to Article 21 of the basic Regulation, it was examined whether the maintenance of the existing anti-dumping measures would be against the interest of the Community as a whole. The determination of the Community interest was based on an appreciation of all the various interests involved. The present investigation analyses a situation in which anti-dumping measures have already been in place and allows for assessment of any undue negative impact on the parties concerned due to the current anti-dumping measures.
(200)
On this basis, it was examined whether, despite the conclusions on the likelihood of a continuation or recurrence of injurious dumping, compelling reasons existed which would lead to the conclusion that it is not in the Community interest to maintain measures in this particular case.
2. Interest of the Community industry
(201)
As outlined above, there is a clear likelihood of recurrence of injurious dumping if measures were to be repealed. All Community producers but two fully cooperated and indicated their support for the ongoing measures. One Community producer linked to one of the Korean exporters has also expressed support for the measures. It has to be considered, however, that its mother company is exporting at 0 % duty.
(202)
The continuation of anti-dumping measures on imports from countries concerned would enhance the possibility for the Community industry to reach a reasonable level of profitability. More importantly, it will avoid that the Community industry is pushed out of the market. Indeed, there is a clear likelihood of injurious dumping in substantial volumes which the Community industry could not withstand. The Community industry would therefore continue to benefit from the maintenance of the current anti-dumping measures, in particular as there are now also measures against imports originating in Australia and the PRC.
3. Interest of importers
(203)
The Commission sent questionnaires to 18 importers/traders of the product concerned. However, cooperation from the importers/traders that are purchasing mainly from the countries concerned and representing around 5 % of the EU consumption was very low. Only one importer/trader supplied data and the bulk of its purchases were made from the Community industry. Only marginal quantities were from the countries concerned or from other exporting countries. This importer/trader would prefer a market with zero duties although they are currently enjoying healthy financial results. Bearing in mind that the measures in force did not considerably affect importers, it is concluded that maintaining the existing anti-dumping measures against imports originating in India, Indonesia, Thailand, Malaysia, the Republic of Korea and Taiwan would not have a significant negative effect on the situation of the importers in the Community.
4. Interest of converters/users
(204)
The Commission sent questionnaires to 47 known converters/users. Only 10 converters/users with an overall low representativity replied to the questionnaire.
(205)
According to the information on purchases supplied in their responses to the questionnaire, cooperating converters/users during the RIP represent about 20 % of total Community consumption of PET. They purchased during the RIP 95 % of their PET from Community producers and the remainder from imports originating in countries other than those subject to these reviews. A number of arguments against the imposition of duties were presented.
(206)
Five converters (transforming PET chips in pre-forms and bottle grade and representing 10 % of the consumption) replied to the questionnaire. The cost of PET chips accounts for 55 % of their final product (mostly pre-forms). It has been established that they import negligible quantities from the countries concerned and other third countries. Nevertheless they oppose the imposition of duties claiming that the prolongation of the measures could have the effect of artificially raising the prices in Europe.
(207)
Five users accounting for about 10 % of the consumption supplied rather incomplete data. The low level of cooperation from the big users is likely to be due to the fact that the last investigation concerning imports from PRC, Australia and Pakistan took place only two years ago. PET costs account for around 6/7 % of the overall cost and are therefore rather limited. Although they have declared no imports from the countries concerned, similarly as the converters, they oppose the imposition of duties claiming that the measures could have the effect of artificially raising the prices in Europe.
(208)
Considering the rather good financial situation of the downstream industry, in contrast to the one of the Community industry, no converter/user put forward the argument that maintaining the current duties could lead to a loss of jobs or to moving manufacturing facilities overseas.
(209)
Furthermore, in terms of output, the Community industry adapted its size to match the increased consumption and therefore it is very likely that the unused capacity of the Community industry could fully cover the amount of the imports.
(210)
Bearing in mind that there are still alternative sources of supply with no anti-dumping measures, i.e. Mexico, Turkey, USA, Brazil, Pakistan, Iran, Saudi Arabia the Community users would moreover be able to rely on (or to switch to) diversified suppliers of the product concerned.
(211)
As concerns the performance of the user industry, the investigation has shown that during the period considered, the cooperating users increased their turnover, maintained employment stable and rather improved their overall profitability. Therefore it was found that they were not negatively affected by the anti-dumping measures.
(212)
On the basis of the above, it is concluded that maintaining the existing anti-dumping measures against imports originating in India, Indonesia, Thailand, Malaysia, the Republic of Korea and Taiwan would not have a significant negative effect on the situation of the users in the Community.
5. Interest of suppliers
(213)
The suppliers of raw material (mono ethylene glycol (MEG)) and purified terephthalic acid (PTA), DMT and isophthalic acid (IPA), all petrochemical products derivatives of naphtha, clearly indicated their support for the measures. They would benefit from the fact that the Community industry would very likely be able to recover from the effects of dumping and thus improve their performance.
6. Conclusion on Community interest
(214)
Taking into account all of the factors outlined above, it is concluded that there are no compelling reasons against the maintenance of the current anti-dumping measures.
J. RELATION BETWEEN ANTI-DUMPING AND COUNTERVAILING MEASURES
(215)
For one export country, namely India, a parallel investigation on the expiry of countervailing measures has been carried out (see recital 10). This investigation confirmed the necessity to continue the application of such measures at unchanged levels. The present investigation also concluded that anti-dumping measures on exports from India should be kept in force at unchanged levels. In that respect, reference is made to recital 125 of Regulation (EC) No 2604/2000. As the measures currently proposed for exports of PET from India remain unchanged, it follows that Article 14(1) of the basic anti-dumping Regulation and Article 24(1) of Council Regulation (EC) No 2026/97 are complied with.
K. FINAL PROVISIONS
(216)
All parties were informed of the essential facts and considerations on the basis of which it was intended to recommend that the existing measures be maintained respectively their levels be amended where warranted. They were also granted a period to submit comments and claims subsequent to disclosure. In particular one Indian exporter alleged that in the absence of measures it is not likely that India will re-direct sales to the Community. This exporter claimed that emerging markets are more attractive than the Community, that Indian demand is growing fast and that, therefore, no spare capacity is available. It is however to be considered that, notwithstanding an increase of the demand in the Indian market, the investigation at company level indicated spare capacities, in excess of the increase in demand on the Indian market, as also confirmed by the market intelligence report mentioned at recital 74. It is therefore concluded that none of the disclosure comments received were such as to alter the conclusions as contained in this regulation.
(217)
It follows from the above that the anti-dumping duties are maintained respectively, their levels are amended where warranted,
HAS ADOPTED THIS REGULATION:
Article 1
1. A definitive anti-dumping duty is hereby imposed on imports of polyethylene terephthalate having a viscosity number of 78 ml/g or higher, according to the ISO Standard 1628-5, falling within CN code 3907 60 20 and originating in India, Indonesia, Malaysia, the Republic of Korea, Taiwan and Thailand.
2. Except as provided for in Article 2, the rate of the anti-dumping duty applicable to the net, free-at-Community frontier price, before duty for products manufactured by the companies listed below shall be as follows:
Country
Company
Anti-dumping duty
(EUR/tonne)
TARIC additional code
India
Pearl Engineering Polymers Ltd
130,8
A182
India
Reliance Industries Ltd
181,7
A181
India
SENPET Ltd
200,9
A183
India
Futura Polyesters Ltd
161,2
A184
India
South Asian Petrochem Ltd
88,9
A585
India
All other companies
181,7
A999
Indonesia
P.T. Mitsubishi Chemical Indonesia
187,7
A191
Indonesia
P.T. Indorama Synthetics Tbk
92,1
A192
Indonesia
P.T. Polypet Karyapersada
178,9
A193
Indonesia
All other companies
187,7
A999
Malaysia
Hualon Corp. (M) Sdn. Bhd.
