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COMMISSION DECISION of 20 May 1996 recognizing in principle the completeness of the dossier submitted for detailed examination in view of the possible inclusion of flurtamone in Annex I of Council Directive 91/414/EEC concerning the placing of plant protection products on the market (Text with EEA relevance) (96/341/EC)
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), as last amended by Commission Directive 96/12/EC (2), and in particular Article 6 (3) thereof,
Whereas Directive 91/414/EEC has provided for the development of a Community list of authorized pesticide active substances;
Whereas Rhône-Poulenc Agro France introduced on 15 February 1994 a dossier to the French authorities in view of obtaining the inclusion of the active substance flurtamone in Annex I of the Directive; whereas the French authorities indicated to the Commission the results of a first examination of the completeness of the dossier with regard to the data and information requirements provided for in Annex II and, for at least one plant protection product containing the active substance concerned, in Annex III of the Directive; whereas subsequently, in accordance with the provisions of Article 6 (2), the dossier was submitted by the applicant to the Commission and the other Member States;
Whereas the Commission referred the dossier to the Standing Committee on Plant Health in the meeting of the working group 'legislation` thereof on 23 to 24 November 1995, during which the Member States confirmed the receipt of the dossier;
Whereas Article 6 (3) of the Directive requires it being confirmed at the level of the Community that the dossier is to be considered as satisfying in principle the data and information requirements provided for in Annex II and, for at least one plant protection product containing the active substance concerned, in Annex III of the Directive;
Whereas such confirmation is necessary in order to pursue the detailed examination of the dossier as well as in order to open to the Member States the possibility of granting provisional authorization for plant protection products containing this active substance in due respect of the conditions laid down in Article 8 (1) of the Directive, and in particular the condition to make a detailed assessment of the active substance and the plant protection product with regard to the requirements of the Directive;
Whereas such decision does not prejudice that further data or information may be requested from the Company where it would appear during the detailed examination that such information or data are required for a decision to be taken;
Whereas it is understood between the Member States and the Commission that France will pursue the detailed examination of the dossier and report the conclusions of its examination accompanied by any recommendations on the inclusion or non-inclusion and any conditions related thereto to the Commission as soon as possible and at the latest within a period of one year; whereas on receipt of this report the detailed examination will be continued with the expertise from all Member States within the framework of the Standing Committee on Plant Health;
Whereas the measures provided for in this Decision are in accordance with the opinion of the Standing Committee on Plant Health,
HAS ADOPTED THIS DECISION:
Article 1
The dossier submitted by Rhône-Poulenc Agro France to the Commission and the Member States with a view to the inclusion of flurtamone as active substance in Annex I of Directive 91/414/EEC is considered as satisfying in principle the data and information requirements provided for in Annex II and, for a plant protection product containing the active substance concerned, in Annex III of the Directive.
Article 2
This Decision is addressed to the Member States.
Done at Brussels, 20 May 1996.
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COMMISSION REGULATION (EC) No 1527/2006
of 12 October 2006
concerning tenders notified in response to the invitation to tender for the export of common wheat issued in Regulation (EC) No 936/2006
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 13(3) thereof,
Whereas:
(1)
An invitation to tender for the refund for the export of common wheat to certain third countries was opened pursuant to Commission Regulation (EC) No 936/2006 (2).
(2)
Article 7 of 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), and in particular Article 13(3) thereof,
(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 6 to 12 October 2006 in response to the invitation to tender for the refund for the export of common wheat issued in Regulation (EC) No 936/2006.
Article 2
This Regulation shall enter into force on 13 October 2006.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 12 October 2006.
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COMMISSION DIRECTIVE of 22 November 1979 adapting to technical progress Council Directive 74/347/EEC on the approximation of the laws of the Member States relating to the field of vision and windscreen wipers of wheeled agricultural or forestry tractors (79/1073/EEC)
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Economic Community,
Having regard to Council Directive 74/150/EEC of 4 March 1974 on the approximation of the laws of the Member States relating to the type-approval of wheeled agricultural or forestry tractors (1), as last amended by Directive 79/694/EEC (2), and in particular Articles 11, 12 and 13 thereof,
Having regard to Council Directive 74/347/EEC of 25 June 1974 on the approximation of the laws of the Member States relating to the field of vision and windscreen wipers of wheeled agricultural or forestry tractors (3),
Having regard to Council Directive 77/536/EEC of 28 June 1977 on the approximation of the laws of the Member States relating to the roll-over protection structures of wheeled agricultural or forestry tractors (4),
Whereas, in view of experience gained and the provisions adopted concerning roll-over protection structures which affect the configuration of those parts of the tractor superstructure which are of great importance for the field of vision, it is now possible to adapt to technical progress the provisions relating to the field of vision;
Whereas traffic safety requirements in respect of wheeled agricultural or forestry tractors have become more stringent;
Whereas the measures provided for in this Directive are in accordance with the opinion of the Committee for the Adaptation to Technical Progress of Directives for the Removal of Technical Barrieres to Trade in Agricultural and Forestry Tractors,
HAS ADOPTED THIS DIRECTIVE:
Article 1
Directive 74/347/EEC is hereby amended as follows: 1. The words "the field of vision or" are deleted from Articles 2 and 3.
2. After Article 3, the following new Article 3a is inserted:
"Article 3a
1. With effect from 1 May 1980 no Member State may, on grounds relating to the field of vision of tractors: - refuse, in respect of a type of tractor, to grant EEC type-approval, to issue the document referred to in the last indent of Article 10 (1) of Directive 74/150/EEC, or to grant national type-approval,
- or prohibit the entry into service of tractors,
if the field of vision of this type of tractor or of these tractors complies with the provisions of this Directive.
2. With effect from 1 October 1980 Member States: - may no longer issue the document referred to in the last indent of Article 10 (1) of Directive 74/150/EEC in respect of a type of tractor in which the field of vision does not comply with the provisions of this Directive, (1)OJ No L 84, 28.3.1974, p. 10. (2)OJ No L 205, 13.8.1979, p. 17. (3)OJ No L 191, 15.7.1974, p. 5. (4)OJ No L 220, 29.8.1977, p. 1.
- may refuse to grant national type-approval in respect of a type of tractor whose field of vision does not comply with the provisions of this Directive.
3. With effect from 1 January 1983, Member States may prohibit the entry into service of any tractor whose field of vision does not comply with the provisions of this Directive."
3. The Annex is amended in accordance with the Annex to this Directive.
Article 2
Member States shall bring into force the provisions required in order to comply with the Directive not later than 30 April 1980 and shall forthwith inform the Commission thereof.
Article 3
This Directive is addressed to the Member States.
Done at Brussels, 22 November 1979.
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COMMISSION REGULATION (EC) No 1097/2008
of 6 November 2008
providing for exceptional measures regarding import licences in the rice sector due to problems in the international market in 2008
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
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), and in particular Articles 134 and 148 in conjunction with Article 4 thereof,
Whereas:
(1)
Since the beginning of 2008, the pattern of imports of rice into the Community has been disturbed by various export restricting measures in third countries. In some cases those measures were official export prohibitions, or they had the effect of official export prohibitions. Consequently importers in the Community could not comply with their obligations related to import licences, in particular as concerns the obligation to import as laid down in Article 7 of Commission Regulation (EC) No 376/2008 of 23 April 2008 laying down common detailed rules for the application of the system of import and export licences and advance fixing certificates for agricultural products (2).
(2)
Therefore, in order to limit the adverse impact on importers, exceptional measures should be provided for as regards import licences issued under 2007/08 and 2008 tariff quota period.
(3)
The obligation to import is a primary requirement within the meaning of Article 20 of Commission Regulation (EEC) No 2220/85 of 22 July 1985 laying down common detailed rules for the application of the system of securities for agricultural products (3), which, if the obligation has not been met, should lead to forfeiture of the security according to Article 22 of that regulation. At the request of interested parties and pursuant to Articles 40 of Regulation (EC) No 376/2008 the obligation to import should be cancelled and the security should be released on a case by case basis. It is appropriate to lay down conditions to be fulfilled by the titular holder in demonstrating that the export restricting measures can be considered as force majeure.
(4)
The measures provided for in this Regulation are in accordance with the opinion of the Management Committee for the Common Organisation of Agricultural Market,
HAS ADOPTED THIS REGULATION:
Article 1
1. Pursuant to Article 40 of Regulation (EC) No 376/2008, at the request of the titular holder, within one month after entry into force of this regulation, for the import licences issued in the tariff rate quota period 2007/08 under the Regulations (EC) No 964/2007 (4) and (EC) No 1002/2007 (5), or the tariff rate quota period 2008 under the Regulations (EC) No 2058/96 (6), (EC) No 327/98 (7), (EC) No 955/2005 (8), (EC) No 1964/2006 (9) and (EC) No 1529/2007 (10), the obligation to import shall be cancelled and the securities shall be released for the quantities not used, by the competent authorities of the Member States.
2. The measure provided for in paragraph 1 shall only apply in cases where the titular holder invokes rules imposed by a third country which are considered by the competent authorities of the Member State to constitute force majeure in accordance with Articles 39 and 40 of Regulation (EC) No 376/2008. The titular holder shall demonstrate, to the satisfaction of the competent authorities that he was unable to import owing to the introduction by third countries of formal export bans or measures with equivalent effect, on which a reasonably prudent trader in the rice sector could not have anticipated the introduction of these measures at the time of applying for the import licence, and that the titular holder made all reasonable efforts to use the import licence during the period of validity.
Article 2
Before 31 January 2009 the Member States shall report to the Commission the measures taken in application of Article 1(2) of this regulation.
The notifications shall be made by electronic means. The form and content of the notifications shall be defined on the basis of models made available by the Commission to the Member States.
Article 3
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, 6 November 2008.
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COMMISSION REGULATION (EC) No 2579/94 of 24 October 1994 laying down the amount of the aid for silkworms fixed in ecus by the Council and reduced following the monetary realignments
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Council Regulation (EEC) No 3813/92 of 28 December 1992 on the unit of account and the conversion rates to be applied for the purposes of the common agricultural policy (1), as amended by Regulation (EC) No 3528/93 (2), and in particular Article 9 (1) thereof,
Having regard to Commission Regulation (EEC) No 3824/92 of 28 December 1992 laying down the prices and amounts fixed in ecus to be amended as a result of the monetary realignments (3), as last amended by Regulation (EEC) No 1663/93 (4), and in particular Article 2 thereof,
Whereas Regulation (EEC) No 3824/92 lists the prices and amounts to which the coefficient of 1,000426 fixed by Commission Regulation (EEC) No 537/93 (5), as amended by Regulation (EEC) No 1331/93 (6), is to be applied from the beginning of the 1994/95 marketing year within the framework of the arrangements for the automatic dismantlement of negative monetary gaps; whereas Article 2 of Regulation (EEC) No 3824/92 provides that the prices and amounts resulting from the reduction must be specified for each sector concerned and that the value of the reduced prices should be fixed;
Whereas, for the 1994/95 marketing year, Council Regulation (EC) No 1879/94 (7), fixes the aid for silkworms;
Whereas the measures provided for in this Regulation are in accordance with the opinion of the Management Committee for Flax and Hemp,
HAS ADOPTED THIS REGULATION:
Article 1
The amount of the aid for silkworms fixed in ecus by the Council for the 1994/95 marketing year and reduced in accordance with Article 2 of Regulation (EEC) No 3824/92 shall be ECU 110,36 per box.
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 from the 1994/95 marketing year.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 24 October 1994.
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COMMISSION REGULATION (EC) No 3206/93 of 23 November 1993 amending Regulation (EEC) No 2228/91 laying down provisions for the implementation of Council Regulation (EEC) No 1999/85 on inward processing relief arrangements
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Council Regulation (EEC) No 1999/85 of 16 July 1985 on inward processing relief arrangements (1), and in particular Article 31 thereof,
Whereas Commission Regulation (EEC) No 2228/91 (2), as last amended by Regulation (EEC) No 3709/92 (3), laid down provisions for the implementation of Regulation (EEC) No 1999/85;
Whereas examining the economic conditions, in order to take account of commercial considerations in certain sectors, it is appropriate that the rules whereby those conditions are deemed to be met where the applicant for inward processing relief can prove that he has obtained 80 % of his total requirements from within the Community should be made more flexible by including in that percentage any own production of comparable goods;
Whereas the administrative costs to the space industry of using the arrangements should be reduced for economic reasons; whereas certain inward processing operations carried out in the space industry should be considered to fulfil the economic conditions, notably where they involve component parts intended for the construction of satellites or parts of satellites for which imported goods are covered by no other relief arrangements; whereas such parts should be treated as exports and it would also be advisable not to require the communication of inward processing authorizations issued to operators in this sector;
Whereas it is necessary to ensure that use of the prior exportation system benefits only the holder of the authorization;
Whereas in accordance with Article 2 (4) of Regulation (EEC) No 1999/85, measures designed to prohibit or limit recourse to the system may be adopted; whereas it is necessary, in order to ensure that the legislation does not produce unintended consequences, to define the conditions subject to which prior export operations may take place;
Whereas in order to reduce the administrative cost of the triangular traffic system, simplified formalities should be allowed at the request of firms whose frequency of export trade is sufficiently substantial to warrant a derogation from the rule requiring endorsement of the INF 5 information sheet: whereas a procedure for handling such requests should be laid down;
Whereas compensatory interest should be collected only where an unjustified financial advantage has arisen due to postponement of the date on which the customs debt is incurred; whereas to this end provision should be made not to apply compensatory interest where a customs debt is incurred following an application for release for free circulation pursuant to Article 27 (3) of Regulation (EEC) No 1999/85, and provided that the import duties paid on entry for the arrangements have not actually been repaid or remitted;
Whereas the uniform application of the provisions concerning exchanges of information between the Member States and the Commission on the authorizations issued should be ensured; whereas it should therefore be stipulated that information must additionally be transmitted, on the one hand, when the economic conditions are re-examined for authorizations of indefinite duration and, on the other hand, when changes are made to information previously reported concerning authorizations already issued;
Whereas it is advisible to modify and complete the list of cases in which standard rates of yield apply;
Whereas the list of compensating products on which duty may be levied in accordance with their specific characteristics should be extended;
Whereas the measures provided for in this Regulation are in accordance with the opinion of the Committee for Customs Procedures with Economic Impact,
HAS ADOPTED THIS REGULATION:
Article 1
Regulation (EEC) No 2228/91 is hereby amended as follows:
1. the second subparagraph of Article 7 (1) (a) is hereby replaced by the following:
'To make use of this provision, the applicant must supply the customs authority with supporting documents that enable the authority to satisfy itself that the intended procurement of Community goods may be reasonably carried out. Such supporting documents, to be annexed to the application, may take the form, for example, of copies of commercial or administrative documents which refer to procurement in an earlier reference period, or orders or intended procurement for the period in question.';
2. in Article 7 (1) the following is added:
'(f) is building satellites or parts of satellites.';
3. the following point (e) is inserted in Article 8 (2):
'(e) the delivery, in the form of compensating products, of goods used for the construction of satellites and ground station equipment belonging to those satellites, destined for launching sites established in the customs territory of the Community. As to the said ground station equipment, the assimilation of delivery to export is only definitive at the moment this equipment receives one of the authorized customs destinations provided for in Article 18 (1) and (2) (a), (b), (d), (e) and (f) of the basic Regulation.';
4. Article 9 is replaced by the following:
'Article 9
1. Without prejudice to Articles 10 and 11, where use is to be made of equivalent compensation, the equivalent goods must fall within the same CN code, be of the same commercial quality and have the same technical characteristics as the import goods.
2. The use of the prior exportation system is not possible for authorizations to be issued on the basis of one or more of the economic conditions referred to by codes 6201, 6202, 6301, 6302 and 6303 and 7004, 7005 and 7006, and unless the applicant is able to prove that use of this system benefits only the holder of the authorization.';
5. Article 18 (1) is replaced by the following:
'1. The entry of goods for the arrangements using the suspension system shall be subject to the lodging of a declaration of entry for the arrangements.
The said goods may also be entered for the arrangements by another person established in the Community on behalf of the holder of the authorization, provided that he has the consent of the holder of the authorization and that the conditions of the authorization are fulfilled.
The person making the declaration is hereinafter referred to as the "declarant".';
6. the following is added to Article 32:
'3. Simplified procedures may be established for specific triangular trade flows at the request of firms with a sufficiently large number of anticipated export operations.
The simplified procedure shall be requested by the holder of the authorization from the customs authority of the Member State which issued the authorization.
This procedure shall provide for the aggregation of anticipated exports of compensating products over a given period for the purpose of issuing an INF 5 form covering the total quantity of the exports over the said period.
4. The request shall be accompanied by any supporting documents necessary for its appraisal. Such documents shall show inter alia the frequency of the exports, shall give an outline of the procedures envisaged and shall include particulars showing that it is possible to verify whether the conditions for equivalent goods are fulfilled.
5. When the customs authority is in possession of all the necessary particulars it shall transmit the request to the Commission, with its opinion.
As soon as the Commission receives the request it shall communicate the particulars to the Member States.