36,0
A186
Malaysia
MpI Polyester Industries Sdn. Bhd.
160,1
A185
Malaysia
All other companies
160,1
A999
Republic of Korea
SK Chemicals Group:
SK Chemicals Co. Ltd
0
A196
Huvis Corp.
0
A196
Republic of Korea
KP Chemicals Group:
Honam Petrochemicals Corp.
0
A195
KP Chemicals Corp.
0
A195
Republic of Korea
All other companies
148,3
A999
Taiwan
Far Eastern Textile Ltd
36,3
A808
Taiwan
Shinkong Synthetic Fibers Corp.
67,0
A809
Taiwan
All other companies
143,4
A999
Thailand
Thai Shingkong Industry Corp. Ltd
83,2
A190
Thailand
Indo Pet (Thailand) Ltd
83,2
A468
Thailand
All other companies
83,2
A999
3. In cases where goods have been damaged before entry into free circulation and, therefore, the price actually paid or payable is apportioned for the determination of the customs value pursuant to Article 145 of 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 (10), the amount of anti-dumping duty, calculated on the basis of the amounts set above, shall be reduced by a percentage which corresponds to the apportioning of the price actually paid or payable.
4. Notwithstanding paragraphs 1 and 2, the definitive anti-dumping duty shall not apply to imports released for free circulation in accordance with Article 2.
5. Unless otherwise specified, the provisions in force concerning customs duties shall apply.
Article 2
1. Imports shall be exempt from the anti-dumping duties imposed by Article 1 provided that they are produced and directly exported (i.e. invoiced and shipped) to a company acting as an importer in the Community by the companies mentioned in paragraph 3, declared under the appropriate TARIC additional code and that the conditions set out in paragraph 2 are met.
2. When the request for release for free circulation is presented, exemption from the duties shall be conditional upon presentation to the customs service of the Member State concerned of a valid ‘Undertaking Invoice’ issued by the exporting companies mentioned in paragraph 3, containing the essential elements listed in the Annex. Exemption from the duty shall further be conditional on the goods declared and presented to customs corresponding precisely to the description on the Undertaking Invoice.
3. Imports accompanied by an Undertaking Invoice shall be declared under the following TARIC additional codes:
Country
Company
TARIC additional code
India
Pearl Engineering Polymers Ltd
A182
India
Reliance Industries Ltd
A181
India
Futura Polyesters Ltd
A184
India
South Asian Petrochem Ltd
A585
Indonesia
P.T. Polypet Karyapersada
A193
Article 3
This Regulation shall enter into force on the day following its publication in the Official Journal of the European Union.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 22 February 2007.
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COMMISSION REGULATION (EC) No 1218/2007
of 18 October 2007
fixing the export refunds on beef and veal
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Council Regulation (EC) No 1254/1999 of 17 May 1999 on the common organisation of the market in beef and veal (1), and in particular the third subparagraph of Article 33(3) thereof,
Whereas:
(1)
Article 33(1) of Regulation (EC) No 1254/1999 provides that the difference between prices on the world market for the products listed in Article 1(1) of that Regulation and prices for those products within the Community may be covered by an export refund.
(2)
Given the present situation on the market in beef and veal, export refunds should therefore be fixed in accordance with the rules and criteria provided for in Article 33 of Regulation (EC) No 1254/1999.
(3)
The second subparagraph of Article 33(3) of Regulation (EC) No 1254/1999 provides that the world market situation or the specific requirements of certain markets may make it necessary to vary the refund according to destination.
(4)
Refunds should be granted only on products that are allowed to move freely in the Community and that bear the health mark as provided for in Article 5(1)(a) 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 (2). Those products should also comply with the requirements of Regulation (EC) No 852/2004 of the European Parliament and of the Council of 29 April 2004 on the hygiene of foodstuffs (3), and of 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 (4).
(5)
Pursuant to the third subparagraph of Article 6(2) of Commission Regulation (EEC) No 1964/82 of 20 July 1982 laying down the conditions for granting special export refunds on certain cuts of boned meat of bovine animals (5), the special refund is to be reduced if the quantity of boned meat to be exported amounts to less than 95 %, but not less than 85 %, of the total weight of cuts produced by boning.
(6)
Commission Regulation (EC) No 838/2007 (6) should therefore be repealed and replaced by a new Regulation.
(7)
The measures provided for in this Regulation are in accordance with the opinion of the Management Committee for Beef and Veal,
HAS ADOPTED THIS REGULATION:
Article 1
1. Export refunds as provided for in Article 33 of Regulation (EC) No 1254/1999 shall be granted on the products and for the amount set out in the Annex to this Regulation subject to the conditions provided for in paragraph 2 of this Article.
2. The products eligible for a refund under paragraph 1 must meet the relevant requirements of Regulations (EC) No 852/2004 and 853/2004, notably preparation in an approved establishment and compliance with the health marking requirements laid down in Annex I, Section I, Chapter III of Regulation (EC) No 854/2004.
Article 2
In the case referred to in the third subparagraph of Article 6(2) of Regulation (EEC) No 1964/82 the rate of the refund on products falling within product code 0201 30 00 9100 shall be reduced by 7 EUR/100 kg.
Article 3
Regulation (EC) No 838/2007 is repealed.
Article 4
This Regulation shall enter into force on 19 October 2007.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 18 October 2007.
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Commission Regulation (EC) No 368/2002
of 28 February 2002
establishing the standard import values for determining the entry price of certain fruit and vegetables
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Commission Regulation (EC) No 3223/94 of 21 December 1994 on detailed rules for the application of the import arrangements for fruit and vegetables(1), as last amended by Regulation (EC) No 1498/98(2), and in particular Article 4(1) thereof,
Whereas:
(1) Regulation (EC) No 3223/94 lays down, pursuant to the outcome of the Uruguay Round multilateral trade negotiations, the criteria whereby the Commission fixes the standard values for imports from third countries, in respect of the products and periods stipulated in the Annex thereto.
(2) In compliance with the above criteria, the standard import values must be fixed at the levels set out in the Annex to this Regulation,
HAS ADOPTED THIS REGULATION:
Article 1
The standard import values referred to in Article 4 of Regulation (EC) No 3223/94 shall be fixed as indicated in the Annex hereto.
Article 2
This Regulation shall enter into force on 1 March 2002.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 28 February 2002.
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*****
COMMISSION DECISION
of 5 June 1990
amending Decision 90/135/EEC relating to the plans of certain third countries concerning examination of residues of fresh meat for substances other than those having a hormonal action
(90/262/EEC)
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Economic Community,
Having regard to Council Directive 72/462/EEC of 12 December 1972 on health and veterinary inspection problems upon importation of bovine animals and swine, fresh meat or meat products from third countries (1), as last amended by Directive 89/662/EEC (2), and in particular Article 3 thereof,
Having regard to Council Directive 86/469/EEC of 16 September 1986 concerning the examination of animals and fresh meat for the presence of residues (3), and in particular Article 7 thereof,
Whereas, without prejudice to Commission Decision 89/15/EEC (4), as last amended by Decision 90/152/EEC (5), in application of Commission Decision 90/135/EEC (6), as amended by Decision 90/164/EEC (7), Member States continue to authorize imports of fresh meat from third countries appearing in the Annex to this Decision;
Whereas the authorities of Mexico have transmitted a satisfactory plan specifying the guarantees offered in respect of monitoring of residues in fresh meat for substances other than those having a hormonal action;
Whereas for these types of substances, imports of fresh meat from Mexico should be authorized and Decision 90/135/EEC consequently amended;
Whereas the measures provided for in this Decision are in accordance with the opinion of the Standing Veterinary Committee,
HAS ADOPTED THIS DECISION:
Article 1
At the end of Article 1 of Decision 90/135/EEC, the phrase 'and if necessary under the conditions laid down in the Annex to this Decision' is hereby repealed.