The Commission shall decide in accordance with the procedure laid down in Article 31 (2) and (3) of the basic Regulation whether and on what conditions an authorization may be issued, specifying inter alia the checks to be used to ensure the proper conduct of operations under the equivalent compensation system.';
7. the following indent is added to Article 62 (2):
'- where a customs debt is incurred as a result of an application for release for free circulation pursuant to Article 27 (3) of the basic Regulation, as long as the import duties payable on the products in question have not yet actually been repaid or remitted.';
8. Article 72 (3) (a) is replaced by the following:
'(a) in respect of each authorization where the value of the import goods per operator and per calendar year exceeds the limits set in Article 6, the particulars indicated in Annex VIII; such particulars need not be transmitted where the inward processing application has been issued on the basis of one or more of the economic conditions referred to by the following codes: 6106, 6107, 6201, 6202, 6301, 6302, 6303, 7004, 7005 and 7006.
Such particulars must also be transmitted when the economic conditions are re-examined for authorizations of indefinite duration, or when changes are made to a previously reported information concerning authorizations already issued.
However, in respect of the products referred to in the second subparagraph of Article 28 (1), particulars must be supplied for every authorization granted, irrespective of the value of the products and irrespective of the code used to identify the economic conditions.';
9. in Annex II, the text of note 7 concerning the application for an authorization is replaced by the text in Annex I to this Regulation;
10. in Annex V, the text of order number 129 is replaced by the text in Annex II to this Regulation;
11. in Annex VII the following order number is inserted:
45 a ex 1522 00 39 Stearin Refining fats and oils of Chapter 15'
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, 23 November 1993.
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COMMISSION REGULATION (EC) No 3438/93 of 15 December 1993 establishing, for 1994, the list of vessels exceeding eight metres length overall and permitted to fish for sole within certain areas of the Community using beam trawls whose aggregate length exceeds nine metres
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Council Regulation (EEC) No 3094/86 of 7 October 1986 laying down certain technical measures for the conservation of fishery resources (1), as last amended by Council Regulation (EEC) No 3919/92 (2),
Having regard to Commission Regulation (EEC) No 3554/90 of 10 December 1990 adopting provisions for the establishment of the list of vessels exceeding eight metres length overall which are permitted to fish for sole within certain areas of the Community using beam trawls whose aggregate length exceeds nine metres (3), and in particular Article 1 (1) thereof,
Whereas Article 9 (3) (c) of Regulation (EEC) No 3094/86 provides for the establishment of an annual list of vessels exceeding eight metres length overall authorized to fish for sole inside the zones mentioned in part (a) of this paragraph using beam trawls of which the aggregate beam length exceeds nine metres;
Whereas inclusion in the list is without prejudice to the application of other measures for the conservation of fishery resources provided for or adopted in conformity with Regulation (EEC) No 3094/86 or Council Regulation (EEC) No 3760/92 (4);
Whereas it is necessary to establish this list according to the detailed rules set out in Regulation (EEC) No 3554/90,
HAS ADOPTED THIS REGULATION:
Article 1
The list of vessels for 1994 authorized by virtue of Article 9 (3) (c) of Regulation (EEC) No 3094/86 to use beam trawls whose aggregate length exceeds nine metres inside the zones mentioned in part (a) of this paragraph, is given in the Annex.
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 1994.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 15 December 1993.
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*****
COMMISSION REGULATION (EEC) No 904/90
of 9 April 1990
laying down detailed rules for the application of the arrangements applicable to imports of certain pigmeat products originating in the ACP States or in the overseas countries and territories (OCT)
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Economic Community,
Having regard to Council Regulation (EEC) No 715/90 of 5 March 1990 concerning the arrangements applied to agricultural products and certain goods resulting from the processing of agricultural goods originating in the ACP States or in the overseas countries and territories (OCT) (1), and in particular Article 27 thereof,
Having regard to Council Regulation (EEC) No 2759/75 of 29 October 1975 on the common organization of the market in pigmeat (2), as last amended by Regulation (EEC) No 1249/89 (3), and in particular Article 22 thereof,
Whereas Regulation (EEC) No 715/90 in particular introduces arrangements for reducing import levies on certain products in the pigmeat sectors within the limit of a quota; whereas detailed rules for the application of that Regulation should be adopted as regards the pigmeat products concerned with a view to administering the quota concerned; whereas those detailed rules are either supplementary to or derogate from Commission Regulation (EEC) No 3719/88 of 16 November 1988 laying down common detailed rules for the application of the system of import and export licences and advance fixing certificates for agricultural products (4), as last amended by Regulation (EEC) No 1903/89 (5);
Whereas, in order to ensure proper administration of the quota, a security should be required for applications for import licences and certain conditions be laid down as regards applicants themselves; whereas the quota should be staggered over the year and the term of validity of licences should be specified;
Whereas the measures provided for in this Regulation are in accordance with the opinion of the Management Committee for Pigmeat,
HAS ADOPTED THIS REGULATION:
Article 1
All imports into the Community under Regulation (EEC) No 715/90 of products covered by CN code 1601 00 shall be subject to the presentation of an import licence.
Licences shall be issued under the conditions laid down in this Regulation and within the limit of the quota fixed by Regulation (EEC) No 715/90.
Article 2
1. The quota shall be staggered over the year as follows:
- 25 % in the period 1 January to 31 March,
- 25 % in the period 1 April to 30 June,
- 25 % in the period 1 July to 30 September,
- 25 % in the period 1 October to 31 December.
2. However, the following shall apply for 1990:
- 50 % in the period 1 April to 30 June 1990,
- 25 % in the period 1 July to 30 September 1990,
- 25 % in the period 1 October to 31 December 1990.
Article 3
1. In order to qualify under the import arrangements provided for in Regulation (EEC) No 715/90:
(a) applicants for import licences must be natural or legal persons who, at the time applications are submitted must prove to the satisfaction of the competent authorities in the Member States that they have been engaged in the commercial activity in the pigmeat sector for at least the preceding 12 months;
(b) licence applications may only relate to the quota provided for in Article 8 of Regulation (EEC) No 715/90. The application may comprise several products covered by CN codes 1601 00 exported from one of the African, Caribbean and Pacific States (ACP) or in the overseas countries and territories (OCT). In
such cases, all the CN codes shall be indicated in section 16 and their description in section 15;
(c) licence applications must relate to at least to one tonne and not more than 25 % of the quantity available under the quota and the quarter in respect of which licence applications are lodged;
(d) section 7 of licence applications and licences shall show the exporting country; licences shall carry with them an obligation to import from the country indicated;
(e) the heading 'notes' and section 24 of licence applications and licences shall show respectively one of the following:
- Exacción reguladora reducida en un 50 %, Producto ACP/PTUM - Reglamento (CEE) no 904/90;
- Nedsaettelse af importafgiften med 50 %, AVS/OLT-Varer - forordning (EOEF) nr. 904/90;
- Verminderung der Abschoepfung um 50 %, AKP/UELG-Erzeugnis - Verordnung (EWG) Nr. 904/90;
- Meioméni eisforá katá 50 %, proïón AKE/YCHE - kanonismós (EOK) arith. 904/90;
- Levy reduced by 50 %, ACP/OCT-Product - Regulation (EEC) No 904/90;
- Prélèvement réduit de 50 %, Produit ACP/PTOM - règlement (CEE) no 904/90;
- Prelievo ridotto del 50 %, Prodotto ACP/PTOM - regolamento (CEE) n. 904/90;
- Heffing verminderd met 50 %, ACS/LGO-Produkt - Verordening (EEG) nr. 904/90;
- Direito nivelador reduzido de 50 %, Produto ACP/PTU - Regulamento (CEE) nº 904/90.
Article 4
1. Licence applications may only be lodged during the first 10 days of each quarter.
2. Licence applications shall only be admissible where the applicant declares in writing that he has not submitted and undertakes not to submit any other applications, in respect of the current quarter, concerning products in to the same quota in the Member State in which his application is lodged nor in other Member States; where the same party submits applications relating to products covered by the same quota, all applications from that person shall be inadmissible.
3. The Member States shall notify the Commission on the third working day following the end of the application submission period, of applications lodged for each of the products covered by the quota in question. Such notification shall comprise a list of applicants, the product code and quantities applied for by quota and the exporting countries. All notifications, including notifications of nil applications, shall be made by telex or telecopy on the working day stipulated.
4. Subject to a decision on acceptance of applications by the Commission, licences shall be issued on the 21st day of each quarter.
5. The Commission shall decide to what extent quantities may be awarded in respect of applications as referred to in Article 3.
If quantities in respect of which licences have been applied for exceed the quantities available, the Commission shall fix a single percentage reducing the quantities applied for.
If the overall quantity covered by applications is less than the quantity available, the Commission shall calculate the quantity remaining, which shall be added to the quantity available in respect of the following quarter.
Article 5
Pursuant to Article 21 (2) of Regulation (EEC) No 3719/88, import licences shall be valid for 90 days from the date of actual issue.
However, licences may not be valid after 31 December of the year of issue.
Import licences, issued pursuant to this Regulation shall not be transferable.
Article 6
A security of ECU 30 per 100 kilograms shall be lodged for import licence applications for all products referred to in Article 1.
Article 7
Without prejudice to the provisions of this Regulation, Regulation (EEC) No 3719/88 shall apply.
However, by way of derogation from Article 8 (4) of that Regulation, the quantity imported under Regulation (EEC) No 715/90 may not exceed that indicated in sections 17 and 18 of import licences. The figure 0 shall be entered to that effect in section 19 of licences.
Article 8
This Regulation shall enter into force on the day of its publication in the Official Journal of the European Communities.
It shall apply with effect from 1 March 1990. This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 9 April 1990.
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Commission Regulation (EC) No 1442/2003
of 13 August 2003
opening a standing invitation to tender for the resale on the Community market of long-grain B rice from the 1999 harvest held by the Spanish intervention agency
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 Article 8(b) thereof,
Whereas:
(1) Commission Regulation (EEC) No 75/91(3) provides, among other things, that paddy rice held by intervention agencies is to be sold by tendering procedure at prices preventing market disturbance.
(2) Spain still has intervention stocks of long-grain paddy rice B from the 1999 harvest whose quality is in danger of deteriorating as a result of prolonged storage.
(3) In the present production situation where concessions for rice imports are being granted under international agreements and restrictions are being applied to subsidised exports, disposing of this rice on traditional markets inside the Community would inevitably result in an equivalent quantity being placed in intervention, which must be avoided.
(4) This rice can be disposed of by processing it into broken rice or into a form suitable for use in animal feed, on certain conditions.
(5) In order to ensure that the rice really is processed, the procedure should be specially monitored and the successful tenderer should provide a security, to be released on conditions to be laid down.
(6) The undertakings given by tenderers must be regarded as primary requirements within the meaning of Commission Regulation (EEC) No 2220/85 of 22 July 1985 laying down common detailed rules for the application of the system of securities for agricultural products(4), as last amended by Regulation (EC) No 1932/1999(5).
(7) Commission Regulation (EEC) No 3002/92(6), as last amended by Regulation (EC) No 770/96(7), lays down common detailed rules for verifying the use of products from intervention. Procedures should also be laid down to ensure the traceability of the products used for animal feed.
(8) So that the quantities awarded can be managed accurately, an allocation coefficient should be fixed for tenders offering the minimum selling price, while allowing tenderers to specify a minimum quantity awarded below which they do not wish their tender to stand.
(9) When the Spanish intervention agency notifies the Commission, the tenderers should remain anonymous.
(10) While respecting the tenderers' anonymity, they should be identified by numbers so that it is evident which have submitted several tenders and what prices they have offered.
(11) For control purposes, tenders must be traceable by their reference numbers, while safeguarding anonymity.
(12) With a view to modernising management, the information required by the Commission should be sent by electronic mail.
(13) 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 Spanish intervention agency shall launch a standing invitation to tender for the sale on the internal market of the Community of quantities of long-grain B rice from the 1999 harvest held by it and previously notified to the Commission under Regulation (EC) No 75/91, in particular Articles 2 and 5 thereof, as set out in Annex I hereto, with a view to its processing into broken rice within the meaning of Annex A to Regulation (EC) No 3072/95 or into a form suitable for use in animal feed (CN code 2309 ).
Article 2
1. The sale provided for in Article 1 shall take place in accordance with Regulation (EEC) No 75/91.
However, as an exception to Article 5 of that Regulation:
(a) tenders shall be drawn up on the basis of the actual quality of the lot to which they apply;
(b) the minimum sale price shall be set at a level which does not disturb the cereals or rice market.
2. Tenderers shall give the following undertakings,
(a) regarding the processing into broken rice:
- that within two months of the date of the award of the contract they will carry out the treatment provided for in Annex II, under the supervision of the competent authorities and at a place determined in agreement with them,
- that they, including the purchaser in the event of resale, will use the product for which the contract is awarded exclusively in the form of broken rice;
(b) regarding the processing into a form suitable for use in animal feed:
(i) where the tenderers are feed manufacturers:
- that within two months of the date of the award of the contract they will carry out the treatments described in Annex III or IV, under the supervision of the competent authorities and at a place determined in agreement with them, with a view to verifying the use made of the rice and ensuring the traceability of the products,
- that they will incorporate this product in feed within three months of the date of the award of the contract, except in cases of force majeure;
(ii) where the tenderers are rice mills:
- that within two months of the date of the award of the contract they will carry out the treatments described in Annex IV, under the supervision of the competent authorities and at a place determined in agreement with them, with a view to verifying the use made of the rice and ensuring the traceability of the products,
- that they will incorporate this product in feed within four months of the date of the award of the contract, except in cases of force majeure;
(c) that they will bear the costs of the processing and treatment of the products;
(d) that they will keep stock records demonstrating that they have respected their undertakings.
Article 3
1. At least eight days before the closing date of the first period for the submission of tenders, the Spanish intervention agency shall publish a notice of invitation to tender.
The notice, and any changes to it, shall be forwarded to the Commission before publication.
2. The notice of invitation to tender shall contain:
(a) the additional clauses and conditions of sale compatible with this Regulation;
(b) the places of storage and the name and address of the storer;
(c) the main physical and technological characteristics of the various lots established upon buying in by the intervention agency or during checks carried out subsequently;
(d) the number of each lot;
(e) details of the competent authorities responsible for monitoring the operation.
3. The Spanish intervention agency shall take all additional steps necessary to enable the parties concerned to assess the quality of the rice put up for sale before submitting their tenders.
Article 4
1. Tenders shall indicate whether they relate to processing into broken rice or into a form suitable for animal feed.
Tenders shall be valid only if they are accompanied by:
(a) evidence that the tenderer has lodged a security of EUR 15 per tonne;
(b) evidence that the tenderer is an animal feed manufacturer or a rice mill;
(c) a written undertaking by the tenderer to lodge a security for an amount equivalent to the difference between the intervention price for paddy rice applicable on the tender date plus EUR 15 and the price tendered per tonne of rice not later than two working days after the date of receipt of the notice of award of contract.
2. Once submitted, a tender may not be altered or withdrawn.
3. In case the Commission is required to fix an award coefficient for the quantities offered for sale as provided for in Article 7(2), tenderers should indicate any minimum awarded quantity below which they do not wish their tender to stand.
Article 5
1. The closing date for the submission of tenders for the first partial tendering procedure shall be 26 August 2003 at 12.00 (Brussels time).
2. The closing dates for the submission of tenders for subsequent partial tendering procedures shall be each Tuesday at 12.00 (Brussels time).
3. The closing date for the submission of tenders for the last partial tendering procedure shall be 25 November 2003 at 12.00 (Brussels time).
Tenders must be lodged with the Spanish intervention agency: Fondo Español de Garantía Agraria (FEGA) Beneficencia 8 E - 28004 Madrid telex: 23427 FEGA E fax: (34 91) 521 98 32, (34 91) 522 43 87
Article 6
1. The Spanish intervention agency shall notify the Commission of the information as specified in Annex V, by type of processing, no later than 9.00 (Brussels time) on the Thursday following the expiry of the deadline for the submission of tenders.
2. For each type of processing and for each partial tendering procedure, the tenderers shall be assigned an individual number, starting at 1, by the Spanish intervention agency.
To ensure anonymity, the numbers shall be allocated randomly and separately for each type of processing and each partial tendering procedure.
The reference numbers of each tender shall be given by the Spanish intervention agency in such a way as to ensure that the tenderers remain anonymous. For the entire standing tendering procedure, each tender shall be identified by its own reference number.
3. The notification referred to in paragraph 1 shall be made by electronic mail to the address given in Annex V using the form provided to the Spanish intervention agency by the Commission for that purpose.
The notification must be made even if no tenders are submitted, in which case it must state that no tenders have been received within the deadline laid down.
4. The Spanish intervention agency shall also notify the Commission of the information as specified in Annex V for rejected tenders, stating why they were rejected.
Article 7
For each type of processing, the Commission shall set the minimum sale price or decide not to award any quantities. In the event that tenders are submitted for the same lot and for a quantity larger than that available, the Commission may fix this price separately for each lot.
Where tenders are offering the minimum sale price, the Commission may fix an award coefficient for the quantities offered at the same time as it fixes the minimum sale price.
This Decision shall be taken in accordance with the procedure laid down in Article 22 of Regulation (EC) No 3072/95.