Article 2
Article 3 of Decision 90/135/EEC is hereby repealed.
Article 3
The Annex to Decision 90/135/EEC is hereby replaced by the Annex to this Decision.
Article 4
This Decision is addressed to the Member States.
Done at Brussels, 5 June 1990.
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Commission Regulation (EC) No 923/2004
of 29 April 2004
on granting import licences for cane sugar for the purposes of certain tariff quotas and preferential agreements
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Council Regulation (EC) No 1260/2001 of 19 June 2001 on the common organisation of the markets in the sugar sector(1),
Having regard to Council Regulation (EC) No 1095/96 of 18 June 1996 on the implementation of the concessions set out in Schedule CXL drawn up in the wake of the conclusion of the GATT XXIV.6 negotiations(2),
Having regard to Commission Regulation (EC) No 1159/2003 of 30 June 2003 laying down detailed rules of application for the 2003/2004, 2004/2005 and 2005/2006 marketing years for the import of cane sugar under certain tariff quotas and preferential agreements and amending Regulations (EC) No 1464/95 and (EC) No 779/96(3), and in particular Article 5(3) thereof,
Whereas:
(1) Article 9 of Regulation (EC) No 1159/2003 lays down detailed rules on determining the delivery obligations at zero duty for products falling within CN code 1701 expressed as white sugar equivalent for imports originating in countries which are parties to the ACP Protocol and the India Agreement.
(2) Commission Regulation (EC) No 919/2004 of 29 April 2004 amending the delivery obligations for cane sugar to be imported under the ACP Protocol and the India Agreement for the 2003/2004 delivery period(4) fixed a delivery obligation for Mauritius higher than all the import licence applications submitted to date for the 2003/2004 delivery period.
(3) A check on import licence applications submitted for the 2003/2004 delivery period for Malawi has shown that in the case of the delivery obligation for cane sugar originating in Malawi quantities of sugar are still available.
(4) In these circumstances and in the interests of clarity, it should be indicated that the maximum quantities of the delivery obligations for Mauritius and Malawi for the delivery period concerned have not been reached,
HAS ADOPTED THIS REGULATION:
Article 1
For import licence applications submitted in the period from 19 to 23 April 2004 under Article 5(1) of Regulation (EC) No 1159/2003, licences shall be issued up to the maximum quantities indicated in the Annex to this Regulation.
Article 2
This Regulation shall enter into force on 30 April 2004.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 29 April 2004.
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Commission Regulation (EC) No 1910/2002
of 24 October 2002
fixing the export refunds on rice and broken rice and suspending the issue of export licences
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Council Regulation (EC) No 3072/95 of 22 December 1995 on the common organisation of the market in rice(1), as last amended by Commission Regulation (EC) No 411/2002(2), and in particular the second subparagraph of Article 13(3) and (15) thereof,
Whereas:
(1) Article 13 of Regulation (EC) No 3072/95 provides that the difference between quotations or prices on the world market for the products listed in Article 1 of that Regulation and prices for those products within the Community may be covered by an export refund.
(2) Article 13(4) of Regulation (EC) No 3072/95, provides that when refunds are being fixed account must be taken of the existing situation and the future trend with regard to prices and availabilities of rice and broken rice on the Community market on the one hand and prices for rice and broken rice on the world market on the other. The same Article provides that it is also important to ensure equilibrium and the natural development of prices and trade on the rice market and, furthermore, to take into account the economic aspect of the proposed exports and the need to avoid disturbances of the Community market with limits resulting from agreements concluded in accordance with Article 300 of the Treaty.
(3) Commission Regulation (EEC) No 1361/76(3) lays down the maximum percentage of broken rice allowed in rice for which an export refund is fixed and specifies the percentage by which that refund is to be reduced where the proportion of broken rice in the rice exported exceeds that maximum.
(4) Export possibilities exist for a quantity of 14410 tonnes of rice to certain destinations. The procedure laid down in Article 7(4) of Commission Regulation (EC) No 1162/95(4), as last amended by Regulation (EC) No 1322/2002(5), should be used. Account should be taken of this when the refunds are fixed.
(5) Article 13(5) of Regulation (EC) No 3072/95 defines the specific criteria to be taken into account when the export refund on rice and broken rice is being calculated.
(6) The world market situation or the specific requirements of certain markets may make it necessary to vary the refund for certain products according to destination.
(7) A separate refund should be fixed for packaged long grain rice to accommodate current demand for the product on certain markets.
(8) The refund must be fixed at least once a month; whereas it may be altered in the intervening period.
(9) It follows from applying these rules and criteria to the present situation on the market in rice and in particular to quotations or prices for rice and broken rice within the Community and on the world market, that the refund should be fixed as set out in the Annex hereto.
(10) For the purposes of administering the volume restrictions resulting from Community commitments in the context of the WTO, the issue of export licences with advance fixing of the refund should be restricted.
(11) The measures provided for in this Regulation are in accordance with the opinion of the Management Committee for Cereals,
HAS ADOPTED THIS REGULATION:
Article 1
The export refunds on the products listed in Article 1 of Regulation (EC) No 3072/95 with the exception of those listed in paragraph 1(c) of that Article, exported in the natural state, shall be as set out in the Annex hereto.
Article 2
With the exception of the quantity of 14410 tonnes provided for in the Annex, the issue of export licences with advance fixing of the refund is suspended.
Article 3
This Regulation shall enter into force on 25 October 2002.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 24 October 2002.
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Commission Decision
of 19 December 2000
amending Annex I, Chapter 14 of Council Directive 92/118/EEC 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
(notified under document number C(2000) 3866)
(Text with EEA relevance)
(2001/7/EC)
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Council Directive 92/118/EEC 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(1), and in particular Article 15 thereof, as last amended by Commission Decision 1999/724/EC(2),
Whereas:
(1) Thee are some linguistic translation differences between the German text and the other language versions concerning the cross-border trade in unprocessed manure which should be resolved and it is opportune in view of possible disease risks to introduce better controls on such movements.
(2) It is necessary to take into account in such cross-border movements the disease situation of Member States.
(3) The measures provided for in this Decision are in accordance with the opinion of the Standing Veterinary Committee,
HAS ADOPTED THIS DECISION:
Article 1
In Annex I, Chapter 14, Part I.A, to Council Directive 92/118/EEC point 1(a), is replaced with:
"1. (a) Trade in unprocessed manure of species other than poultry or equidae is prohibited, except for manure:
from an area or holding which is not subject to restrictions by virtue of a serious transmissible disease,
and
intended for spreading under the control of the competent authorities on land forming part of or belonging to the same holding, whether separated or not, located on both sides of the frontier between Member States and within a distance of approximately 20 kilometres. Records should be kept by the owner of the holding concerning these cross-frontier movements in order to be approved. The competent authority shall keep a register of such approved holdings."
Article 2
This Decision shall apply from 1 January 2001.
Article 3
This Decision is addressed to the Member States.
Done at Brussels, 19 December 2000.
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COUNCIL REGULATION (EEC) No 3072/90 of 22 October 1990 again amending Articles 6 and 17 of the Protocol concerning the concept of 'originating products' and methods of administrative cooperation to the Cooperation Agreement between the European Economic Community and the Kingdom of Morocco
THE COUNCIL OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Economic Community, and in particular Article 113 thereof,
Having regard to the proposal from the Commission,
Whereas the Cooperation Agreement between the European Economic Community and the Kingdom of Morocco (1) was signed on 27 April 1976 and entered into force on 1 November 1978;
Whereas Article 6 of the Protocol concerning the definition of the concept of 'originating products' and methods of administrative cooperation (2) to the said Agreement (hereinafter referred to as 'the Protocol'), as amended by Decision No 1/86 (3) of the Cooperation Council, provides that, in the case of an automatic change in the base date applicable to the amounts expressed in ecus, the Community may introduce revised amounts when necessary;
Whereas the equivalent value of the ecu in certain national currencies on 1 October 1988 was less than the corresponding value on 1 October 1986; whereas the automatic change in the base date would, in the case of conversion into the national currencies concerned, have the effect of reducing the limits which permit the presentation of simplified documentary evidence; whereas, in order to avoid this effect, it is necessary to increase such limits expressed in ecus,
HAS ADOPTED THIS REGULATION:
Article 1
The Protocol is hereby amended as follows:
1. In the second subparagraph of Article 6 (1), ECU 2 590 shall be replaced by ECU 2 820;
2. In Article 17 (2), ECU 180 shall be replaced by ECU 200 and ECU 515 by ECU 565.
Article 2
This Regulation shall enter into force on 1 November 1990.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Luxembourg, 22 October 1990.
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COMMISSION DECISION
of 23 November 2005
on the State Aid schemes implemented by Slovenia in the framework of its legislation on Carbon Dioxide Emission Tax
(notified under document number C(2005) 4435)
(Only the Slovene version is authentic)
(Text with EEA relevance)
(2006/640/EC)
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community, and in particular the first subparagraph of Article 88(2) thereof,
Having regard to the Agreement on the European Economic Area, and in particular Article 62(1)(a) thereof,
Having called on interested parties to submit their comments pursuant to the provision(s) cited above (1),
Whereas:
(1)
On 18 October 2002, the Slovene authorities informed the Commission about the existence of a State aid scheme whereby certain categories of companies benefit from a tax reduction under the national CO2 emission tax. The scheme was registered at the Commission as case SI 1/2003. The scheme had previously been approved by the national State aid authority of Slovenia in conformity with Annex IV, Chapter 3, paragraph 2 of the Treaty of Accession of the Czech Republic, Estonia, Cyprus, Latvia, Lithuania, Hungary, Malta, Poland, Slovenia and Slovakia to the European Union (2) (Treaty of Accession), on the basis of the Community Guidelines on State aid for environmental protection (Environmental guidelines) (3).
(2)
Due to the lack of complete information concerning the measure, the Commission asked Slovenia for further clarification and the scheme could not be included in the existing aid list under the Appendix to the Annex IV of the Treaty of Accession.
(3)
Further information was submitted to the Commission by the Slovene authorities on 7 November 2002, 1 April 2003, 16 May 2003, 1 October 2003, 4 February 2004, 1 June 2004, 17 September 2004 and 28 September 2004. Two meetings took place between the Slovene authorities and the Commission on 24 November 2003 and 8 March 2004.
(4)
Meanwhile, major changes took place in the EU legislation that had a significant impact on the Slovene CO2 tax system:
-
the Council Directive 2003/96 of 27 October 2003 on the taxation of energy products and electricity (4)(‘Energy Taxation Directive’),
-
the Directive 2003/87/EC of the European Parliament and Council of 13 October 2003 establishing a scheme for greenhouse gas emission allowances trading within the Community and amending Council Directive 96/61/EC (5) (‘Directive on emission trading’), and
-
the Directive 2004/8/EC of the European Parliament and Council of 11 February 2004 on the promotion of cogeneration (6)
have entered into force on their respective days of publication.
(5)
Consequently, the Slovene authorities decided to modify their tax scheme, and notified the new - at that time draft - legislation to the Commission. The Commission registered the new scheme in June 2004, under the number N 402/2004.
(6)
Based on the information at its disposal, the Commission had doubts as to the compatibility of certain parts of both measures SI 1/2003 and N 402/2004 with the common market. Thus, on 14 December 2004, it initiated a formal investigation procedure on the basis of articles 4.4 and 6 of Council Regulation (EC) No 659/1999 on the rules for the application of article 93 of the EC Treaty (7) and requested the Slovene authorities to submit their comments (the‘Opening Decision’). A meaningful summary of that Opening Decision was published on 22 February 2005 in the Official Journal of the European Union (8). All interested parties were invited to submit their comments within one month of the date of publication.
(7)
After the opening of the formal investigation procedure, the Commission registered the case number C 47/2004 for case SI 1/2003 and the case number C 44/2004 for case N 402/2004.
(8)
By letter dated 18 January 2005, registered on 20 January 2005, the Slovene authorities submitted their comments with regard to the doubts raised by the Commission in its Opening Decision. On 4 April and 7 July 2005, the Commission sent further questions to the Slovene authorities, which were answered respectively by letters dated 17 May and 8 August 2005.
(9)
The Commission did not receive any comments from third parties.
(10)
For an easier understanding of the amendments introduced by the new legislation, the Opening Decision covered both the old system of tax reductions (case SI 1/2003) and the new scheme (case N 402/2004). For reasons of clarity and coherence, the present decision also covers both cases C 44/2004 and C 47/2004.
A) SCHEME C 47/2004 (EX CASE SI 1/2003)
1. DESCRIPTION OF THE SCHEME
(11)
The scheme is based on the ‘Regulation on tax for air pollution with CO2 emissions’ of 17 October 2002, and entered into force in Slovenia in October 2002 (the ‘Regulation’). The new, modified legislation (scheme C 44/2004) entered into force on 1 May 2005, and replaced the Regulation.
(12)
Therefore, by the present decision the Commission assesses the compatibility of the Regulation with the common market, covering the period of time between 1 May 2004 (date of accession of Slovenia to the EU) and 1 May 2005 (end of application of the Regulation).
(13)
The Regulation foresaw a tax levied on the basis of the quantity of CO2 emitted by each installation. It contained three categories of tax reductions that were submitted to the Commission for approval as operating aid measures under the Environmental guidelines:
(i)
Companies that produce electricity in combined heat and power (CHP) installations could be granted a tax reduction if they had an at least 5 % energy saving for existing installations, or 10 % for new installations.
In its Opening Decision, the Commission found this aid compatible with article 87(3)(c) of the EC Treaty.
(ii)
The second category of tax reductions concerned all installations that were operating in Slovenia before 1998, had an average of at least 10t CO2 emissions per year during the period 1986 to 1998, and have asked for an emission permit from the Ministry of Environment before 2002. Special reduction rates were foreseen for the following categories of beneficiaries:
-
installations producing heat isolation materials,
-
power plants feeding electricity to a high voltage transmission network,
-
installations of transport of natural gas in gas networks,
-
district heating installations, for CO2 emissions due to the use of fossil fuels.
In its Opening Decision, the Commission found that the tax reduction for power plants feeding electricity to a high voltage transmission network (second indent above), did not constitute State aid in the meaning of article 87(1) of the EC Treaty.
It initiated a formal investigation procedure concerning all other tax reductions under this category, on the basis of articles 4.4 and 6 of Council Regulation (EC) No 659/1999 on the rules for the application of article 93 of the EC Treaty.
(iii)
The third category of tax reductions concerned large combustion plants of power stations delivering electricity to a high voltage transmission network, using domestic coal as fuel.
In its Opening Decision, the Commission came to the conclusion that this measure did not constitute State aid in the meaning of article 87(1) of the EC Treaty.
(14)
The investigation procedure of the Commission therefore concentrated on the State aid measures under point (ii) above.