Article 8
The intervention agency shall immediately notify all tenderers of the outcome of their participation in the tendering procedure.
Within three working days of the notification referred to in the first paragraph, it shall send notices of award of contract to successful tenderers by registered letter or written telecommunication.
Article 9
Successful tenderers shall pay for the rice before it is removed, and at the latest within one month of the date of dispatch of the notice referred to in the second paragraph of Article 8. The risks and costs of storing rice which is not removed within the payment period shall be borne by the successful tenderers.
Following the expiry of the payment period, rice for which a contract is awarded and which is not removed shall be regarded for all purposes as having been removed from storage.
Where a successful tenderer fails to pay for the rice within the period referred to in the first paragraph, the contract shall be terminated by the intervention agency, where appropriate in respect of the quantity not paid for.
Article 10
1. The security referred to in Article 4(1)(a) shall be released
(a) in full for the quantities for which:
1. no award is made;
2. the offer does not stand, in accordance with Article 4(3);
3. the sale price is paid within the period set and the security referred to in Article 4(1)(c) has been lodged;
(b) proportionately to the quantity not awarded where an award coefficient is set for the quantities offered in accordance with Article 7(2).
2. The security referred to in Article 4(1)(c) shall be released in proportion to the quantities used only if the intervention agency has carried out all the checks necessary to ensure that the product is processed in accordance with this Regulation.
However, the security shall be released in full:
(a) on presentation of proof of processing as provided for in Annex II and proof of the undertaking provided for in the second indent of Article 2(2)(a);
(b) on presentation of proof that the treatment referred to in Annex III has been carried out, provided that not less than 95 % of the fine broken grains and/or fragments obtained is used in compound feed;
(c) on presentation of proof that the treatment referred to in Annex IV has been carried out, provided that not less than 95 % of the milled rice obtained is used in compound feed.
3. Proof that the rice has been incorporated in animal feed as referred to in this Regulation shall be provided in accordance with Regulation (EEC) No 3002/92.
Article 11
The obligation set out in Article 2(2) shall be regarded as a primary requirement within the meaning of Article 20 of Regulation (EEC) No 2220/85.
Article 12
In addition to the particulars provided for in Regulation (EEC) No 3002/92, box 104 of the control copy T5 shall refer, where appropriate, to the undertaking provided for in the second indent of Article 2(2)(a) and bear one or more of the following entries supplemented by the number of Annex II, III or IV, specifying the treatment required:
- Destinados a la transformación prevista en el anexo ... del Reglamento (CE) n° 1442/2003
- Til forarbejdning som fastsat i bilag ... til forordning (EF) nr. 1442/2003
- Zur Verarbeitung gemäß Anhang ... der Verordnung (EG) Nr. 1442/2003 bestimmt
- Προορίζονται για μεταποίηση που προβλέπεται στο παράρτημα ... του κανονισμού (ΕΚ) αριθ. 1442/2003
- For processing provided for in Annex ... to Regulation (EC) No 1442/2003
- Destinés à la transformation prévue à l'annexe ... du règlement (CE) n° 1442/2003
- Destinati alla trasformazione prevista all'allegato ... del regolamento (CE) n. 1442/2003
- Bestemd om te worden verwerkt overeenkomstig bijlage ... van Verordening (EG) nr. 1442/2003
- Para a transformação prevista no anexo ... do Regulamento (CE) n.o 1442/2003
- Tarkoitettu asetuksen (EY) N:o 1442/2003 liitteessä ... säädettyyn jalostukseen
- För bearbetning enligt bilaga ... till förordning (EG) nr 1442/2003.
Article 13
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, 13 August 2003.
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COMMISSION REGULATION (EC) No 379/2005
of 4 March 2005
amending Regulation (EC) No 1168/1999 laying down marketing standards for plums
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), and in particular Article 2(2) thereof,
Whereas:
(1)
Commission Regulation (EC) No 537/2004 of 23 March 2004 adapting several regulations concerning the market of fresh fruit and vegetables by reason of the accession of the Czech Republic, Estonia, Cyprus, Latvia, Lithuania, Hungary, Malta, Poland, Slovenia and Slovakia to the European Union (2) added several varieties to the non-exhaustive list of large-fruited varieties of Prunus domestica by replacing the Appendix to the Annex to Commission Regulation (EC) No 1168/1999 (3). However, the new Appendix does not contain the non-exhaustive list of large-fruited varieties of Prunus salicina it included before the amendment, following the recommendation of the United Nations Economic Commission for Europe to distinguish between varieties of Prunus domestica and those of Prunus salicina. In the interest of transparency on the world market, that list should be re-established.
(2)
Regulation (EC) No 1168/1999 should therefore be amended accordingly.
(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 Appendix to the Annex to Regulation (EC) No 1168/1999 is amended in accordance with the Annex to this Regulation.
Article 2
This Regulation shall enter into force on the twentieth 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 March 2005.
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COMMISSION DECISION of 6 October 1994 concerning the importation into the Community of fresh pigmeat, pigmeat products, live pigs and porcine embryos from Hungary and amending Decisions 82/8/EEC, 91/449/EEC and 92/322/EEC (Text with EEA relevance) (94/668/EC)
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Council Directive 72/462/EEC of 12 December 1972 on health and veterinary inspection problems upon importation of bovine, ovine and caprine animals and swine, fresh meat and meat products from third countries (1), as last amended by Regulation (EEC) No 1601/92 (2), and in particular Articles 6, 11, 15, 16, 21a and 22 thereof,
Having regard to Council Directive 91/496/EEC of 15 July 1991 laying down the principles governing the organization of veterinary checks on animals entering the Community from third countries and amending Directives 89/662/EEC, 90/425/EEC and 90/675/EEC (3), as last amended by Decision 92/438/EEC (4), and in particular Article 18 (7) thereof,
Having regard to Council Directive 90/675/EEC of 10 December 1990 laying down the principles governing the organization of veterinary checks on products entering the Community from third countries (5), as last amended by Directive 92/118/EEC (6), and in particular Article 19 (7) thereof,
Whereas the animal health conditions and veterinary certification for imports of fresh meat from Hungary were established by Commission Decision 82/8/EEC (7), as last amended by Decision 93/398/EEC (8);
Whereas the model for the veterinary certification for import of meat products from Hungary was established by Commission Decision 91/449/EEC (9), as last amended by Decision 94/453/EC (10);
Whereas the animal health conditions and veterinary certification for imports of domestic animals of the bovine and porcine species from Hungary were established by Commission Decision 92/322/EEC (11), as last amended by Decision 93/469/EEC (12);
Whereas, as a result of outbreaks of classical swine fever, the Commission adopted Decision 93/398/EEC concerning the importation into the Community of fresh pigmeat, pigmeat products, live pigs, and porcine embryos from Hungary and amending Decisions 82/8/EEC, 91/449/EEC and 92/322/EEC which regionalized Hungary in order to allow imports of domestic animals and embryos of the porcine species, fresh meat and meat products from such animals from Hungary with the exception of the county of Szabolcs-Szatmar-Bereg, and wild boars and their products from Hungary with the exception of the counties of Bekes, Szalbolcs-Szatmar-Bereg and Hajdu-Bihar;
Whereas further epidemiological information has been received from the Hungarian veterinary services in relation to the counties of Bekes, Hajdu-Bihar and Szabolcs-Szatmar-Bereg which demonstrates that the situation with regard to classical swine fever has improved in these counties;
Whereas it is now possible to authorize imports of domestic animals and embryos of the porcine species, fresh meat and meat products from such animals from the county of Szabolcs-Szatmar-Bereg and wild boars and their products from the counties of Bekes, Hajdu-Bihar and Szabolcs-Szatmar-Bereg in Hungary;
Whereas it is necessary to amend Decisions 82/8/EEC, 91/449/EEC, 92/322/EEC and revoke Decision 93/398/EEC accordingly;
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
Annex A to Decision 82/8/EEC is hereby amended as follows:
1. after 'Exporting country: Hungary', '(excluding in the case of fresh meat from swine, the county of SZABOLCS-SZATMAR-BEREG)' is deleted;
2. in Section IV, point 1, after 'Hungary', '(excluding the county of SZABOLCS-SZATMAR-BEREG)' is deleted.
Article 2
In Annex A, Part II to Decision 91/449/EEC, after 'Hungary', '(excluding in the case of products derived from the meat of swine slaughtered after 1 May 1993, the county of SZABOLCS-SZATMAR-BEREG)' is deleted.
Article 3
Decision 92/322/EEC is hereby amended as follows:
1. in Annexes C and D, 'the county of SZABOLCS-SZATMAR-BEREG' is deleted;
2. in Annexes C and D, Section V, paragraph 1, 'the county of SZABOLCS-SZATMAR-BEREG' is deleted.
Article 4
Decision 93/398/EEC is hereby revoked.
Article 5
This Decision shall apply from the 10th day following notification to Member States.
Article 6
This Decision is addressed to the Member States.
Done at Brussels, 6 October 1994.
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*****
COMMISSION DECISION
of 14 November 1988
relating to a proceeding under Article 85 of the EEC Treaty
(IV/32.358 - ServiceMaster)
(Only the English text is authentic)
(88/604/EEC)
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Economic Community,
Having regard to Council Regulation (EEC) No 17 of 6 February 1962, First Regulation implementing Articles 85 and 86 of the Treaty (1), as last amended by the Act of Accession of Spain and Portugal, and in particular Articles 4, 6 and 8 thereof,
Having regard to the application for negative clearance and notification submitted on 3 June 1987 by ServiceMaster Limited (England) of a standard form franchise agreement concerning the provision of housekeeping, cleaning and maintenance services in the Community,
Having regard to the summary of the application and notification published (2) pursuant to Article 19 (3) of Regulation No 17,
After consulting the Advisory Committee on Restrictive Practices and Dominant Position,
Whereas:
I. THE FACTS
(1) ServiceMaster has notified a standard form service franchise agreement for use in all the EEC Member States. The agreement concerns the supply of housekeeping, cleaning and maintenance services to both commercial and domestic customers. ServiceMaster has applied for a negative clearance or alternatively an exemption decision under Article 85 (3) of the Treaty.
(2) Following observations made by the Commission, ServiceMaster has agreed to make certain amendments to its notified agreement. The amended agreement was communicated to the Commission on 10 May 1988.
(3) Reference is made to the notice published pursuant to Article 19 (3) of Regulation No 17 (3), for a more extensive description of the ServiceMaster franchise system and its relevant clauses which are mentioned of discussed hereinafter only in so far as is necessary for the reasoning of the Commission. The facts set out in the Article 19 (3) notice form part of this Decision.
(4) The Commission did not receive any observations from interested third parties following publication of the said notice.
II. LEGAL ASSESSMENT
A. Article 85 (1)
(5) The franchise network set up by ServiceMaster by means of the notified standard form agreement is a service franchise; it concerns the supply of housekeeping, cleaning and maintenance service to commercial and domestic customers according to the instructions of ServiceMaster and, on an ancilliary basis, the supply of goods directly linked to the provision of those services. The Service
Master franchise includes a uniform presentation of the contract services based on the use of a common name, a substantial pacage of technical, commercial and administrative know-how relating to the provision of the services and continuing assistance provided by ServiceMaster. The franchisees are proprietors of their businesses, which they operate for their own account and at their own risk. In exchange for the right to exploit a ServiceMaster franchise and certain ServieMaster intellectual property rights related to trade marks and copyrights, the franchisees have to make various financial contributions and are bound by obligations aimed a preserving the uniformity and quality standards of the ServiceMaster system.
(6) The Commission considers that, despite the existence of specific matters, service franchises show strong similarities to distribution franchises and can therefore basically be treated in the same way as the distribution franchises already exempted by the Commission (1). This basic premise relies on the fact that the EEC competition rules apply without distinction to both products and services. This does not prevent the Commission from taking into account in individual cases certain specific characsteristics relating to the provision of services.
In particular, know-how is often more important in the apply of service than in the supply of goods because each service requires the execution of particular work and creates a close personal relationship between the provider of the service and the receiver of the service. Therefore, the protection of the franchisor's know-how and reputation can be even more essential for service franchises than for distribution franchises where mainly the goods advertise the business by carrying the trademark of the producer or distributor. Also certain services, as for instance the ServiceMaster services, are executed at the customer's premises, while goods are usually sold at the premises of the retailer. Services of this type further reinforce the link between the provider of the services and the customer.
Provisions not falling within Article 85 (1)
The following provisions of the ServiceMaster franchise agreement do not fall within Article 85 (1).
(a) Provisions aimed at preventing the know-how and other assistance given by the franchisor from benefiting competitors
(7) The franchisee's obligation to preserve, before and after the termination of the agreement, the secrecy of all information and know-how and to impose a similar obligation on his employees. The commercial value of know-how is dependent on its secrecy. The obligation not to disclose the know-how is a necessary condition for maintaining such value and for enabling ServiceMaster to grant it to other potential franchises.
(8) The franchisee's obligation to use the know-how and intellectual property rights licensed solely for the purposes of exploitation of the ServiceMaster franchise. This field-of-use restriction is necessary to protect the franchisor's know-how because it lends itself to use with competitive services provided by either the franchisee or other competitors.
(9) The franchisee's obligation, after termination of the agreement, to cease using the know-how package of ServiceMaster unless this know-how package as a whole has fallen into the public domain otherwise than in breach of obligation. This post-term use ban on know-how is essential for the protection of the franchisor's right to this know-how. As long as its know-how has not become accessible to the public, the franchisor has the right to limit the transfer thereof to a fixed period of time, in this case to the lifetime of the franchise agreement. If the franchisor lost the exclusive right to make use of its know-how after expiry of the franchise agreement, it could not prevent competitors from using its know-how.
(10) The franchisee's obligation, during the term of the agreement, not to be engaged in a competing business, except through the acquisition of a financial interest not exceeding 5 % in the capital of a publicly-quoted company. This non-competition obligation is necessary to avoid the risk that the know-how supplied by ServiceMaster to its franchisees might benefit competitors, even indirectly. The limitation of the acquisition of a financial interest in a publicly-quoted ccompany to 5 % of the share capital is intended to ensure that the franchisees do not become involved in the operation of such a company, with the risk of transferring know-how to a competing business. Although the prohibition against acquiring
non-controlling financial interest in the capital of a competing publicly-quoted company can be a restriction of competition falling within Article 85 (1), in this particular case it is not considered to be an appreciable restriction because the franchisees are generally small undertakings for which the prohibition against acquiring more than 5 % of a publicly-quoted company does not normally constitute a real hindrance in the development of their own activities. Furthermore, the franchisees are completely free in the acquisition of financial interests in non-competing companies.
(11) The franchisee's obligation, after the termination of the agreement, not to be engaged, for a period of one year, in a competing business within any territory within which he has provided services prior to the termination of the agreement. In addition, the franchisee may not solicit, for a period of one year, customers who have been, during the period of two years prior to the termination of the agreement, his customers.
This post-term non-competition and non-solicitation obligation is acceptable both as regards its duration and its geographical extent. This obligation is necessary to prevent the ex-franchisee from using the know-how and clientele he has acquired for his own benefit or for the benefit of ServiceMaster's competitors. It is further necessary to allow ServiceMaster a limited time period to establish a new outlet in the ex-franchisee's territory. This assessment does not prejudice any relief available to franchisees under national law upon termination of the contract.
(12) The prohibition on the franchisee against selling the franchised business or against assigning the franchise agreement to a third party without ServiceMaster's approval. This prohibition is clearly indispensable to protect the know-how and assistance provided by the franchisor.
(b) Provisions which allow the franchisor to safeguard the common identity and reputation of the franchise network
(13) The franchisee's obligation to use ServiceMaster's know-how and to apply the trading methods developed by ServiceMaster is an obligation which is inherent in the franchise system and ensures the standards of uniformity and quality of the franchise network.
(14) The franchisee's obligation to communicate to ServiceMaster any improvements he makes in the operation of the business. This grant-back obligation is made on a non-exclusive and reciprocal basis. It will improve the efficiency of the ServiceMaster franchise network by creating a free interchange of improvements between all franchisees.
(15) The franchisee's obligation to obtain ServiceMaster's prior approval for the location his franchise premises. This obligation is necessary to ensure that a bad choice does not damage the reputation of the network which is a concern of the whole franchise network.
(16) The franchisee's obligation to devote the necessary time and attention to the ServiceMaster business and to use his best endeavours to promote and increase the turnover of that business. This promotion obligation is intended to oblige the franchisee to concentrate his efforts on the development of his business. This obligation is acceptable in the light of the concern to preserve the reputation and uniform identity of the network by creating an efficient franchise system devoting all its efforts to the provision of the ServiceMaster services.
(17) The franchisee's obligation to purchase certain cleaning equipment and certain chemicals used in the operation of the business from ServiceMaster or other suppliers nominated or approved by ServiceMaster. This purchase obligation is essential for the efficient working of the business and acts as a form of quality control. The obligation does not prevent franchisees from obtaining supplies of equipment and goods of equivalent quality from third-party suppliers. ServiceMaster will not withhold its approval of suppliers proposed by franchisees if the goods of those suppliers chemicals, the requirements of safety, non-toxicity, bio-degradability and effectiveness. The franchisee is also free to purchase the required goods from any other ServiceMaster franchisee.
(18) The franchisee's obligation to obtain the approval of ServiceMaster for the carrying-out of advertising. This control concerns the nature of advertisements, but not selling prices, with the object of ensuring conformity with the ServiceMaster brand image.
(19) The franchisee's obligation to submit to inspections of his premises by ServiceMaster and to present financial statements. This obligation allows the franchisor to verify whether the franchisee is operating in accordance with the ServiceMaster methods of operation and is fulfilling his financial obligations. In so far as this right of inspection is not abused to discipline franchisees in their sales activities outside their own territory or in the determination of their sales prices, it cannot be considered restrictive of competition.
(1) OJ No 13, 21. 2. 1962, p. 204/62.
(2) OJ No C 218, 20. 8. 1988, p. 3.
(3) And notified annexed to the present Decision.
(1) See Commission Decision 87/407/EEC, Computerland (OJ No L 222, 10. 8. 1987, p. 12); 87/14/EEC, Yves Rocher (OJ No L 8, 10. 1. 1987, p. 49); 87/17/EEC, Pronuptia (OJ No L 13, 15. 1. 1987, p. 39).
(c) Other provisions
(20) The recommendation of sales prices to franchisees is not a restriction of competition since franchisees remain entirely free to determine their own prices for the supply of services and home-care products.
(21) The franchisee's obligation to resell home care products only with the consent of ServiceMaster and only to customers serviced by the franchisee. This restriction on the resale of home-care products is based on the legitimate concern that the franchisee must concentrate on his primary business which is the provision of services, rather than the resale of goods.
Provisions falling within Article 85 (1)
The following provisions of the ServiceMaster franchise agreement fall within Article 85 (1).
(22) The combined effect of the clause which prohibits the franchisee from setting up further outlets outside his own territory, and the territorial protection clause which prevents the franchisee from actively seeking customers outside his territory, results in a certain degree of market-sharing between the franchisees, thus restricting competition within the ServiceMaster network.
This territorial protection is, however, limited by two elements: the franchisee holds a non-exclusive right only within his territory with regard to ServiceMaster itself and each franchisee is entitled to provide services to non-solicited customers outside his territory.
(23) Trade between Member States is affected by the prohibition imposed upon franchisees against setting up outlets in other Member States and against actively seeking customers in territories of franchisees of other Member States. These prohibitions lead to market-sharing between the franchisees of the different Member States. This effect on intra-Community trade is likely to be appreciable. ServiceMaster has notified a standard form agreement which it will use for the establishment of a European-wide franchise network. At the present time, ServiceMaster is only developing this network. However, when assessing the appreciable effect on trade between Member States the Commission must also take into account the likely future development of such a network. In this respect it must be considered that ServiceMaster is an important competitor in the market which is capable of setting up a great number of outlets throughout the EEC as it has done before in the United States and Canada where ServiceMaster has over 2 900 franchisees. ServiceMaster already has a 6 % market share in the United Kingdom and reckons that its EEC market share will exceed 5 % in the near future. Given this context, the Commission considers that there exists a sufficient probability that the restrictions contained in the notified standard form agreement are, at the least, such as to affect intra-Community trade appreciably. The notified standard form franchise agreement therefore falls within Article 85 (1). It is thus necessary to examine whether that agreement can be granted an exemption under Article 85 (3).
B. Article 85 (3)
(24) The ServiceMaster standard form franchise agreement contributes, through the combined effect of all its provisions, to improving the supply of the services concerned for the following reasons:
- it helps ServiceMaster rapidly to penetrate new markets with only limited investments, in this case the markets of all 12 Member States,
- this rapid development of a European-wide service network increases inter-brand competition with other service providers in the various markets concerned,
- it helps a great number of small undertakings to enter a new market by allowing them to set up outlets more rapidly and with a higher chance of success because they receive the benefit of ServiceMaster's name and reputation, and of its technical, commercial and administrative know-how,
- it permits an intensive servicing of customers through the personal commitment of independent traders.
(25) The ServiceMaster standard form franchise agreement allows consumers a fair share of the benefit resulting from the above improvements in the supply of services. First, the network as a whole is intended to provide a better and uniformly high-quality service to consumers. Secondly, as already mentioned in the preceeding paragraph, consumers will benefit from the efficient service which the franchisee will be encouraged to provide as an independent trader who has a personal and direct interest in the success of his business. Thirdly, the freedom which consumers enjoy to obtain services elsewhere in the network will force franchisees to pass on to consumers a reasonable part of the benefits of this intra-band competition. Finally, because of strong inter-brand competition, the franchisees can be excepted to offer better services and prices.
(26) The provisions falling within Article 85 (1) are indispensable to the establishment and existence of the franchise network: the limited territorial protection granted to the franchisees is necessary to obtain and protect their investment, comprising inter alia the cost of the establishment and maintenance of the business premises, the payment of the initial franchise fee, the acquisition of the necessary means of transport for the carrying out of the services at the customers' premises and the acquisition of special equipment. The limited territorial protection is also necessary to ensure that the franchisees will concentrate their service activity on their own territory. On the other hand, the franchisees retain passive service rights in other territories and remain free in the determination of their sales prices.
(27) The ServiceMaster standard form franchise agreement does not afford its members the possibility of eliminating competition in respect of a substantial part of the services concerned.
The inter-brand competition in the market concerned is both very strong and open: the market for cleaning, housekeeping and maintenance services is highly competitive, with a large number of firms supplying similar or identical services. It is also a market with no barriers to entry, with the result that new suppliers can at any time challenge any attempt by ServiceMaster or its franchisees to increase their prices.
Intra-brand competition within the ServiceMaster network itself is also preserved: the limited territorial protection does not grant the franchisees any marketing or customer exclusivity. Franchisees are free to provide services to non-solicited customers resident outside their own territory. This brings about a certain degree of price competition between franchisees, who are free to determine their sales prices.
(28) The notified agreement therefore meets all the requirements for an exemption under Article 85 (3).
C. Articles 6 and 8 of Regulation No 17
(29) The agreement as notified by ServiceMaster on 3 June 1987 contained a number of provisions which did not fulfill the conditions for an exemption, in particular provisions relating to the territorial protection which originally excluded any intra-brand competition between franchisees. Following observations made by the Commission, ServiceMaster agreed to make a certain number of amendments to its agreement. ServiceMaster communicated the amended agreement to the Commission on 10 May 1988. Therefore, the date on which the exemption can take effect is the date of communication of the amended agreement.
(30) It is appropriate in this case, in view of the highly competitive nature of the market concerned and the absence of any barriers to entry to that market, to grant the exemption for a period of 10 years
HAS ADOPTED THIS DECISION:
Article 1
Pursuant to Article 85 (3) of the EEC Treaty, the provisions of Article 85 (1) are hereby declared inapplicable from 10 May 1988 until 9 May 1998 to the standard form service franchise agreement which ServiceMaster concludes with its franchisees within the EEC.
Article 2
This Decision is addressed to ServiceMaster Ltd, 50 Commercial Square, Freeman's Common, Leicester LE2 7SR, United Kingdom.
Done at Brussels, 14 November 1988.
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*****
COMMISSION DECISION
of 30 December 1982
authorizing the United Kingdom to restrict the marketing of seed of certain varieties of agricultural plant species
(Only the English text is authentic)
(82/947/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 Directive 80/1141/EEC (2), and in particular Article 15 (2), (3) and (7) thereof,
Having regard to the application lodged by the United Kingdom,
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) of the said Directive provides that a Member State may be authorized upon application to prohibit the marketing of seed and propagating material of certain varieties;
Whereas the United Kingdom has applied for such authorization for a certain number of varieties of different species;
Whereas the varieties listed in this Decision have been the subject of official growing trials in the United Kingdom; whereas the results of these trials have led the United Kingdom to decide that these varieties are not sufficiently distinct there;
Whereas in respect of the varieties Sally (red clover) and Pepite (barley), the results of the trials show that in the United Kingdom, when compared with the national rules governing the acceptance of varieties there, which apply as part of current Community provisions, they are not distinct from other varieties accepted therein (first subparagraph of Article 15 (3) (a) thereof);
Whereas in respect of the variety Campremy (common wheat), the results of the trials show that in the United Kingdom, when compared with the national rules governing the acceptance of varieties there, which apply as part of current Community provisions, this is not sufficiently homogeneous with regard to a certain number of characteristics therein (Article 15 (3) (a) third case, of the said Directive);
Whereas, therefore, the application of the United Kingdom in respect of 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
The United Kingdom 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. Fodder plants:
Trifolium pratense L.
Sally
II. Cereals:
1. Hordeum vulgare L.
Pepite
2. Triticum aestivum L.
Campremy
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 United Kingdom 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 other Member States thereof.
Article 4
This Decision is addressed to the United Kingdom.
Done at Brussels, 30 December 1982.
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COMMISSION REGULATION (EC) No 402/2008
of 6 May 2008
on procedures for the importation of rye from Turkey
(Codified version)
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Council Regulation (EC) No 2008/97 of 9 October 1997 laying down certain rules for the application of the special arrangements for imports of olive oil and certain other agricultural products originating in Turkey (1), and in particular Article 4 thereof;
Whereas:
(1)
Regulation (EEC) No 2622/71 of the Commission of 9 December 1971 on procedures for the importation of rye from Turkey (2) has been substantially amended several times (3). In the interests of clarity and rationality the said Regulation should be codified.
(2)
By Regulation (EC) No 2008/97, the Council adopted rules of application for the special arrangements for imports of rye from Turkey laid down in the Additional Protocol to the Agreement establishing an Association between the European Community and Turkey.
(3)
Those special arrangements provide, under certain conditions, for a reduction of the duty on imports of rye from Turkey. To that end, proof must be furnished that a special export tax payable by the exporter has in fact been paid.
(4)
It is appropriate to fix, pursuant to Article 5 of Regulation (EC) No 2008/97, the procedure for proving payment of the special export tax.
(5)
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
Proof that the special export tax referred to in Article 5 of Regulation (EC) No 2008/97 has been paid shall be furnished to the competent authority of the importing Member State by presentation of movement certificate A.TR.1. In that case, one of the entries referred to in Annex I to this Regulation shall be made in the ‘Remarks’ section by the competent authority.
Article 2
Regulation (EEC) No 2622/71 is repealed.
References to the repealed Regulation shall be construed as references to this Regulation and shall be read in accordance with the correlation table in Annex II.
Article 3
This Regulation shall enter into force on the twentieth 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, 6 May 2008.
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COUNCIL DECISION
of 27 June 2005
on the signing and provisional application of the Agreement between the European Community and the Republic of Chile on certain aspects of air services
(2006/734/EC)
THE COUNCIL OF THE EUROPEAN UNION,
Having regard to the Treaty establishing the European Community, and in particular Article 80(2) in conjunction with the first sentence of the first subparagraph of Article 300(2) thereof,
Having regard to the proposal from the Commission,
Whereas:
(1)
The Council decided on 5 June 2003 to authorise the Commission to open negotiations with third countries on the replacement of certain provisions in existing bilateral agreements with a Community agreement.
(2)
The Commission has negotiated on behalf of the Community an Agreement with the Republic of Chile on certain aspects of air services in accordance with the mechanisms and directives in the Annex to that Decision.
(3)
Subject to its possible conclusion at a later date, the Agreement negotiated by the Commission should be signed and provisionally applied,
HAS DECIDED AS FOLLOWS:
Article 1
The signing of the Agreement between the European Community and the Republic of Chile on certain aspects of air services is hereby approved on behalf of the Community, subject to the Council Decision concerning the conclusion of the said Agreement.
The text of the Agreement is attached to this Decision.
Article 2
The President of the Council is hereby authorised to designate the person(s) empowered to sign the Agreement on behalf of the Community subject to its conclusion.
Article 3
Pending its entry into force, the Agreement shall be applied provisionally from the first day of the first month following the date on which the Parties have notified each other of the completion of the necessary procedures for this purpose.
Article 4
The President of the Council is hereby authorised to make the notification provided in Article 8(2) of the Agreement.
Done at Luxembourg, 27 June 2005.
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COUNCIL REGULATION (EEC) No 216/84 of 18 January 1984 amending Regulation (EEC) No 2616/80 instituting a specific Community regional development measure contributing to overcoming constraints on the development of new economic activities in certain zones adversely affected by restructuring of the steel industry
THE COUNCIL OF THE EUROPEAN COMMUNITES,
Having regard to the Treaty establishing the European Economic Community,
Having regard to Council Regulation (EEC) No 724/75 of 18 March 1975 establishing a European Regional Development Fund (1), as last amended by Regulation (EEC) No 3325/80 (2), and in particular Article 13 (3) thereof,
Having regard to the proposal from the Commission (3),
Having regard to the opinion of the European Parliament (4),
Having regard to the opinion of the Economic and Social Committee (5),
Whereas Article 13 of Regulation (EEC) No 724/75 (hereinafter referred to as "the Fund Regulation") provides, independently of the national allocation of resources fixed by Article 2 (3) (a) of that Regulation, for participation by the Fund in financing specific Community regional development measures which are in particular linked with Community policies and with measures adopted by the Community, in order to take better account of their regional dimension or to reduce their regional consequences;
Whereas, pursuant to that Article, the Council adopted on 7 October 1980 an initial series of Regulations instituting specific Community regional development measures and, in particular, Regulation (EEC) No 2616/80 (6) instituting a specific Community regional development measure contributing to overcoming constraints on the development of new economic activities in certain zones adversely affected by restructuring of the steel industry, this measure being hereinafter referred to as "the specific measure";
Whereas, pursuant to that Regulation and in particular Article 3 thereof, the Commission has approved special programmes relating to certain zones in Belgium and the United Kingdom and has at the same time decided to allocate appropriations to those programmes;
Whereas the worsening problems in the steel industry require that the specific measure be extended to new zones in the United Kingdom, in France, in the Federal Republic of Germany and in the Grand Duchy of Luxembourg ; whereas the Member States concerned have provided the Commission with information relating to regional problems which would be a suitable subject for a specific Community measure;
Whereas, in addition, the presence of excess capacity in the steel industry is one of the basic causes of difficulties in this sector and the effort to reduce capacity which must be undertaken in accordance with the "General objectives for steel" defined by the Commission is likely to affect regional employment;
Whereas, by Commission Decision No 2320/81/ECSC of 7 August 1981 establishing Community rules for aids to the steel sector (7), it was laid down that aids to the steel industry can be considered as compatible with the orderly functioning of the common market provided that "the recipient undertaking or group of undertakings is engaged in the implementation of a systematic and specific restructuring programme" and "the said restructuring programme results in an overall reduction in the production capacity of the recipient undertaking or group of undertakings";
Whereas the Commission must rule on the requests concerning aid which are submitted in the framework (1) OJ No L 73, 21.3.1975, p. 1. (2) OJ No L 349, 23.12.1980, p. 10. (3) OJ No C 15, 19.1.1983, p. 10. (4) OJ No C 184, 10.6.1983, p. 163. (5) OJ No C 124, 9.5.1983, p. 2. (6) OJ No L 271, 15.10.1980, p. 9. (7) OJ No L 228, 13.8.1981, p. 14. of restructuring programmes and which were to be notified to it by 30 September 1982 at the latest;
Whereas the specific measure should be applicable forthwith in areas marked by an important and recent decline in the steel industry in such a way as to have contributed already to the aggravation of existing regional disparities;
Whereas the specific measure should also be applicable to those areas marked by a reduction in production capacities, envisaged in connection with the implementation of restructuring programmes likely to involve a worsening of the regional employment situation, such application taking place as and when the Commission's adoption of a position on these programmes enables the areas which meet the criteria adopted to be identified;
Whereas the specific measure must be supplemented by the introduction of certain new types of assistance with the object of strengthening the economic fabric of the said areas in such a way as to contribute to the creation of alternative employment;
Whereas the development of small and mediumsized undertakings (hereinafter referred to as "SMUs") may be accelerated by allowing them better to adapt their production potential, in particular through investment aids;
Whereas these investments may be encouraged by the provision of capital grants on the basis of existing national schemes ; whereas provision should be made for such aid to be reinforced by additional aid chargeable to the Community during a transitional period ; whereas these investments may also be encouraged by the grant, by the Commission, of interest rebates on Community global loans;
Whereas economic promotion in the zones concerned should be further stimulated by especially active management of the public aids and services available, particularly those provided for under the special programme ; whereas, to this end, there is a need to establish or extend services responsible for informing existing or potential undertakings of the availability of such aids and services and to help those undertakings to take advantage of them;
Whereas, in order to accelerate the implementation of the special programmes, the rules laid down by Regulation (EEC) No 2616/80 concerning budgetary commitments, payment of aid from the Fund and advances made from the Fund should be amended;
Whereas additional financial resources are required to implement the specific measure so strengthened and extended to cover new areas;
Whereas, on the one hand, those Member States in respect of which a special programme has already been approved should amend those programmes and France, the Federal Republic of Germany and the Grand Duchy of Luxembourg should submit to the Commission a special programme in accordance with Regulation (EEC) No 2616/80 and, on the other hand, the other Member States concerned should present a special programme at a later date,
HAS ADOPTED THIS REGULATION:
SECTION 1
Article 1
Regulation (EEC) No 2616/80 is hereby amended in accordance with the following Articles.