2. DE MINIMIS AID
(15)
At the date of the Commission's Opening Decision (14 December 2004), the Regulation was still applicable. However, in their letter dated 17 May 2005, the Slovene authorities confirmed that no administrative decision on CO2 tax reduction had been taken on the basis of the Regulation as of the date of reception of the Commission's decision by the Slovene authorities (22 December 2004). On 1 May 2005, the new legislation entered into force and replaced the Regulation.
(16)
To the Commission's request (letter dated 4 April 2005), the Slovene authorities provided it with a list of all the beneficiaries that had received tax reduction under the Regulation after the date of accession of Slovenia to the EU, as well as the corresponding amounts of tax reduction, until the end of applicability of the Regulation (letter dated 17 May 2005).
(17)
According to this information, the overall amount of the tax reduction between 1 May 2004 and 1 May 2005 was 998 771 euros, granted to 153 companies in total. None of the companies have received more than EUR 100 000. In fact, only two companies received more than 27 000 euros, but none of them more than EUR 100 000.
(18)
The Slovene authorities therefore argue that, as a consequence of the very short period of application of the Regulation after the accession of Slovenia to the EU, the amount of aid granted under this scheme is lower than the threshold of EUR 100 000 fixed by article 2 of the Commission Regulation on de minimis aid (9).
(19)
In their letter dated 8 August 2005, the Slovene authorities describe in details the system put in place to monitor de minimis aid in Slovenia. According to this information, Slovenia has set up a system for monitoring and supervising the granting of aid under the de minimis rule by establishing a central register of de minimis aid, in the State Aid Monitoring Department of the Ministry of Finance. Before the granting of any de minimis aid by any authority, this department must check that the conditions of the Commission Regulation on de minimis aid are respected. The central register was established before the accession of Slovenia to the EU.
(20)
The Slovene authorities confirmed in their letter dated 8 August 2005 that, due to the use of this centralized system, the beneficiaries of the measure could not receive any aid that would exceed EUR 100 000 per beneficiary over a period of three years.
3. ASSESSMENT
(21)
On the date of reception of the Commission's Opening Decision (22 December 2004), the Slovene authorities immediately put an end to the application of the tax reduction scheme at stake. A significantly modified new scheme entered into force a few months later, on 1 May 2005. Thus, the Regulation assessed by the present decision was applicable in Slovenia for a period of one year after accession, but it was de facto applied for a period of less then 8 months (from 1 May 2004 to 22 December 2004).
(22)
As a result of this short application period, the aid granted under this scheme is lower than the threshold of EUR 100 000 per beneficiary fixed by article 2 of the Commission Regulation on de minimis aid.
(23)
By their letters of 17 May 2005 and 8 August 2005, the Slovene authorities also undertook to respect all other conditions of the Commission Regulation on de minimis aid, and described the monitoring system that ensures the correct application of those rules.
4. CONCLUSION
(24)
The Commission therefore concludes that the measure fulfils the criteria of the Commission Regulation on de minimis aid and, in line with its article 2.1, is deemed not to constitute State aid in the meaning of article 87(1) of the EC Treaty.
B) SCHEME C 44/2004 (EX N 402/2004): MODIFICATION OF THE SCHEME C47/2004
1. DESCRIPTION OF THE SCHEME
(25)
In their letter of information registered on 1 June 2004, the Slovene authorities informed the Commission about significant modifications in the Slovene legislation, leading to, inter alia, the amendment of the Regulation on CO2 taxation in force since 2002. The new set of national acts consists of the new Environmental protection act (10), the act amending the Law on Excise Duties (11) and a governmental decree on the taxation of CO2 emissions (the ‘Decree’), entered into force on 1 May 2005.
(26)
The Decree keeps the logic of the previous system of CO2 taxation unchanged: the tax is based on the quantity of CO2 emitted by the installations.
(27)
It contains three measures of tax reduction that were submitted to the Commission for approval under the Environmental guidelines. All the three measures have a duration of 5 years: from 1 January 2005 till 31 December 2009.
(i)
Companies that produce electricity in combined heat and power (CHP) installations can be granted a tax reduction if they achieve certain energy savings.
In its Opening Decision, the Commission found this measure compatible with article 87(3)(c) of the EC Treaty. Although the measure was only a draft Decree at the time of that decision, the Slovene authorities confirmed by their letter dated 17 May 2005 that this measure had not been modified.
(ii)
The second category of reductions concerns power plants feeding electricity to a high voltage transmission network, and certain large combustion installations listed under article 23 of the Decree.
As far as the power plants are concerned, the Commission concluded in its Opening Decision that this measure did not constitute State aid. Concerning the large combustion installations, the Commission found their tax reduction compatible with the EC Treaty.
(iii)
According to the draft Decree as submitted to the Commission before its Opening Decision, all operators that feed electricity to a high voltage transmission network but are neither energy intensive businesses nor covered by a voluntary environmental agreement or a tradable permit scheme, could benefit from 43 % tax reduction in 2005 decreasing by 8 percentage points each year. District heating installations in the same situation could benefit from a 26 % reduction in 2005 decreasing by 8 percentage points each year.
In its Opening Decision, the Commission raised doubts as to the compatibility of this measure with the common market and, based on articles 4.4 and 6 of Council Regulation (EC) No 659/1999 on the rules for the application of article 93 of the EC Treaty, it initiated a formal investigation procedure. This was the only category of tax reduction in the new draft Decree that was subject to the Commission's State aid investigation procedure.
(28)
Following the Commission's Opening Decision, the Slovene authorities modified the draft Decree. The final version of the Decree, as entered into force in May 2005, replaces this category of tax reduction by the following categories:
(29)
Under article 18, 3rd indent of the Decree, companies that participate in the EU emission trading scheme, in line with the Directive on emission trading, and are not energy intensive, can benefit from a tax reduction from the national CO2 tax.
(30)
Under article 18, 4th indent, companies that enter into voluntary environmental agreements, can also benefit from tax reduction.
(31)
The tax reduction rate is decreasing by 8 percentage points each year:
-
2005: 43 %,
-
2006: 35 %,
-
2007: 27 %,
-
2008: 19 %, and
-
2009: 11 % of tax reduction.
The last year of tax reduction is 2009: no reduction applies as of 2010.
(32)
District heating installations benefit from a 26 % reduction in 2005, decreasing by 8 percentage points each year.
2. ASSESSMENT
(33)
The Slovene authorities notified the aid measure to the Commission before implementing it.
(34)
The measure that is subject to the Commission's investigation procedure is mainly based on articles 18, 3rd and 4th indent; and articles 22 to 24 of the Decree. Although the Decree entered into force during the investigation procedure of the Commission, the Slovene authorities confirm in their letter dated 17 May 2005 that articles 18, 4th indent; 23 and 24 will become applicable only after the Commission's final approval. They therefore comply with their obligation on the basis of article 88(3) of the EC Treaty and article 3 of the Council Regulation (EC) no 659/1999 on the rules for the application of article 93 of the EC Treaty, as far as these articles are concerned.
(35)
However, the tax reimbursement measures under the Commission's investigation procedure can also be based on articles 18, 3rd indent and article 22 of the Decree. The Slovene authorities consider (12) that these articles were brought in line with the EC Treaty after the Commission's Opening Decision, and they therefore did not suspend their entering into force until the Commission's final approval. These articles are thus in force since 1 May 2005, in breach of article 3 of the Council Regulation (EC) no 659/1999 on the rules for the application of article 93 of the EC Treaty.
2.1 Existence of aid within the meaning of article 87(1) of the EC Treaty
(36)
The Commission is of the view that the amendments introduced by the Slovene authorities in the tax reduction measure since the Opening Decision, do not in any way change the assessment in the Opening Decision concerning the existence of aid within the meaning of article 87(1) of the EC Treaty. Consequently, the Commission considers that the measures under assessment constitute State aid within the meaning of article 87(1) of the EC Treaty.