Article 2
Article 2 is replaced by the following:
"Article 2
1. The specific measure shall apply to zones which fulfil, in principle, the following criteria: (a) a minimum number of jobs in the steel industry;
(b) industrial employment dependent in large measure on the steel industry;
(c) major job losses in the steel industry in recent years;
(d) eligibility of the zone concerned for a national regional aid scheme;
(e) the social and economic situation in the region in which the zone concerned is situated ; this situation shall be assessed on the basis of the per capita gross domestic product and structural unemployment;
(f) an expected reduction in production capacity linked to implementation of restructuring programmes likely to bring about a worsening of the regional employment situation.
2. The specific measure shall apply on the entry into force of this Regulation to the following zones to the extent to which they conform, in principle, to the criteria laid down in paragraph 1 (a), (b), (c), (d) and (e):
In Belgium:
The provinces of Hainaut, Liège and Luxembourg (Commission Decision of 22 July 1982).
In the Federal Republic of Germany:
The Saarland, including the adjacent zones of the "Land" of Rheinland-Pfalz which receive aid.
The Grand Duchy of Luxembourg.
In Italy:
The province of Naples.
In the United Kingdom:
The Strathclyde region, the counties of Cleveland, Clwyd, South Glamorgan, West Glamorgan (including those parts of the travel-to-work area of Port Talbot which are situated in the county of Mid Glamorgan) and Gwent, the employment office area of Corby, the travel-to-work area of Llanelli in the county of Dyfed ; the county of Durham (including those parts of the travel-to-work area of Consett which are situated in the counties of Northumberland and Tyne and Wear) ; the county of Humberside (including those parts in the travel-to-work area of Scunthorpe which are situated in the county of Lincolnshire) ; the county of South Yorkshire, including the travel-to-work area of Sheffield ; the travel-to-work area of Workington in the county of Cumbria.
In France
The "departments" of Moselle, Nord, Pas-de-Calais and Meurthe-et-Moselle, including in this last-mentioned, the urban area of Nancy.
3. The specific measure shall also apply to those zones which, in principle, meet the criteria referred to in paragraph 1 (a), (b) and (f) as soon as the Commission has adopted a position on the restructuring programmes for the steel industry, transmitted by the Member States in accordance with Commission Decision No 2320/81/ECSC (1).
In accordance with this provision, the specific measure shall apply, at the request of the Member States concerned, as the Commission adopts its position on the programmes mentioned above, to zones situated in the Member States referred to in paragraph 2 which may also be situated in other Member States.
The Commission shall take its decision within a maximum of two months of the date on which the Member State concerned submits the abovementioned programmes and its corresponding request relating to the zones likely to benefit from the specific measure.
(1) OJ No L 228, 13.8.1981, p. 14."
Article 3
The following paragraph 2a is added to Article 3:
"2a. The preparation and implementation of the special programme shall be closely coordinated with national and Community policies and financial instruments, in particular with the aid granted in connection with the ECSC, the Social Fund, the European Investment Bank and the new Community instrument."
Article 4
Article 4 (3) is replaced by the following:
"3. Creation or development of consultancy firms or other bodies for management or organization matters ; setting up or development of economic promotion agencies.
The activities of such firms or bodies may include temporary assistance to undertakings for the implementation of their recommendations.
Economic promotion agencies shall be responsible for: - opening up possibilities, through direct contacts at local level, for economic ventures by giving advice about access to available public aids and services, particularly those provided for under the special programme, and
- contributing to the success of these ventures by helping existing or potential undertakings to take advantage of such aids and services."
Article 5
The following points 7 to 9 are added to Article 4:
"7. Preparation of sectoral analyses intended to provide SMUs in the regions concerned with information on the potential of national, Community and external markets and on the effects to be anticipated therefrom on the production and organization of SMUs;
8. Aids to investment in SMUs designed to create new undertakings or to assist the adaptation of production to market potential by existing undertakings when justified by the analyses mentioned under point 7 or other satisfactory forms of proof. Such investment may also concern common services provided for a number of undertakings;
9. Investment aids in the form of interest rebates on global loans in favour of small industrial projects, with the aim of encouraging the creation and development of SMUs, such loans being granted under Article 56 of the ECSC Treaty."
"
Article 6
Points (c) and (d) of Article 5 (1) are replaced by the following:
" (c) for the operations concerning the consultancy activities referred to in Article 4 (3) : aid covering a part of the expenditure of undertakings relating to services supplied by consultancy firms or bodies. Such aid shall be on a decreasing scale and be of three years' duration. It shall cover, in the first year, 70 % of the expenditure and shall not exceed 55 % of the total expenditure for the three-year period (indirect aid) ; the Member State may replace this system by an equivalent system of aid to consultancy firms or bodies (direct aid);
(d) for the operations concerning economic promotion referred to in Article 4 (3) : aid covering a part of the operating costs incurred by the activities of promotion services. Such aid shall be on a decreasing scale and shall be of five years' duration. It shall cover, for the first year, 60 % of the operating costs and shall not exceed 50 % of the total costs per promoter for the five-year period. These activities, which must be new and concern specifically the zones covered by Article 2 may be entrusted by the Member State concerned to special bodies.
"
Article 7
In Article 5 (1) (g), "and limited to 50 000 EUA per study" is replaced by "and limited to 120 000 ECU per study".
Article 8
The following points (i) to (k) are added to Article 5 (1):
" (i) operations relating to sectoral analyses under Article 4 (7) : 70 % of their cost;
(j) operations relating to investment under Article 4 (8) : 50 % of the public expenditure resulting from the granting of aid to the investment. This aid may contain a supplementary element in relation to the most favourable existing regional arrangements. The supplementary aid, for which the Community shall be responsible for a period of four years, may be up to 10 % of the cost of the investment. The public aid may take the form of a capital grant or interest rebate;
(k) operations relating to interest rebates under Article 4 (9) : the interest rebate shall be 3 % over five years. It shall be financed by the Community.
"
Article 9
Article 5 (2) is replaced by the following:
"2. For the aid referred to in paragraph 1 (a), (j) and (k), aggregation of aid from the quota and non-quota sections of the Fund is excluded."
Article 10
Article 5 (5) is replaced by the following:
"5. Budgetary commitments relating to the financing of the special programme, except with regard to the interest rebates on Community global loans, shall be implemented by annual tranche. The first tranche shall be committed at the time of the Commission's acceptance of the programme. The commitment of subsequent annual tranches shall be made according to budgetary availability and the progress made on the programme. Concerning the interest rebates under Article 4 (9), decisions shall be taken by the Commission for each global loan, subject to the grant thereof, at the time of its decision on a global loan under the ECSC budget."
Article 11
The introductory words to Article 6 (1) are replaced by the following:
"1. The amount of the Fund contribution in respect of the measures included in the special programme shall be paid to the Member State concerned or directly, and in accordance with the latter's instructions, to the bodies responsible for their implementation, according to the following rules:".
Article 12
Article 6 (1) (c) is replaced by the following:
"(c) at the request of a Member State, advances of the amount of each annual tranche may be made according to progress made on operations and budgetary availability.
From the beginning of operations, an advance of 60 % of the Fund contribution concerning the first annual tranche may be paid by the Commission. When the Member State has certified that half of the first advance has been spent, a second advance, or 25 %, may be paid by the Commission.
From the beginning of the subsequent annual tranche, advances may be paid under the terms provided for in the foregoing subparagraphs.
The balance of each annual advance shall be paid at the request of the Member State when it has certified that the operations corresponding to the tranche in question may be considered as finished, and on presentation of the amount of public expenditure which had been committed."
Article 13
The following paragraph 1a is inserted in Article 6:
"1a. Interest rebates allowed on global Community loans shall be so allowed with a view to their utilization for the secondary loans made to firms.
Appropriate procedures will be established between the Commission and the financial institutions to which global loans are granted, in order to permit the management of these aids and the necessary controls."
Article 14
The following sentence is added to Article 6 (2):
"These reports shall be supplemented by information supplied by the Commission on the implementation of Community aids made in the form of interest rebates on Community global loans."
Article 15
Article 6 (5) is replaced by the following:
"5. When each special programme has been implemented, a report including information on the number and nature of the jobs created and maintained shall be presented by the Commission to the Regional Policy Committee and the European Parliament."
Article 16
The following subparagraphs are added to point 3 (b) of the Annex:
"Particulars of the nature of sectoral analyses bearing on production structures, market potential and measures to be implemented in order to adapt and develop production and marketing.
Description of rules governing investment aids provided within the programme framework.
Description of measures planned under the programme for economic promotion."
SECTION 2
Article 17
1. Belgium, Italy and the United Kingdom shall amend the special programmes referred to in Article 3 of Regulation (EEC) No 2616/80 and approved by the Commission, in accordance with the amendments set out in section 1 hereof.
2. The amended special programmes shall be approved by the Commission in accordance with Article 3 (6) of Regulation (EEC) No 2616/80.
3. Without prejudice to Article 5 (4) of Regulation (EEC) No 2616/80, the amount of the Fund's assistance to the amended special programmes may not exceed the amount fixed by the Commission at the time of approval of the programmes.
Article 18
The duration of the special programmes to be submitted by the Federal Republic of Germany, the Grand Duchy of Luxembourg and France shall be five years starting from the 60th day after the date on which this Regulation enters into force. The duration of the amended special programmes referred to in Article 17 shall be extended for the same period.
Article 19
Expenditure resulting from the special programmes thus amended and from the special programmes to be submitted by the Federal Republic of Germany, the Grand Duchy of Luxembourg and France, and which is incurred from the date of entry into force of this Regulation, shall be eligible.
Article 20
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, 18 January 1984.
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COMMISSION REGULATION (EC) No 977/2006
of 29 June 2006
fixing the maximum export refund for butter in the framework of the standing invitation to tender provided for in Regulation (EC) No 581/2004
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 the third subparagraph of Article 31(3) thereof,
Whereas:
(1)
Commission Regulation (EC) No 581/2004 of 26 March 2004 opening a standing invitation to tender for export refunds concerning certain types of butter (2) provides for a permanent tender.
(2)
Pursuant to Article 5 of Commission Regulation (EC) No 580/2004 of 26 March 2004 establishing a tender procedure concerning export refunds for certain milk products (3) and following an examination of the tenders submitted in response to the invitation to tender, it is appropriate to fix a maximum export refund for the tendering period ending on 27 June 2006.
(3)
The Management Committee for Milk and Milk Products has not delivered an opinion within the time limit set by its chairman,
HAS ADOPTED THIS REGULATION:
Article 1
For the permanent tender opened by Regulation (EC) No 581/2004, for the tendering period ending on 27 June 2006, the maximum amount of refund for the products referred to in Article 1(1) of that Regulation shall be as shown in the Annex to this Regulation.
Article 2
This Regulation shall enter into force on 30 June 2006.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 29 June 2006.
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COMMISSION REGULATION (EC) No 1833/98 of 25 August 1998 imposing a provisional anti-dumping duty on imports of bicycles originating in Taiwan
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 Union (1), as amended by Regulation (EC) No 905/98 (2), and in particular Article 7 thereof,
After consulting the Advisory Committee,
Whereas:
A. PROCEDURE
(1) On 26 November 1997, the Commission announced by a notice published in the Official Journal of the European Communities (3) the initiation of an anti-dumping proceeding with regard to imports into the Community of bicycles originating in Taiwan and commenced an investigation.
(2) The proceeding was initiated as a result of a complaint lodged in October 1997 by the European Bicycle Manufacturers' Association (EBMA) on behalf of producers representing a major proportion of the Community production of bicycles. The complaint contained evidence of dumping of the said product and of material injury resulting therefrom, which was considered sufficient to justify the initiation of a proceeding.
(3) The Commission officially advised the exporting producers and importers known to be concerned as well as their associations, the representatives of Taiwan and the complainant Community producers about the initiation of the proceeding.
(4) Interested parties were given the opportunity to make their views known in writing and to request a hearing. A number of exporting producers in Taiwan, as well as complainant Community producers, importers, traders and consumer organisations made their views known in writing. All parties who so requested were granted a hearing.
(5) In view of the large number of Community producers expressly supporting the complaint, the Commission decided to make use of sampling techniques and sent questionnaires to and received detailed information from a representative sample of complainant Community producers, as set out in recitals 46 to 47.
(6) In view of the large number of exporting producers in Taiwan, sampling was also used with regard to them and the Commission sent questionnaires to and received detailed information from a representative sample of exporting producers, as set out in recitals 21 to 25.
(7) The Commission also sent questionnaires to importers known to be concerned.
(8) The Commission sought and verified all the information it deemed necessary for the purpose of a preliminary determination of dumping and injury, including the carrying out of verification visits at the premises of the following sampled companies:
(a) Community producers
- Cycleturope International SA., Romilly sur Seine,
- Derby Cycle Werke GmbH, Cloppernberg,
- Kynast AG, Quakenbrück,
- Tunturipyörä OY, Turku,
- Bianchi FIV SPA, Treviglio,
- Batavus BV, Heerenveen,
- Monarch Crescent AB, Varberg,
- BH SA/BIALSA SA, Vitoria,
- Raleigh Industries Ltd, Nottingham;
(b) Exporting producers in Taiwan
- Fritz Jou Manufacturing Co., Ltd, Taichung,
- Giant Manufacturing Co., Ltd, Taichung,
- Merida Industry Co., Ltd, Yuanlin,
- Ming Cycle Industrial Co., Ltd, Taichung,
- Overlord Industries Corp., Tainan;
(c) Related importers in the Community
- Giant Europe B.V, Lelystad,
- Giant Deutschland GmbH, Düsseldorf,
- Giant Holland B.V, Lelystad,
- Merida-Fahrrad-Vertriebs GmbH, Engelskirchen.
(9) The investigation of dumping covered the period from 1 November 1996 to 31 October 1997 (hereinafter referred to as 'the investigation period`). The examination of injury covered the period from 1 January 1994 up to the end of the investigation period.
B. PREVIOUS PROCEEDINGS
(10) In October 1991, an anti-dumping investigation was already initiated against imports of bicycles originating in Taiwan and the People's Republic of China which resulted in the imposition of a definitive anti-dumping duty of 30,6 % against imports from China (4). As the dumping margin for imports of bicycles originating in Taiwan was found to be de minimis, the proceeding concerning these imports was terminated (5).
(11) In April 1996, the Commission initiated an investigation into the circumvention of the anti-dumping duty imposed on imports of bicycles originating in China, as a result of which in January 1997 the Council extended the definitive anti-dumping duty imposed on Chinese bicycles to imports of certain bicycle parts from China (6).
(12) In February 1994, another anti-dumping investigation had been initiated against imports of bicycles originating in Indonesia, Malaysia and Thailand which resulted in the imposition of definitive anti-dumping duties of up to 29,1 % for Indonesia, 39,4 % for Malaysia and 39,2 % for Thailand (7).
C. PRODUCT UNDER CONSIDERATION AND LIKE PRODUCT
1. Product under consideration
(13) The present proceeding, as the previous proceedings mentioned above, covers all types of bicycles and other cycles (including delivery cycles) not motorised, with or without ball bearings (hereinafter referred to as 'bicycles`). The investigation has shown that several hundred models of bicycles produced in Taiwan were sold in both the Taiwanese and the Community markets. Their number depends on the specific features that producers combine in assembling their bicycles. Despite variations stemming from such combinations, it should be noted that all different models of bicycles available on both markets were found to have the same basic physical and technical characteristics and uses.
(14) For the purpose of the analysis carried out in the present investigation, the above defined bicycles were classified in four basic categories, mainly according to their use:
(A) all terrain bicycles or ATB, sometimes also called mountain bicycles or MTB;
(B) trekking, city, hybrid and touring bicycles;
(C) junior action and children's bicycles;
(D) other bicycles (including racing bicycles and all other cycles).
(15) It should be noted that there are no clear dividing lines between the various categories above as they overlap. In a number of cases, one bicycle type can be classified in two or more categories. In other cases, the addition of one or more features could change the classification of a bicycle from one category to another. In addition, consumers will regularly use a bicycle classified in a particular category for a variety of different purposes. They were, therefore, regarded as forming one single product for the purpose of this proceeding.
2. Like product
(16) Due to the high number of models, it is rare that identical models can be found when comparing bicycles produced in Taiwan and exported to the Community, with those produced and sold in Taiwan and with those produced by the Community industry and sold on the Community market. Even though these bicycles are rarely identical, they share the same basic technical and physical characteristics. In any event the investigation has shown that any differences in the product concerned cannot lead to the conclusion that the product produced and sold by the Community industry in the Community market or the product produced by the exporting producers and sold on their domestic market cannot be considered as a like product to the product concerned.
(17) Comments made by Taiwanese exporting producers were rather contradictory as to whether their exports to the Community and bicycles produced and sold by the Community industry were like products.
Some stated that the bicycles they export to the Community were of lower quality than those produced by the Community industry.
Whereas the investigation has confirmed that some bicycles imported from Taiwan are not in the high quality range, it has also revealed that some Community producers were also producing and selling bicycles of the same range.