2.2 Compatibility of the aid with the EC Treaty
(37)
The Commission notes that the Slovene authorities have structured the scheme on the basis of the Environmental guidelines and the Energy Taxation Directive.
(38)
The Commission assesses the compatibility of the measures in particular with articles 51.2 and 51.1 (b) 1st indent of the Environmental guidelines. The Slovene CO2 taxation system has been introduced in October 2002. Therefore, according to article 51.2, the provisions of article 51.1 can only apply if the following two conditions are satisfied at the same time:
(a)
the tax has an appreciable positive impact in terms of environmental protection. The logic of the Slovene tax system is to tax companies with a higher rate of CO2 emissions more than companies that emit less CO2. Such a taxation system leads inherently to an incentive for the companies to act in a more environmentally friendly manner, by emitting less CO2. Therefore, the Commission considers that this first criterion of article 51.2 is fulfilled.
(b)
the derogation for the beneficiaries must have been decided on when the tax was adopted. The categories of beneficiaries foreseen by the initial act of 2002 on CO2 taxation are much larger than the categories covered by the Decree under assessment. The modifications introduced are due to the accession of Slovenia to the EU and the subsequent changes in the applicable legislation. The Commission considers that these modifications left the nature and logic of the derogations unchanged. They only reduce the circle of the beneficiaries in line with the applicable EU legislation.
(39)
The Commission therefore concludes that this second condition of article 51.2 of the Environmental guidelines is also fulfilled.
(40)
As a consequence of the above, in accordance with article 51.2 of the Environmental guidelines, the provisions of point 51.1 may apply to the measures under assessment.
(41)
According to article 51.1(b)1st indent, where the tax reduction concerns a Community tax, a maximum 10 year exemption period can be authorised by the Commission if the amount effectively paid by the beneficiaries after the reduction remains higher than the Community minimum.
(42)
Since 1 January 2004, the Energy Taxation Directive foresees a harmonised energy taxation in the Member States. The Commission considers, in line with article 4 of that Directive, that the Slovene tax system based on the quantity of CO2 emitted by the companies, taxes energy products as defined under article 2 of the Energy Taxation Directive and therefore falls within the scope of that Directive. Hence, the Slovene tax system concerns a Community tax, in the meaning of article 51.1(b) 1st indent.
(43)
The reduction only applies for a period of less than 5 years which is less than the maximum foreseen by article 51.1.
(44)
With regard to the different levels of taxation applicable in Slovenia for different input fuels, the tax rate to be paid by an installation will depend on the nature of the input it will use for its operation. The Commission therefore cannot verify and make sure a priori that the minimum levels of taxation fixed by the Energy Taxation Directive will be respected for each installation. In their letter dated 17 May 2005, the Slovene authorities repeated their commitment to ensure for both categories of beneficiaries that the tax they pay after reduction will remain higher than the Community minimum, defined by the Energy Taxation Directive. The tax reductions are granted in the form of tax reimbursements, the competent national authority can therefore verify compliance with the minimum harmonised level for each installation, before executing the reimbursement.
(45)
The Commission also takes into consideration the decreasing nature of the tax reductions, leading to significantly lower reductions each year.
(46)
On the basis of the above undertaking by the Slovene authorities, the Commission considers that the condition of article 51.1(b)1st indent, whereby the amount effectively paid by the beneficiaries after the reduction has to remain higher than the Community minimum, is fulfilled.
(47)
The conditions of article 51.1(b)1st indent of the Guidelines on environmental protection are therefore satisfied for both categories of beneficiaries.
(48)
The Energy Taxation Directive requires in its article 17.1 that even if the minimum levels of taxation prescribed in that Directive are respected, Member States can only apply tax reductions if it is in favour of energy-intensive businesses or if the beneficiary has entered into special agreements with environmental protection objectives or is covered by a tradable permit scheme.
(49)
The beneficiaries covered by article 18, 3rd indent of the Decree, must participate in the EU emission trading scheme, in line with the Directive on emission trading (13), in order to benefit from the reduction.
(50)
The beneficiaries covered by article 18, 4th indent of the Decree, must enter into voluntary environmental agreements, in order to benefit from the tax reduction. The environmental target to be achieved by the beneficiaries under the environmental agreements is a reduction of CO2 emissions of 2,5 % by the end of 2008, compared to the emissions during the reference period (1999 to 2002).
(51)
In light of the above, the Commission finds that both categories of tax reductions are in line with the requirements of the Energy Taxation Directive,
HAS ADOPTED THIS DECISION:
Article 1
The tax reduction measures, as foreseen by the Slovene governmental Decree on the taxation of CO2 emissions, entered into force on 1 May 2005, are compatible with article 87(3)(c) of the EC Treaty.
Article 2
The present Decision covers the tax reductions granted on the basis of the Decree, until 31 December 2009.
Article 3
The present Decision is addressed to the Republic of Slovenia.
Done at Brussels, 23 November 2005.
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Commission Regulation (EC) No 1475/2001
of 18 July 2001
establishing unit values for the determination of the customs value of certain perishable goods
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code(1), as last amended by Regulation (EC) No 2700/2000 of the European Parliament and of the Council(2),
Having regard to 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(3), as last amended by Regulation (EC) No 993/2001(4), and in particular Article 173 (1) thereof,
Whereas:
(1) Articles 173 to 177 of Regulation (EEC) No 2454/93 provide that the Commission shall periodically establish unit values for the products referred to in the classification in Annex 26 to that Regulation.
(2) The result of applying the rules and criteria laid down in the abovementioned Articles to the elements communicated to the Commission in accordance with Article 173 (2) of Regulation (EEC) No 2454/93 is that unit values set out in the Annex to this Regulation should be established in regard to the products in question,
HAS ADOPTED THIS REGULATION:
Article 1
The unit values provided for in Article 173 (1) of Regulation (EEC) No 2454/93 are hereby established as set out in the table in the Annex hereto.
Article 2
This Regulation shall enter into force on 20 July 2001.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 18 July 2001.
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COMMISSION REGULATION (EC) No 103/2007
of 2 February 2007
on the extension of the transitional period referred to in Article 53(4) of Regulation (EC) No 1592/2002 of the European Parliament and of the Council
(Text with EEA relevance)
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Regulation (EC) No 1592/2002 of the European Parliament and of the Council of 15 July 2002 on common rules in the field of civil aviation and establishing a European Aviation Safety Agency (1), and in particular Article 53(4) thereof,
Whereas:
(1)
Article 53(3) of Regulation (EC) No 1592/2002 lays down that the European Aviation Safety Agency (EASA) shall levy, notably, fees for the issuing and renewal of certificates, as well as the related continuing oversight functions. According to Article 48(1)(b) of the same Regulation, these fees are paid by applicants for, and holders of, certificates issued, maintained or amended by the Agency.
(2)
Pursuant to Article 53(4), expenditure incurred by the Agency in carrying out certification tasks and overall income from the fees it levies shall be in balance. However, the provisions of the same paragraph permit also to use the annual financial contribution from the Community to the Agency to cover certification costs, during a transitional period ending on 31 December 2006. This period can be extended by the Commission for one more year, if necessary.
(3)
Commission Regulation (EC) No 488/2005 (2) which determines the amounts of the fees to be paid, and the way in which they are to be paid, entered into force on 1 June 2005. From that time, the Agency levies fees for certification tasks. However, fees revenue is not yet sufficient to fully cover certification costs borne by the Agency. Consequently, the latter has still to allocate part of the Community contribution to the cover of these costs, in accordance with the relevant provisions of Article 53(4).