(18) By contrast, other exporting producers in Taiwan claimed that their bicycles were not interchangeable and therefore not comparable with Community produced ones because of the advanced technology used in their production. As an example it was mentioned that aluminium frame bicycles were hardly ever produced by Community producers, aluminium being considered a high-tech material. Therefore, they claimed that their product is not a like product to the one of the Community industry.
The investigation has shown that Community producers do produce aluminium bicycle frames although in the last few years aluminium frames have been mainly imported from Asian countries such as China because the import price of these frames is lower than the respective cost of production in the Community. Nevertheless, bicycles with aluminium frames are produced by the Community industry.
(19) On the basis of the above information, and in the absence of evidence which would demonstrate that Taiwanese bicycles are not interchangeable and comparable with Community produced ones, the Commission considers the above claims to be unfounded. It is therefore concluded that bicycles produced in Taiwan and sold on its domestic market and bicycles produced and sold by the Community industry on the Community market, and bicycles exported to the Community from Taiwan are like products, in accordance with Article 1(4) of Regulation (EC) No 384/96 (hereinafter referred to as the 'Basic Regulation`).
D. SAMPLING OF EXPORTING PRODUCERS IN TAIWAN
1. General
(20) In view of the large number of exporting producers in Taiwan, the Commission decided to apply sampling techniques in accordance with Article 17 of the Basic Regulation.
In order to enable the Commission to select a sample, exporting producers were, pursuant to Article 17(2) of the Basic Regulation, requested to make themselves known within three weeks of the initiation of the proceeding and to provide basic information on their export and domestic sales, the stages of production performed and the names and activities of all related companies in the bicycle sector. The authorities of Taiwan were in this context also contacted by the Commission.
2. Pre-selection of the sample
(21) 37 companies in Taiwan came forward and provided the requested information within the time period set. However, only 31 of them were exporting producers, the rest being traders. Those companies, which sold for export own produced bicycles to the Community during the investigation period and expressed a wish to participate in the sample, were considered as cooperating and were taken into account in the selection of the sample. They represented around 85 % of total import volume from Taiwan into the Community.
(22) The cooperating companies which were not finally retained in the sample, were informed that any anti-dumping duty on their exports would be calculated in accordance with the provisions of Article 9(6) of the Basic Regulation.
(23) Companies which did not make themselves known within the time period set were considered as non cooperating companies.
3. Selection of the sample
(24) The choice of the sample was made in agreement with the exporting producers and their association concerned. The Taiwanese authorities were kept informed. The five companies selected in the sample and which fully cooperated with the investigation were attributed their own dumping margin and individual duty rate.
(25) The Commission also selected a reserve company which, though having to reply to the questionnaire, would only be investigated in the event that companies in the main sample would subsequently refuse to cooperate. This company was also informed that any anti-dumping duty on its exports would be calculated in accordance with the provisions of Article 9(6) of the Basic Regulation, unless it was selected to replace a company in the original sample in which case it would have its own dumping margin and individual duty rate.
4. Individual examination of companies not selected in the sample
(26) The Commission received from two companies not selected in the sample requests for individual examination. However, both requests were not accompanied by a reply to the questionnaire within the deadline set for this purpose, as required by Article 17(3) of the Basic Regulation. Therefore, the requests were rejected and the companies in question were informed accordingly.
E. DUMPING
1. Normal value
(a) Global representativeness
(27) In accordance with Article 2(2) of the Basic Regulation, the Commission first examined whether the domestic sales of bicycles by each exporting producer were representative, i.e. whether the total volume of such sales was greater than or equal to 5 % of the total volume of the corresponding export sales to the Community.
This assessment revealed that three exporting producers had representative sales of bicycles on the domestic market during the investigation period. Two exporting producers had minor domestic sales which were less than 5 % of the corresponding export sales to the Community. For these two exporting producers normal value was constructed in accordance with Article 2(3) of the Basic Regulation.
(b) Product type comparability
(28) As in previous anti-dumping proceedings concerning bicycles, the Commission found that the comparison of domestic and export models of bicycles was extremely difficult due to the existence of a considerable variety of combinations of features. Under these conditions and in order to avoid numerous adjustments, most of which would have had to be based on estimations, it was provisionally decided to establish normal value for the three exporting producers with representative domestic sales on the basis of constructed values in accordance with Article 2(3) of the Basic Regulation. The use of constructed value, relying on production costs of the exported models, takes account of all combinations of features mentioned above.
(c) Normal value based on constructed value
(29) The constructed value was determined by adding to the manufacturing cost of the exported models of each exporting producer, a reasonable amount for selling, general and administrative expenses (hereinafter referred to as 'SG & A`) and a reasonable amount for profit.
(30) The Commission subsequently examined whether the domestic sales of each of the three exporting producers with representative domestic sales could be considered as being made in the ordinary course of trade pursuant to Article 2(4) of the Basic Regulation.
It was found that all three exporting producers in question had sold during the investigation period more than 20 % but less than 90 % of their sales in the domestic market at a loss, i.e. at prices below manufacturing cost plus SG & A. Therefore, it was considered that in establishing constructed normal value the weighted average profit released by each of the three exporting producers on their profitable domestic sales only should be used.
(31) For the three exporting producers with representative domestic sales the amount for SG & A and profit used were those respectively incurred and realised by these companies. For the two exporting producers without representative domestic sales, the weighted average of the actual amounts for SG & A and profit determined for the three exporting producers with representative domestic sales were used in accordance with Article 2(6)(a) of the Basic Regulation.
2. Export price
(32) In general, sales of bicycles made by the exporting producers selected in the sample on the Community market were made to independent customers. Consequently the export price was established by reference to the prices actually paid or payable in accordance with Article 2(8) of the Basic Regulation.
(33) Two exporting producers sold significant volumes of bicycles in the Community market through related importers located in different Member States. For these transactions the export price was constructed on the basis of the price at which the imported products were first resold to an independent buyer in accordance with Article 2(9) of the Basic Regulation. In constructing the export price, the Commission took account of all costs, including duties and taxes, incurred between importation and resale to the first independent buyer and of profits normally accruing, so that a reliable export price could be established at the Community frontier level. The profits used were established on the basis of information obtained from co-operating unrelated importers.
3. Comparison
(34) For the purpose of ensuring a fair comparison between normal value and export price, due allowances in the form of adjustments were made where applicable and justified for differences affecting price comparability in accordance with Article 2(10) of the Basic Regulation.
Adjustments were made for differences in discounts, rebates, transport, handling, loading and ancillary costs, ocean freight, ocean freight, ocean insurance, credit, after-sales costs, commissions and, as described in detail below, for differences in levels of trade.
(35) Four exporting producers requested an adjustment to normal value for differences in levels of trade including differences arising in OEM (original equipment manufacturer) sales.
The investigation has shown that exporting producers confused export sales to OEM customers with sales of non-branded products to distributors and that the requested adjustment referred to sales of non-branded versus branded products rather than to OEM sales versus sales through other channels.
(36) The Commission first examined whether such an adjustment could be granted under Article 2(10)(d)(i) of the Basic Regulation. Only two of the exporting producers who requested such an adjustment had representative domestic sales.
One company, with representative domestic sales which requested a level of trade adjustment, had domestic sales of branded products made to distributors and retailers and exports of branded and non-branded products made to distributors. The company based its request on an overall difference in prices between domestic sales to distributors and to retailers. However, the company failed to show any consistent and distinct difference in functions and prices of the seller for the different levels of trade in the domestic market as required under Article 2(10)(d)(i) of the Basic Regulation. Therefore, the adjustment for differences in levels of trade, as requested, was not considered justified as far as it was based on the ground that export sales were made to distributors while domestic sales were made to both distributors and retailers, without consistent and distinct difference in functions and prices.
(37) The other company with representative domestic sales claimed that the relevant levels of trade were absent in the domestic market.
This company had only sold branded products in the domestic market mainly to retailers and had made exports of branded and non-branded products to distributors. The company quantified the alleged differences in levels of trade by claiming an adjustment corresponding to the expenses incurred in the domestic market for advertising, sales promotion, warehousing and sales/marketing personnel salaries. It should be noted that adjustments claimed on the basis of the abovementioned expenses are not by themselves sufficient to justify differences in functions related to the particular levels of trade. Therefore, no adjustment could be made on this basis.
(38) The investigation showed however, that one exporting producer, who had not requested a level of trade adjustment, sold only non-branded products both to distributors in the domestic market and to distributors in the export market. The existence of the same level of trade in the domestic market for non-branded products, as in the export market, allowed the Commission to quantify an adjustment for level of trade pursuant to Article 2(10)(d)(i) of the Basic Regulation. The amount of the adjustment was based on the difference between the gross margin realised by the company with domestic sales of non-branded products to distributors and the gross margins realised by the other companies with representative domestic sales of branded products. For the companies without representative domestic sales, the amount of the adjustment was based on the average adjustment granted to the companies with representative domestic sales. This was because in the construction of normal value for the companies without representative domestic sales, the SG & A and the profits of the companies with representative domestic sales were used.
4. Dumping margins
(a) Methodology
(39) The weighted average constructed normal value by model, as determined in recitals 29 to 31 above, was compared on an ex-factory basis with the weighted average export price by model, as determined in recitals 32 and 33 above.
(b) Dumping margins for companies in the sample
(40) The comparison, as described in recitals 34 to 39 above, showed the existence of dumping in respect of all companies which fully cooperated in the investigation. The dumping margins thus established vary and, therefore, the Commission calculated a weighted average dumping margin for each exporting producer. The provisional dumping margins expressed as a percentage of the cif import price at the Community frontier duty unpaid are the following:
TABLE
.
(c) Dumping margin for cooperating companies not in the sample
(41) Cooperating companies not selected in the sample (see recitals 22, 25 and 26 above) were attributed the average dumping margin of the companies in the sample, weighted on the basis of their export volume to the Community. Expressed as a percentage of the cif import price at the Community frontier duty unpaid, this provisional dumping margin is 5,4 %.
(d) Dumping margin for non-cooperating companies
(42) For non-cooperating companies a dumping margin was determined on the basis of the facts available in accordance with Article 18 of the Basic Regulation. Since the level of cooperation was high (see recital 21 above), it is considered appropriate to set the dumping margin for non-cooperating companies at the level of the highest dumping margin established for a company in the sample. Indeed, it would constitute a bonus for non-cooperation and encourage circumvention to assume that the dumping margin attributable to non-cooperating export producers is lower than that found for a cooperating export producer.
This provisional dumping margin expressed as a percentage of the cif import price at the Community frontier duty unpaid, is therefore 18,2 %.
F. COMMUNITY INDUSTRY
1. Representativeness
(43) Before the initiation of the investigation and in order to confirm the necessary support for the complaint, the Commission requested all known producers in the Community to submit basic information as to their respective production volume and to clarify their position with regard to the complaint lodged. Community producers representing around 60 % of the total Community production expressly supported this complaint.
(44) By virtue of Article 4(1) of the Basic Regulation, the Commission investigated whether or not producers supporting the complaint, who themselves imported some of the allegedly dumped bicycles from Taiwan, should be excluded from the determination of Community production.
It was found that those imports were relatively small in relation to the total production in the Community of the said producers and that their core interests were thus considered to be in the Community. It was established that the limited imports made by the said producers were a defensive reaction against low priced imports from Taiwan and not made because these producers were not able to produce the types of bicycles imported. On this basis, it was decided that such producers should not be excluded in determining the Community production. Data relating to these imports were disregarded when the injury factors pertinent to the situation of the Community industry were established.
(45) It follows that in accordance with Articles 4(1) and 5(4) of the Basic Regulation the Community producers supporting the complaint constitute the Community industry as their collective output represents a major proportion of total Community production (hereinafter referred to as the 'Community industry`).
2. Sampling and selection of the sample
(46) In view of the large number of Community producers expressly supporting the complaint, the investigation into the situation of the Community industry as such was, by using sampling, limited to a reasonable number of parties belonging to this industry. In accordance with the provisions of Article 17 of the Basic Regulation, the Commission selected a sample of Community producers (hereinafter referred to as 'the sample`) covering a representative variety of company sizes, integration of production and product mix, as well as a large volume of production. For the selection, account was also taken of the importance of imports of Taiwanese bicycles in the various Member States with the aim of covering as large a part as possible of the whole Community territory.
Such sample, selected from a significantly larger group of complaining companies, is therefore considered to be representative of the Community industry.
(47) Questionnaires were sent to 12 Community producers of which 10 were originally intended to be part of the sample and two were considered as reserves.
Due to the bad situation in the bicycle business in the Community, one of the selected producers had to close down and another, who was close to bankruptcy, was obliged to completely reorganize its activities in January 1997 and was thus not in a position to complete the Commission questionnaire. One relatively small producer who was also in the process of internal restructuring did not have sufficient staff to allow them to cooperate with the Commission.
As the remaining nine companies, including those initially selected as reserves, were considered to constitute still a representative sample of the Community industry (around 40 % of its total volume of operations in eight Member States), it was not considered necessary to include any other companies in the sample.
G. INJURY
(48) The injury situation of the Community industry has been assessed on the basis of two categories of information.
The first category of information relates to global injury indicators such as consumption, imports as well as Community industry's sales, market share, production, capacity, capacity utilisation and employment. These data were collected from the Member States, the national bicycle associations, the complaining Community producers and from the Community wide databases (Comext and Eurostat). As far as data stemming from the complaining companies are concerned, they were cross-checked, as far as possible, at the level of the national bicycle associations and Member States.
The second category of information relates to certain performance-related injury indicators, i.e. profitability, prices and their evolution, price undercutting and price underselling. They were collected at the level of individual Community producers in the sample.
1. Consumption in the Community
(49) For the purpose of the present investigation, total consumption in the Community was established on the basis of the total sales made by complainant and non-complainant Community producers and assemblers of bicycles in the Community market and total imports of bicycles into the Community.
From 1994 to the investigation period consumption in the Community decreased by 16 % in terms of volume and by 11 % in terms of value.
2. Imports of dumped bicycles from Taiwan
(a) Volume, value and relative market share of Taiwanese imports
(50) On the basis of the statistics available, between 1994 and the investigation period, the volume of imports of bicycles originating in Taiwan increased by 25 % and their value increased by 1 %. This indicates a negative average trend in the import price. The main increases in volume occurred in 1996 (+286 000 units) and during the investigation period (+261 000 units). The increase in Taiwanese imports fully covers the slight improvement in consumption between 1996 and the investigation period as well as the decreases in imports from China (-63 000 units), after the imposition of anti-dumping measures at the end of 1993, and in imports from Malaysia, Indonesia and Thailand (-496 000 units), after measures were imposed at the end of 1995.
(51) Analysis of the data collected at the level of the sampled Taiwanese exporters showed that 60 % of imports are MTB (category A), 13 % are city, trekking or hybrid bicycles (category B), 23 % are children's bicycles (category C) and 4 % are all other types of bicycles (category D).
(52) During the whole period under analysis, market share increased by 50 % in terms of volume and by 14 % in terms of value, i.e. from 11,7 % to 17,5 % and from 10,8 % to 12,3 % respectively. The evolution of Taiwanese imports indicates that their market share in terms of volume is linked to the degree of decrease in their average prices indicated below. Indeed, in 1995, when import prices decreased by 8 %, the market share of the imports in terms of volume increased by 6 %. In 1996, when import prices decreased by 9 %, as compared to 1995, the market share increased by 30 %. During the investigation period, when import prices decreased by another 2 %, as compared to 1996, the market share of the imports increased by 14 %.
(b) Average import price of bicycles from Taiwan
(53) On the basis of Eurostat information available, the development of the average import price for all Taiwanese imports from 1994 to the investigation period indicates a significant decrease of 19 % at the end of the investigation period. This import price decrease has been confirmed by the detailed analysis of the sampled Taiwanese companies' sales prices over this time period.
Based on the replies to the Commission's questionnaire received from the sampled Taiwanese exporting producers, from 1995 up to the investigation period the average sales prices for bicycles sold to independent customers decreased by 13 % confirming the negative trend in import prices during the whole period under examination.
(c) Price undercutting
(54) The investigation has shown that sales of Taiwanese bicycles in the Community market were made:
- either directly to unrelated customers (distributors, wholesalers, department stores, etc.), or
- indirectly via related sales companies which subsequently sold to the same kind of customers including retailers.
Sales were made both of branded and non-branded products. In the latter case, American or European brand names were given to bicycles made in Taiwan.
The investigation has shown that similar types of sales to similar types of customers were also made by the sampled Community producers, namely distributors, wholesalers, department stores and retailers.
(55) As far as the product under investigation itself is concerned, detailed specifications were requested in the questionnaires sent to both sampled Community producers and sampled Taiwanese exporters. On the basis of such information, the Commission was in a position to identify the similar or comparable models produced and sold by both Community and Taiwanese producers in the Community market and thus carried out the price comparison exercice on a model by model basis.
The information collected during the investigation confirmed that when the main features of a bicycle are of a similar aspect and/or of comparable quality, the possible variations in the other minor features are not such as to substantially differentiate between one bicycle and another. The main features are considered to be the frame and fork, the gearing system, namely including the front and rear derailleur, the freewheel and the number of sprockets, and the braking system.