(4)
Even if the cover of certification costs by fees revenue is improving, raising from circa 60 % in 2005 to an expected 70 % in 2006, experience shows that it takes time to set up an efficient fees mechanism. At this stage, it would not be wise to guarantee that these costs and revenue will be in balance in 2007.
(5)
To avoid possible deficit regarding certification activities, that would prevent the Agency performing its tasks, it is necessary to make use of the relevant provisions of Article 53(4) of Regulation (EC) No 1592/2002 to extend the transitional period during which, if need be, part of the Community contribution can be used by the Agency to cover certification costs.
(6)
The measures provided for in this Regulation are in accordance with the opinion of the Committee set up by Article 54 of Regulation (EC) No 1592/2002,
HAS ADOPTED THIS REGULATION:
Article 1
The transitional period referred to in Article 53(4) of Regulation (EC) No 1592/2002 is extended until 31 December 2007.
Article 2
This Regulation shall enter into force on the day following its publication in the Official Journal of the European Union.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 2 February 2007.
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COUNCIL DECISION
of 19 December 1995
supplementing Decision 95/517/CFSP concerning the joint action, adopted by the Council on the basis of Article J.3 of the Treaty on European Union, on continued support for European Union administration of the town of Mostar
(95/552/CFSP)
THE COUNCIL OF THE EUROPEAN UNION,
Having regard to the Treaty on European Union, and in particular Articles J.3 and J.11 thereof,
Having regard to Council Decision 95/517/CFSP of 4 December 1995 concerning the joint action on continued support for European Union administration of the town of Mostar (1),
HAS DECIDED AS FOLLOWS:
1. The total budget corresponding to the requirements for European Union administration of the town of Mostar up to 22 July 1996 shall be set at a maximum of ECU 32 million. The whole of this amount shall be borne by the general budget of the European Communities.
2. The financial resources available for this purpose, within the limit stipulated, shall meet the following requirements as evaluated by the Administrator of the town of Mostar:
(i) aid for the building sector, rehabilitation of badly damaged housing and demolition of irreparably damaged constructions;
(ii) utilities (energy, water and sewage system, postal and telecommunications services, rubbish collection);
(iii) support for the economic sector;
(iv) transport (infrastructure and equipment);
(v) health and social services;
(vi) education, culture and sport;
(vii) strengthening the municipal administration (including unified police);
(viii) reinsertion of displaced persons;
(ix) operating expenditure and ordinary expenses of the administration.
3. The funds shall be paid into an account opened in the name of the Administrator of the town of Mostar.
The implementation of this support action, in particular with regard to the financial resources available for that purpose within the limits laid down, shall be carried out as follows:
The Administrator shall assess the requirements, and the means necessary for their financing, and shall communicate those particulars to the Presidency of the Council.
On the basis of those particulars, the Presidency, assisted by an advisory Working Party composed of representatives of the Member States and acting in association with the Commission, shall issue guidelines, determine what measures are needed to meet those requirements and decide to release the amounts necessary to finance them one tranche at a time.
4. The Administrator shall carry out those guidelines and measures and shall regularly submit reports to the Presidency, which shall forward them to the advisory Working Party and the Commission.
5. The European Court of Auditors is invited to audit the Administrator's accounts.
6. At the end of the procedure referred to in point 3 of this Decision, the management of the expenditure financed by the amount set in paragraph 1 shall be carried out in compliance with Community procedures and rules applicable to budget matters.
7. This Decision shall enter into force on the date of its adoption. It shall apply until 22 July 1996.
8. This Decision shall be published in the Official Journal.
Done at Brussels, 19 December 1995.
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Commission Regulation (EC) No 1100/2001
of 5 June 2001
amending Regulation (EC) No 1555/96 on rules of application for additional import duties on fruit and vegetables
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Council Regulation (EC) No 2200/96 of 28 October 1996 on the common organisation of the market in fruit and vegetables(1), as last amended by Commission Regulation (EC) No 911/2001(2), and in particular Article 33(4) thereof,
Whereas:
(1) Commission Regulation (EC) No 1555/96(3), as last amended by Regulation (EC) No 745/2001(4), provides for surveillance of imports of the products listed in the Annex thereto. That surveillance is to be carried out in accordance with the rules on the surveillance of preferential imports laid down in Article 308d of Commission Regulation (EEC) No 2454/93(5), as last amended by Regulation (EC) No 993/2001(6).
(2) For the purposes of Article 5(4) of the Agreement on Agriculture(7) concluded during the Uruguay Round of multilateral trade negotiations and in the light of the latest data available for 1997, 1998, 1999 and 2000, the trigger levels for additional duties on lemons, apricots, peaches, including nectarines, and plums should be amended.
(3) The measures provided for in this Regulation are in accordance with the opinion of the Management Committee for Fresh Fruit and Vegetables,
HAS ADOPTED THIS REGULATION:
Article 1
The Annex to Regulation (EC) No 1555/96 is replaced by the Annex hereto.
Article 2
This Regulation shall enter into force on the day of its publication in the Official Journal of the European Communities.
It shall apply from 1 June 2001.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 5 June 2001.
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COUNCIL REGULATION (EC) No 453/2007
of 25 April 2007
laying down the weightings applicable from 1 July 2006 to the remuneration of officials, temporary staff and contract staff of the European Communities serving in third countries and of certain officials remaining in post in the two new Member States for a maximum period of 19 months after accession
THE COUNCIL OF THE EUROPEAN UNION,
Having regard to the Treaty establishing the European Community,
Having regard to the Staff Regulations of Officials of the European Communities and the Conditions of employment of other servants of the Communities laid down by Regulation of the Council (EEC, Euratom, ECSC) No 259/68 (1), and in particular the first paragraph of Article 13 of Annex X thereto,
Having regard to the 2005 Act of Accession, and in particular Article 27(4) thereof,
Having regard to the proposal from the Commission,
Whereas:
(1)
It is necessary to take account of changes in the cost of living in countries outside the Community and to determine accordingly the weightings applicable from 1 July 2006 to remuneration paid in the currency of the country of employment to officials serving in third countries.
(2)
The weightings in respect of which payment has been made on the basis of Regulation (EC, Euratom) No 351/2006 (2) may lead to retrospective upward or downward adjustments to remuneration.
(3)
Provision should be made for back-payments in the event of an increase in remuneration as a result of the new weightings.
(4)
Provision should be made for the recovery of sums overpaid in the event of a reduction in remuneration as a result of the new weightings for the period between 1 July 2006 and the date of entry into force of this Regulation.
(5)
Provision should be made for any such recovery to be restricted to a period of no more than six months preceding the date of entry into force of this Regulation and for its effects to be spread over a period of no more than 12 months following that date, as is the case with the weightings applicable within the European Community to remuneration and pensions of officials and other servants of the European Communities,
HAS ADOPTED THIS REGULATION:
Article 1
With effect from 1 July 2006, the weightings applicable to the remuneration of officials, temporary staff and contract staff of the European Communities serving in third countries payable in the currency of the country of employment shall be as shown in the Annex hereto.
The exchange rates used for the calculation of this remuneration shall be established in accordance with the detailed rules for the implementation of the Financial Regulation and correspond to the date of application of the weightings.
Article 2
1. The institutions shall make back-payments in the event of an increase in remuneration as a result of the weightings shown in the Annex.
2. The institutions shall make retrospective downward adjustments to remuneration in the event of a reduction of remuneration as a result of the weightings shown in the Annex for the period between 1 July 2006 and the date of entry into force of this Regulation.
Retrospective adjustments involving the recovery of sums overpaid shall be restricted to a period of no more than six months preceding the date of entry into force of this Regulation. Recovery shall be spread over no more than 12 months from that date.