(56) On this basis, around 100 different models representing around 600 000 units sold in the Community market, namely over 60 % of the sales made by the sampled Taiwanese exporters, could be directly compared with Community produced bicycles. In order to evaluate any possible price undercutting, prices of comparable bicycles were compared under similar sales conditions. Any differences in sales conditions or levels of trade having a direct impact on price comparison were considered and where necessary Taiwanese exporters' sales prices were adjusted accordingly, based on the evidence available.
(57) The price comparison showed that for the investigation period price undercutting margins, expressed as a percentage of the relative Community industry's sales price, range from 11,6 % to 28,7 % depending on the sampled Taiwanese exporter and were found to be 15 % on average.
3. Situation of the Community industry
(a) Production
(58) From 1994 up to the investigation period, Community industry production decreased by 20 %. That poor performance indicates that this industry was facing difficulties during the period under examination. The investigation has revealed that the decrease in production was the result of several bankruptcies and company closures in the Community due to the prevailing difficult situation in the market. Several Community producers, in order to survive, switched from the complete cycle of production into assembling or sub-assembling operations, importing the main bicycles parts (frame, fork, handle bars etc.) from countries such as Taiwan, China, India.
(59) Analysis of the production figures showed that in 1994 production of category A bicycles, i.e. MTBs, was the main production segment and accounted for 45,8 % of total Community production. During the investigation period a switch occurred. Production in category B (trekking, city, hybrid bicycles) increased and became the most important segment of production of the Community industry. Between 1994 up to the investigation period, the loss in production mainly occurred in category A where the decrease was over 1,5 million units. Production in children's bicycles also decreased but the share in the mix of production did not change much.
(b) Capacity and capacity utilisation of the Community industry
(60) As far as production is concerned, the bicycle activity in Europe can be considered as a seasonal activity. Basically, in most of the Member States the season starts in March and finishes in September each year. Bicycle collections for the next season are presented in September to the business professionals (dealers, agents, retailers etc.). This implies that production is very intensive during certain months of the year (January to March), capacity utilisation peaks at around 85 %, and in other months (June, July and December) capacity is below 40 %. Even though the shifts are extended and temporary personnel may be employed, the Community producers' require a high capacity as it should be sufficient enough to meet the demand during the peak months. This explains, to a certain extent, why the average rate of capacity utilisation is rather low.
(61) From 1994 to the investigation period, due to the same reasons as those responsible for the decrease in production as well as the restructuring undertaken by certain Community producers, the Community industry's capacity was significantly reduced by 18 %.
(62) Nowadays there are three major groups in the Community market holding around 28 % of the whole Community-wide market share (8). However, contrary to the allegation made by some Taiwanese exporters and some importers, this does not constitute a risk of a monopolistic situation being created in the Community market. Indeed, there is a large number of independent producers.
(63) Despite the cut in capacity of 18 %, the capacity utilisation rate was 58 % in 1994 and decreased by 3 % during the entire period under examination indicating a reduced level of activity by the Community industry. Taking into account the actual situation of the bicycle business in Europe, it is considered that a rate of utilisation of around 70 % would be necessary in this type of industry to produce positive effects in costs and profitability.
(c) Stocks
(64) In 1994, the volume in stocks represented between six to nine weeks' delivery whereas it only represented four to seven weeks during the investigation period. Several factors such as the restructuring of the production activities operated by certain Community producers and the necessity to change the marketing strategy for meeting the requirements of the market while limiting the risks in production, can explain this trend. On the other hand, the fact that the bicycle business is a seasonal activity in the Community implies that a certain level of stocks should always be kept available in order to meet the expected or unexpected requirements of the market. The investigation has shown that the need for stock has changed over the last few years. The bicycle market has become more fashion-driven and customers do not order large quantities in advance. This mainly explains why stocks could decrease.
(d) Sales in the Community market
(65) From 1994 to the investigation period, sales volume made by the Community industry in the Community market to unrelated customers decreased by 22 % (around 1,4 million units). As in production, the decreases occurred in category A (MTB) and C (children's bicycles). MTBs sold to independent customers decreased from 3,5 million units in 1994 to 2,1 million during the investigation period. 1,9 million children's bicycles were sold in 1994, but only 1,5 million during the investigation period.
(66) Sales value decreased by 14 %, namely less than the decrease in sales volume, indicating that average sales prices developed positively. However, from 1996 to the investigation period, both the volume and value of sales decreased by 2 %.
(e) Average sales price and price evolution
(67) Between 1994 and the investigation period, the development in sales prices was positive. The increase in average sales prices also reflects a change in the product mix (see recital 60 above). Being faced with extensive competition from dumped imports from Taiwan, especially in the low and medium segments of the MTB market, the Community industry concentrated on higher range products and on certain categories of bicycles.
(68) Indeed, price analyses carried out in specific Member States and separately for each category of bicycle have shown that the trend in sales price was less favourable in Member States such as the United Kingdom, France and Germany, where most imports came from Taiwan.
(69) In addition, the price evolution on a category-per-category basis for homogeneous models has shown that average prices decreased from 5 to 15 % in category A depending on the Member State, whereas prices developed more favourably for the categories where imports from Taiwan were more limited (categories B and D).
(f) Profitability
(70) The average return on sales made by the sampled Community producers for the product concerned has been negative from 1995 up to the investigation period. From a minor positive result in 1994, profitability has become negative despite the efforts made by the sampled Community producers to restructure and reduce costs. In this respect, production capacity was reduced and people had to be laid off. The investigation has shown that even though average sales prices increased sales volume dropped considerably (-22 %) between 1994 and the investigation period.
(g) Market share
(71) The trend in market share shows that the Community industry continually lost shares of the market, in particular to the benefit of Taiwanese imports. Between 1994 and the investigation period, the Community industry lost 7 % of the share of the market measured in volume and 4 % of the market measured in value. In terms of volume the above decrease in market share represents a loss of over 450 000 units in sales. In 1995, the market share increased by 4 % but then continued to decrease until the end of the investigation period. In terms of value the evolution of the market share followed the same trend as in terms of volume.
(h) Investments
(72) Direct investments were mainly made in machinery with the aim of increasing efficiency and automation in the production process. The investigation has shown that investments in the bicycle business were very limited (around 2 % of the net turnover made with unrelated customers in the Community). Consumption has been decreasing and the actual capacity of the Community producers taken alone is large enough to cover 80 % of the total Community consumption during the investigation period. There is therefore no need to invest in order to increase production capacity given the situation in the market.
(i) Employment
(73) The number of personnel employed decreased by 15 %. Over 2 400 people were laid off during the whole period under examination.
4. Conclusion on injury
(74) The imposition of anti-dumping duties on dumped imported bicycles originating in China, Malaysia, Thailand and Indonesia allowed a substantial decrease in these dumped imports into the Community and restored fair trade conditions in the market. This should have led to a recovery in the situation of the Community industry in 1994 and 1996.
(75) Despite these positive effects on the Community market, from 1994 to the investigation period, the main injury indicators related to the Community industry, namely production, capacity and capacity utilisation, sales in terms of volume and value, market share, profitability, employment and investments decreased.
Production decreased by 20 % and capacity utilisation by 3 % despite reduced production capacity (-18 %). Sales volume decreased by 22 % and sales value by 14 %. During that period of time 4 % of the value and 7 % of the volume of the market were lost. Profitability remained negative despite restructuring efforts, the level of investment decreased by 11 % and employment was reduced by 15 %.
(76) The analysis within the period under examination indicated that despite a positive development in consumption between 1996 and the investigation period and despite anti-dumping duties imposed on Malaysia, Indonesia and Thailand, the Community industry's production decreased by 3 % and sales volume by 2 %. As a result the additional losses in market share both in volume (-3 %) and value terms (-2 %) prevented any improvement of the situation in that industry. Profitability remained negative and financial losses added to those already made in the past.
(77) In view of the negative developments of the above injury indicators during the whole period under examination, it is considered that this industry has suffered material injury within the meaning of Article 3 of the Basic Regulation.
H. CAUSATION
1. Introduction
(78) In order to reach its conclusions on the cause of the injury suffered by the Community industry, the Commission examined the impact of other known factors and their consequences on the situation in that industry. Such analysis ensures that any injury caused by these latter factors is not attributed to the dumped imports.
Other known factors such as the development of consumption, the other imports of bicycles into the Community, competition from other Community producers in the market and the export performances of the Community industry, are analysed below.
2. Dumped imports from Taiwan
(79) Available information has shown that imports of Taiwanese bicycles into the Community, throughout the period, were very high. In 1994 over 2 million units, namely over 39 % of total imports, were imported from Taiwan. At the end of the investigation period, after the considerable drop in imports from other countries, Taiwan became the major importer, covering 55 % of all imports into the Community. In actual terms, from 1994 up to the end of the investigation period, imports of bicycles from Taiwan increased by 25 % in terms of volume and by 1 % in terms of value. The average sales prices of Taiwanese bicycles in the Community market decreased on average by 19 %. As a consequence of the above, during that period of time the market share held by Taiwanese exporters increased by 50 % in terms of volume and by 14 % in terms of value.
(80) At the same time, as indicated above, an overall worsening of the situation of the Community was found with major decreases in production (-20 %), sales volume (-22 %), sales value (-14 %), resulting in a negative profitability since 1995.
(81) In order to further show the causal link between the increasing volume of low-priced, dumped Taiwanese imports and the deterioration of the situation of the Community industry, an analysis within the various categories of bicycles has been made. This analysis has shown that the major loss in the Community industry's production volume occurred in the mountain bicycle segment (category A). This segment constitutes about 60 % of total imports from Taiwan. From 1994 to the investigation period, the investigation has shown that the Community industry had to cut its mountain bicycle production by 38 %, representing a loss in sales of 1,4 million units largely covered by Taiwanese imports.
(82) In addition, it was also established that bicycles imported from Taiwan and those produced in the Community are like products, offered through similar sales channels in the Community market. Furthermore, the market is transparent and the low prices offered for Taiwanese bicycles are well known to all bicycle professionals in the Community market. From 1994 to the investigation period, it was found that prices charged by Taiwanese exporters in the Community market had decreased by 19 %. In these circumstances the mere presence of the high volume of dumped low-priced bicycles imported from Taiwan must have had a significant impact on that market.
(83) The analysis of the Community industry's price evolution also showed that average sales prices of mountain bicycles decreased by 12 % in those Community Member States where imports of Taiwanese bicycles were concentrated, namely the United Kingdom, France and Germany. On the other hand, price evolution in categories B and D, where imports from Taiwan were limited to 13 % and 4 % respectively, were less negative. Despite the above finding on the reduction of prices by the Community industry, imports from Taiwan were still found to significantly undercut sales prices of the Community industry. As shown in recital 57, undercutting margins were calculated at a level ranging from 11,6 % to 28,7 %.
3. Impact of other factors
(a) Development of consumption
(84) From 1994 to the investigation period, consumption in the Community market decreased by 16 % in volume terms and by 11 % in value terms indicating a downturn in the bicycle business. An analysis of the development of the volume of consumption indicates that the main decrease (-17 %) occurred between 1994 and 1996 and that the trend became positive between 1996 and the investigation period (+1 %).
(85) During the time period, Community industry's sales volume decreased by 20 % and sales value by 12 %, namely more than the actual decrease in consumption, which was translated into a loss of market share. Overall, although sales prices developed positively, sales prices of mountain bicycles (MTBs), which is the main type of bicycles imported from Taiwan, decreased significantly in the Member States where Taiwanese imports are mainly present.
(86) From 1996 up to the investigation period, the volume of imports from Taiwan increased again by 12 %, but relative value increased only by 7 %. Sales prices further decreased by 2 % and the market share increased by 14 % in terms of volume and 9 % in terms of value. The above performances were thus reached when the volume of consumption increased only slightly.
(b) Imports of bicycles from countries other than Taiwan
(87) Total imports of bicycles into the Community from countries other than Taiwan decreased by 32 % in terms of volume and by 20 % in terms of value. The number of bicycles imported into the Community decreased by over 1 million units. The fact that the decrease in volume is higher than that in value indicates that the trend in average sales prices was largely positive during the period under examination.
(88) The main decrease in these imports took place in the years 1995 and 1996 following the negative development in consumption. The share lost by these countries is however higher than the decrease in consumption. Import volumes and value recovered somewhat between 1996 and the investigation period following the positive trend in consumption at that particular period of time.
(89) During the period under examination, imports from countries subject to anti-dumping duties (China, Indonesia, Malaysia and Thailand) significantly decreased and imports from China practically disappeared.
(90) After the major decrease in dumped imports from China, Malaysia, Indonesia, and Thailand during the period under examination, Poland, the Czech Republic, India and the USA became the major exporters of bicycles to the Community. Imports from these countries cover around 25 % of all the other imports into the Community or 70 % of imports when excluding those from Taiwan. The fact that imports from these countries increased by 77 000 units during the whole period under examination, whereas imports from Taiwan increased by over 545 000 units indicates that the impact of the volume of these imports was very limited as compared to the impact of Taiwan. Moreover, an analysis of the development in the indicative import price of these imports reveals that they did not add weight to the pressure exerted on prices in the Community, the information available showing an average price increase.
(c) Other producers in the Community
(91) In 1996, other producers in the Community represented around 40 % of total Community production. Even though they did not expressly support the complaint, none of them expressly opposed it.
(92) From 1994 to the investigation period, these non-complaining producers lost 16 % of production, 14 % of sales volume and 6 % of sales value. Although their market share increased by 2 % in terms of volume and 5 % in terms of value during that period, they did however incur net losses in sales volume (- 695 000 units) and in production (- 837 000 units). This demonstrates that they were also suffering injury and were facing difficulties similar to those of the Community industry.
(93) Some exporters and importers of dumped Taiwanese bicycles claimed that injury in the Community is to a substantial extent caused by the behaviour of non-participating Italian producers present in the major Community Member States. It was stated that these producers' prices were very low and that they were undercutting prices in the Community market.
(94) Again, the Commission was not provided with conclusive evidence that the behaviour of some producers in the Community might have been such as to injure the rest of the industry. It was therefore not possible to assess the impact of any such alleged behaviour on the Community industry. Furthermore, the available information indicates that between 1994 and 1996, production in Italy decreased by over 1,6 million units. This decrease represents over 60 % of the total loss in production incurred by all the producers in the Community during the whole period under examination.
(95) Rather than causing injury to the Community industry, it appears that Italian producers not supporting the complaint themselves have suffered injury during the period under examination. The allegation made by the above parties is therefore rejected.
(d) Export activity and other activities of the Community industry
(96) Exports to third countries have always represented a minor activity for the Community industry. From 1994 up to the investigation period, they represented around 2 % of total sales with a minor decrease toward the end of this period. The general downturn in the bicycle business, combined with the fact that the main European exporting companies are more and more supplying the export markets with local production can explain to a certain extent the drop in exports from the Community industry. The minor decrease in export sales, however, can certainly not justify or explain the material injury suffered by the Community industry. In any event the negative development of the injury indicators sales, sales prices, market share and profitability cannot be explained by any change in the export activity of the Community industry, as these indicators were all established for the activity of the Community industry in the Community alone.
(97) Operators in the Community market claimed that the other business activities of some complainant Community producers, have been extremely difficult over the last few years, one particular company having lost 50 % of its export business. This resulted in high losses and therefore in injury, which cannot be attributed to Taiwanese exports.
(98) As far as this claim is concerned, it should first be recalled that there are only a limited number of Community producers having a substantial activity other than producing and selling bicycles. Two of them are included in the sample of Community producers. The above situation concerns only one Community producer in particular.
(99) In an anti-dumping investigation, the Commission exclusively analyses injury indicators referring to the activity related to the product concerned in the Community. As a result, the possible impact of items generated by another activity, not related or linked to the product concerned, are systematically excluded from the findings of the investigation. It follows that the findings leading to the conclusion that the Community industry was suffering material injury relate only to the bicycle activity and that therefore the above claim is irrelevant.
4. Conclusion on causation
(100) It cannot be excluded that factors other than dumped imports from Taiwan, in particular the decrease in consumption, contributed to the difficult state of the Community industry. However, the substantial increase in import volume from Taiwan, the increase in market share, the considerable degree of price decreases and price undercutting by these imports had material negative consequences on the situation of the Community industry at a time when a positive development could be expected after the imposition of anti-dumping measures on imports from China as well as Indonesia, Malaysia and Thailand. It was therefore concluded that these imports, taken in isolation, have caused material injury to the Community industry and injury caused by other factors was not such as to break this causal link.
I. COMMUNITY INTEREST
1. Preliminary remarks
(101) The purpose of anti-dumping measures is to remedy dumped imports having an injurious effect on a Community industry. This should result in the re-establishment of a situation of effective competition on the Community market.
Having reached a positive conclusion on dumping, injury and the cause of this injury, the Commission examined whether any compelling reasons existed which would have led to the conclusion that it is not in the Community interest to impose measures in this particular case. For this purpose, and pursuant to Article 21(1) of the Basic Regulation, the impact of possible measures on all parties involved in the proceeding and also the consequences of taking or not taking measures were considered on the basis of the evidence available at the provisional stage.