Article 3
This Regulation shall enter into force on the day of its publication in the Official Journal of the European Union.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Luxembourg, 25 April 2007.
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COMMISSION REGULATION (EC) No 1283/2005
of 3 August 2005
amending Annex I to Council Regulation (EC) No 866/2004 on a regime under Article 2 of Protocol No 10 to the Act of Accession
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Protocol No 10 on Cyprus to the Act concerning the conditions of accession of the Czech Republic, the Republic of Estonia, the Republic of Cyprus, the Republic of Latvia, the Republic of Lithuania, the Republic of Hungary, the Republic of Malta, the Republic of Poland, the Republic of Slovenia and the Slovak Republic and the adjustments to the Treaties on which the European Union is founded (1),
Having regard to Council Regulation (EC) No 866/2004 of 29 April 2004 on a regime under Article 2 of Protocol No 10 to the Act of Accession (2), and in particular Article 9 thereof,
Whereas:
(1)
Annex I to Council Regulation (EC) No 866/2004 lays down a list of crossing points at which persons and goods may cross the line between the areas under the effective control of the Government of the Republic of Cyprus and those areas in which the Government of the Republic of Cyprus does not exercise effective control.
(2)
Following agreement on the opening of new crossing points in Kato Pyrgos and Kokkina, it is necessary to adapt Annex I.
(3)
The Government of the Republic of Cyprus gave its agreement to this adaptation.
(4)
The Turkish Cypriot Chamber of Commerce was consulted on this matter,
HAS ADOPTED THIS REGULATION:
Article 1
Annex I to Regulation (EC) No 866/2004 is replaced by the following:
‘ANNEX I
List of crossing points referred to in Article 2(4)
-
Agios Dhometios
-
Astromeritis - Zodhia
-
Kato Pyrgos - Karavostasi
-
Kato Pyrgos - Kokkina
-
Kokkina - Pachyammos
-
Ledra Palace
-
Ledra Street’.
Article 2
This Regulation shall enter into force on the third day following that of its publication in the Official Journal of the European Union.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 3 August 2005.
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COMMISSION REGULATION (EC) No 810/2005
of 26 May 2005
fixing the maximum reduction in the duty on maize imported in connection with the invitation to tender issued in Regulation (EC) No 641/2005
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Council Regulation (EC) No 1784/2003 of 29 September 2003 on the common organisation of the market in cereals (1), and in particular Article 12(1) thereof,
Whereas:
(1)
An invitation to tender for the maximum reduction in the duty on maize imported into Spain from third countries was opened pursuant to Commission Regulation (EC) No 641/2005 (2).
(2)
Pursuant to Article 7 of Commission Regulation (EC) No 1839/95 (3) the Commission, acting under the procedure laid down in Article 25 of Regulation (EC) No 1784/2003, may decide to fix maximum reduction in the import duty. In fixing this maximum the criteria provided for in Articles 6 and 7 of Regulation (EC) No 1839/95 must be taken into account. A contract is awarded to any tenderer whose tender is equal to or less than the maximum reduction in the duty.
(3)
The application of the abovementioned criteria to the current market situation for the cereal in question results in the maximum reduction in the import duty being fixed at the amount specified in Article 1.
(4)
The measures provided for in this Regulation are in accordance with the opinion of the Management Committee for Cereals,
HAS ADOPTED THIS REGULATION:
Article 1
For tenders notified from 20 to 26 May 2005, pursuant to the invitation to tender issued in Regulation (EC) No 641/2005, the maximum reduction in the duty on maize imported shall be 29,99 EUR/t and be valid for a total maximum quantity of 50 900 t.
Article 2
This Regulation shall enter into force on 27 May 2005.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 26 May 2005.
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Commission Regulation (EC) No 2128/2001
of 29 October 2001
fixing Community producer and import prices for carnations and roses with a view to the application of the arrangements governing imports of certain floricultural products originating in Cyprus, Israel, Jordan, Morocco and the West Bank and the Gaza Strip
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Council Regulation (EEC) No 4088/87 of 21 December 1987 fixing conditions for the application of preferential customs duties on imports of certain flowers originating in Cyprus, Israel, Jordan, Morocco and the West Bank and the Gaza Strip(1), as last amended by Regulation (EC) No 1300/97(2), and in particular Article 5(2)(a) thereof,
Whereas:
Pursuant to Article 2(2) and Article 3 of abovementioned Regulation (EEC) No 4088/87, Community import and producer prices are fixed each fortnight for uniflorous (bloom) carnations, multiflorous (spray) carnations, large-flowered roses and small-flowered roses and apply for two-weekly periods. Pursuant to Article 1b of Commission Regulation (EEC) No 700/88 of 17 March 1988 laying down detailed rules for the application of the arrangements for the import into the Community of certain floricultural products originating in Cyprus, Israel, Jordan, Morocco and the West Bank and the Gaza Strip(3), as last amended by Regulation (EC) No 2062/97(4), those prices are determined for fortnightly periods on the basis of weighted prices provided by the Member States. Those prices should be fixed immediately so the customs duties applicable can be determined. To that end, provision should be made for this Regulation to enter into force immediately,
HAS ADOPTED THIS REGULATION:
Article 1
The Community producer and import prices for uniflorous (bloom) carnations, multiflorous (spray) carnations, large-flowered roses and small-flowered roses as referred to in Article 1b of Regulation (EEC) No 700/88 for a fortnightly period shall be as set out in the Annex.
Article 2
This Regulation shall enter into force on 30 October 2001.
It shall apply from 31 October to 13 November 2001.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 29 October 2001.
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Commission Decision
of 26 March 2002
amending Decision C(2001)649 approving the single programming document for Community structural assistance under Objective 2 in the region of Picardy in France
(notfied under document number C(2002) 272)
(Only the French text is authentic)
(2002/728/EC)
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Council Regulation (EC) No 1260/1999 of 21 June 1999 laying down general provisions on the Structural Funds(1), and in particular Article 34(3) thereof,
Whereas:
(1) By Decision C(2001)649 the Commission approved the single programming document for Community structural assistance under Objective 2 in the region of Picardy in France.
(2) On 17 September 2001 the French authorities sent the Commission a request arising from the storms which had affected Picardy to allocate to that region part of the appropriations remaining available under Objective 2-France by increasing the assistance from the Structural Funds under the single programming document for Picardy.
(3) The Monitoring Committee for the single programming document examined and approved the amendments to that Document and its financing plan by written procedure. The Commission was informed of the approval of those amendments by letter dated 9 November 2001.
(4) Decision C(2001)649 should therefore be amended,
HAS ADOPTED THIS DECISION:
Article 1
Decision C(2001)649 is amended as follows:
The annexed addendum shall form part of the SPD.
Article 2(2) and Article 3(1) and (2) are replaced by:
Article 2
The indicative financing plan puts the total cost of the priorities selected for the joint action by the Community and the Member State at EUR 967835605 for the whole period, the financial contribution from the Structural Funds at EUR 259622281 and that from the EAGGF Guarantee Section at EUR 4573000.
The resulting requirement for national resources of EUR 322237433 from the public sector and EUR 381402891 from the private sector can be partly met by Community loans from the EIB and other lending instruments.
Article 3
The total assistance from the Structural Funds granted under the single programming document amounts to EUR 259622281, to which the EAGGF Guarantee Section will contribute a further EUR 4573000.
The procedure for granting the financial assistance, including the financial contribution from the Funds for the various priorities included in the single programming document, is set out in the financing plan annexed to this Decision.
TABLE
The financial tables annexed to Decision C(2001)649 shall be replaced by those annexed to this Decision.
Article 4
This Decision is addressed to the French Republic.
Done at Brussels, 26 March 2002.
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