(102) It should also be recalled that in the anti-dumping proceedings concerning imports of bicycles originating in China, and in Malaysia, Indonesia and Thailand, under similar conditions, it was considered to be in the interest of the Community to impose anti-dumping measures.
2. Interest of the Community industry and related activity
(103) In general, the interest of an industry is that effective competitive conditions are restored and that prices reflecting fair trading conditions are quoted in the market. Since 1988, Community bicycle manufacturers, mostly made up of small and medium-sized enterprises, are facing competition from dumped imports. This has led to a serious degree of vulnerability in the industry, as a result of which rationalisation and restructuring efforts are still going on today demonstrating the industry's adaptability, competitiveness and viability.
(104) With anti-dumping measures in force and an expected positive development in consumption, employment, which decreased by over 2 400 people during the whole period under examination, would also be preserved. With an average anti-dumping duty of 6,5 % imposed on bicycles imported from Taiwan, the Community industry could complete its restructuring and recover financially, thus benefiting from the re-establishing of effective competition in the market.
(105) In view of the material injury suffered over the last few years, it is highly probable that, in the absence of any measures to correct the negative effects of dumped imports from Taiwan, its precarious financial situation will deteriorate further. This may ultimately lead to further company bankruptcies or closures in the market and therefore jeopardise thousands of other jobs all over the Community. The above negative consequences for the bicycle industry would be amplified due to repercussions in the European parts industry and other activities linked to the bicycle business.
3. Interest of importers in the Community
(106) On the basis of the information received from the administrations in Member States, a considerable number of importers are importing bicycles into the Community but it has not been possible to identify how many were directly concerned by this proceeding.
(107) In order to evaluate the impact on importers of taking measures or not taking measures, the Commission sent questionnaires to the known importers in the Community. A sample of importers may be selected after the publication of the provisional findings and on-the-spot investigations may take place in order to verify the information submitted.
(108) Some importers not known to the Commission made themselves known within the time limit, requested a questionnaire and submitted a reply. Certain importers also submitted written comments on the proceeding. Out of the 64 importers who replied to the Commission's questionnaire or submitted information to the Commission only six replies were considered to be meaningful in order to assess the impact of anti-dumping measures on their activities.
(109) They commented on the dynamic effect of the innovation stemming from Taiwanese exporting producers on the Community market and on the negative effects of anti-dumping measures on their business in general, on employment and on the final choice of consumers.
(110) The imposition of anti-dumping measures will not put importers of Taiwanese bicycles in a disadvantageous position as compared to other importers of bicycles in the Community. It will simply correct the distorting effects of injurious dumping and restore fair trade competition conditions among all the operators in the Community.
(111) On the basis of the meaningful information made available by some importers, it is considered that an average anti-dumping duty of 6,5 % on bicycles imported from Taiwan may cause an increase of around 3,3 % in the overall cost of sales of the importers. This extra cost, or at least part of this cost, could be charged to the subsequent purchasers, namely wholesalers or retailers already enjoying relatively high profit margins on the resale price of Taiwanese bicycles in the Community. The Commission therefore considers that the level of the measures proposed is not such as to prevent importers from importing Taiwanese bicycles so that these bicycles will always be present in the Community market.
(112) Based on the foregoing, it is considered that any negative effects on importers of taking measures against imports from Taiwan cannot outweigh the positive effects of taking measures for the other operators in the Community.
4. Interest of consumers
(113) The Commission received comments from consumers' associations in the Community indicating these associations' concerns that sales prices of Taiwanese bicycles may increase as a result of the imposition of anti-dumping measures. A claim was also made as to the need for consumers to preserve a wide choice when buying a bicycle.
(114) As has already been mentioned above, the level of the measures proposed is not such as to foreclose the Community market to Taiwanese bicycles and the consumer's choice will always be preserved. In addition, as far as a possible sales price increase is concerned, it should be mentioned that Taiwanese bicycles are not imported directly by consumers. Bicycles pass through one or more levels of trade before they are offered to the public. The import price on which anti-dumping duties will be levied represents on average 40 % of the total resale price of the bicycle. Considering an average anti-dumping duty of 6,5 % on imports of bicycles from Taiwan, the direct impact, if any, of the duties on the resale price to the consumer is already limited to 2,6 %.
(115) However, it should be borne in mind that with effective trade conditions restored in the Community market, competition will continue to have beneficial effects for the consumer as far as the price level is concerned. Moreover, given the high number of competitors in the market, it is considered that price increases, if any, should not be automatic. They should depend on competition and consumer behaviour. It is considered likely that importers, wholesalers, retailers and other operators selling Taiwanese bicycles may also decide, if justified, to decrease their relative profit margins so that no price increase will occur in the resale price of Taiwanese bicycles to consumers.
5. Consequences on competition in the Community market
(116) Some parties claimed that anti-dumping measures may encourage the creation of a monopolistic situation, in the Community market as big groups such as Derby, Cycleurope and Atag, increased in size by purchasing smaller companies.
(117) There is a high number of producers in exporting countries such as USA, Turkey, Poland, the Czech Republic, India and Taiwan exporting to the Community and there is a large number of operators and a large number of producers in the Community. Therefore, there is no risk of creating a monopolistic situation in the bicycle market.
(118) Moreover, the level of the measures proposed is not such as, from an economic point of view, to foreclose the Community market to the Taiwanese exporting producers and therefore it will ensure the continued presence of their products in the market. Measures, therefore, ensure that effective competition conditions for all the operators in the market be restored and that this would stimulate the presence of competitive forces in the market.
6. Conclusion on the Community interest
(119) Having examined the various interests involved in the present proceeding, no compelling reasons were found to exist not to impose anti-dumping measures. On the contrary, the imposition of anti-dumping measures is necessary to prevent further aggravation of the injury already suffered by the Community industry and to preserve employment in the business.
(120) The Commission also considers that the imposition of provisional measures in the present case will re-establish effective competition conditions for all operators in the Community. Consumers' choice will not be unduly affected and they will continue to enjoy the presence of a high number of competitors in the market preventing any unjustified increase in the resale prices.
J. PROVISIONAL DUTY
(121) In order to prevent further injury being caused by the dumped imports concerned before the end of the investigation, provisional anti-dumping measures should be adopted. These measures should take the form of a provisional anti-dumping duty. Given the wide variety of bicycles exported from Taiwan, an ad valorem duty was considered the most appropriate form of measure.
For the purpose of establishing the level of the provisional duty, account was taken of the level of dumping found and the amount of duty necessary to eliminate the injury suffered by the Community industry.
(122) It was considered that the amount of duty necessary to remove the effects of injurious dumping should allow the Community industry to cover its costs of production and obtain a reasonable profit on sales. In this respect it was found that a profit margin of 8 % on turnover could be considered to be an appropriate basis, regard being given to the need for long-term investments allowing a continuous product development, etc. It was also considered that the Community industry could reasonably expect such a rate of return in the absence of injurious dumping.
(123) Accordingly, injury margins were determined on a model-by-model basis as the difference between the cost of production of the Community industry, increased by the abovementioned profit margin on the one hand, and the actual net sales price of the comparable imported models used for the undercutting calculation on the other hand. This difference was then expressed as a percentage of the cif import price at the Community frontier customs duty unpaid.
(124) Since for all exporting producers in the sample the dumping margin has been found to be lower than the injury margin, the provisional duty to be imposed should correspond to the dumping margin established, in conformity with Article 7(2) of the Basis Regulation.
(125) The provisional anti-dumping duty for companies which cooperated in the investigation but were not included in the sample equals the average dumping margin for the sample, weighted on the basis of export volume to the Community. This was lower than the amount of duty necessary to eliminate the injury in all cases. The provisional anti-dumping duty for non-cooperating companies is based on the dumping margin calculated for those companies as explained in recital 42 because the amount of duty necessary to eliminate the injury exceeded in all cases the dumping margin established.
K. FINAL PROVISIONS
(126) In the interest of sound administration, a period should be fixed in which the parties concerned should make known their views in writing and request a hearing. Furthermore, it should be stated that all findings made for the purpose of this Regulation are provisional and may have to be reconsidered for the purpose of any definitive duty which the Commission may propose.
HAS ADOPTED THIS REGULATION:
Article 1
1. A provisional anti-dumping duty is hereby imposed on importers of bicycles and other cycles (including delivery tricycles), not motorised, with or without ball bearings, falling within CN codes 8712 00 10, 8712 00 30 and 8712 00 80, originating in Taiwan.
2. The rate of the provisional anti-dumping duty applicable to the net, free-at-Community-frontier price, before duty, shall, subject to paragraphs 3 and 4, be 18,2 % (TARIC additional code 8900).
3. Products manufactured and sold for export by the exporting producers listed in the Annex shall be subject to a provisional anti-dumping duty rate of 5,4 % (TARIC additional code 8548).
4. Products manufactured and sold for export by the companies listed below shall be subject to the following provisional anti-dumping duty rates.
TABLE
5. Unless otherwise specified, the provisions in force concerning customs duties shall apply.
6. The release for free circulation in the Community of the product referred to in paragraph 1 shall be subject to the provision of a security, equivalent to the amount of the provisional duty.
Article 2
Pursuant to Article 20(1) of Regulation (EC) No 384/96, the parties concerned may make their views known in writing and apply to be heard orally by the Commission within 15 days of the date of entry into force of this Regulation.
Pursuant to Article 21(4) of Regulation (EC) No 384/96, the parties concerned may comment on the application of this Regulation within one month of the date of its entry into force.
Article 3
This Regulation shall enter into force on the day of its publication in the Official Journal of the European Communities.
Article 1 of this Regulation shall apply for a period of six months.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 25 August 1998.
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*****
COMMISSION DECISION
of 4 May 1988
amending for the second time Decision 83/73/EEC on the establishment of a buffer zone in the region of Evros (Greece) and a financial contribution by the Community to measures to combat foot-and-mouth disease in that region
(Only the Greek text is authentic)
(88/308/EEC)
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Economic Community,
Having regard to Council Decision 77/97/EEC of 21 December 1976 on the financing by the Community of certain emergency measures in the field of animal health (1), as last amended by Regulation (EEC) No 3768/85 (2), and in particular Article 2 thereof,
Whereas, by Decision 83/73/EEC (3), as amended by Decision 85/224/EEC (4), the Commission made provision for a financial contribution by the Community to measures taken by Greece in a buffer zone in the region of Evros to combat foot-and-mouth disease; whereas the contribution was restricted to expenditure incurred by Greece from 1983 until 1987;
Whereas the situation regarding foot-and-mouth disease in certain regions of south-eastern Europe and the Middle East necessitates the continuation of the measures taken by Greece for a further period; whereas the danger of exotic strains of foot-and-mouth disease spreading in Greece and in the other Member States persists;
Whereas the conditions for a financial contribution by the Community are met; whereas in order to be completely effective, this contribution should amount to the maximum authorized by Decision 77/97/EEC;
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
Article 2 of Decision 83/73/EEC is hereby replaced by the following:
'Article 2
The Community shall make a contribution of:
- 100 % of expenditure incurred by Greece in 1983, 1984, 1985, 1986, 1987, 1988 and 1989 in buying foot-and-mouth vaccine to be used in the buffer zone referred to in Article 1,
- 50 % of expenditure incurred by Greece in 1983, 1984, 1985, 1986, 1987, 1988 and 1989 in carrying out foot-and-mouth disease vaccination in the buffer zone referred to in Article 1.
This contribution shall be granted after submission of documentary evidence and a detailed report on the vaccination campaign.'
Article 2
This Decision is addressed to the Hellenic Republic.
Done at Brussels, 4 May 1988.
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Commission Regulation (EC) No 1212/2001
of 20 June 2001
altering the export refunds on white sugar and raw sugar exported in the natural state
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Council Regulation (EC) No 2038/1999 of 13 September 1999 on the common organisation of the markets in the sugar sector(1), as amended by Commission Regulation (EC) No 1527/2000(2), and in particular the third subparagraph of Article 18(5) thereof,
Whereas:
(1) The refunds on white sugar and raw sugar exported in the natural state were fixed by Commission Regulation (EC) No 1156/2001(3).
(2) It follows from applying the detailed rules contained in Regulation (EC) No 1156/2001 to the information known to the Commission that the export refunds at present in force should be altered to the amounts set out in the Annex hereto,
HAS ADOPTED THIS REGULATION:
Article 1
The export refunds on the products listed in Article 1(1)(a) of Regulation (EC) No 2038/1999, undenatured and exported in the natural state, as fixed in the Annex to Regulation (EC) No 1156/2001 are hereby altered to the amounts shown in the Annex hereto.
Article 2
This Regulation shall enter into force on 21 June 2001.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 20 June 2001.
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COMMISSION DECISION
of 3 June 2005
on a Community financial contribution towards Member States’ fisheries control, inspection and surveillance programmes for 2005
(notified under document number C(2005) 1630)
(2005/424/EC)
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Council Decision 2004/465/EC of 29 April 2004 on a Community financial contribution towards Member States fisheries control programmes (1), and in particular Article 6(1) thereof,
Whereas:
(1)
Member States have forwarded to the Commission their fisheries control programme for 2005 together with the applications for a Community financial contribution towards the expenditure to be incurred in carrying out the projects contained in such programme.
(2)
Applications concerning actions listed in Article 4 of Decision 2004/465/EC may qualify for Community funding.
(3)
It is appropriate to fix the maximum amounts and the rate of the Community financial contribution and to lay down the conditions under which such contribution may be granted.
(4)
In order to qualify for the contribution, electronic localisation devices should satisfy the requirements fixed by Commission Regulation (EC) No 2244/2003 of 18 December 2003 laying down detailed provisions regarding satellite-based Vessel Monitoring Systems (2).
(5)
In order to qualify for the contribution, pilot projects should satisfy the conditions set out in Commission Regulation (EC) No 1461/2003 of 18 August 2003 laying down conditions for pilot projects for the electronic transmission of information on fishing activities and for remote sensing (3).
(6)
Member States must in accordance with Article 8 of Decision 2004/465/EC commit their expenditure within a period of 12 months from the end of the year in which the present Decision is notified to them. They must also comply with the provisions of Decision 2004/465/EC as regards starting their projects and submitting applications for reimbursement.
(7)
The measures provided for in this Decision are in accordance with the opinion of the Committee for Fisheries and Aquaculture,
HAS ADOPTED THIS DECISION:
Article 1
Subject matter
This Decision provides for a Community financial contribution towards actions referred to in Article 4 of Decision 2004/465/EC for 2005. It establishes the amount of the Community financial contribution for each Member State, the rate of the Community financial contribution and the conditions on which such contribution may be granted.
Article 2
New technologies and IT networks
Expenditure incurred on the purchase of, installation and technical assistance for, computer technology and setting up of IT networks in order to allow efficient and secure data exchange in connection with monitoring, control and surveillance of fisheries activities, shall qualify for a financial contribution of 50 % of the eligible expenditure within the limits laid down in Annex I.
Article 3
Electronic localisation devices
1. Expenditure incurred in the purchase and fitting on board of fishing vessels of electronic localisation devices enabling vessels to be monitored at a distance by a fisheries monitoring centre through a vessel monitoring system (VMS) shall qualify for a maximum financial contribution of EUR 4 500 per vessel within the limits established in Annex II.
2. Within the EUR 4 500 limit provided for in paragraph 1, the financial contribution for the first EUR 1 500 of eligible expenditure shall be at a rate of 100 %.
3. The financial contribution for eligible expenditure comprised between EUR 1 500 and EUR 4 500 per vessel shall amount to a maximum of 50 % of such expenditure.
4. In order to qualify, electronic localisation devices shall satisfy the requirements fixed by Regulation (EC) No 2244/2003.
Article 4
Pilot projects on new technologies
1. Expenditure incurred in pilot projects relating to the implementation of new technologies to improve the monitoring of fisheries activities shall qualify for a financial contribution of 50 % of the eligible expenditure within the limits laid down in Annex III.
2. In order to qualify, pilot projects shall satisfy the conditions set out in Regulation (EC) No 1461/2003.
Article 5
Training
Expenditure incurred on training and exchange programmes of civil servants responsible for monitoring control and surveillance tasks in the fisheries area shall qualify for a financial contribution of 50 % of the eligible expenditure within the limits laid down in Annex IV.
Article 6
Seminars and media tools
Expenditure incurred in initiatives including seminar and media tools aimed at enhancing awareness among fishermen and other players such as inspectors, public prosecutors and judges, as well as among the general public on the need to fight irresponsible and illegal fishing and on the implementation of Common fisheries policy rules, shall qualify for a financial contribution of 75 % of the eligible expenditure within the limits laid down in Annex V.
Article 7
Fisheries patrol vessels and aircraft
Expenditure related to the purchase and modernisation of vessels and aircraft used for inspection and surveillance of fishing activities by the competent authorities of the Member States shall qualify, within the limits laid down in Annex VI, for a financial contribution not exceeding:
-
50 % of the eligible expenditure incurred by Member States which acceded to the European Union on 1 May 2004,
-
25 % of the eligible expenditure incurred by other Member States.
Article 8
This Decision is addressed to the Member States.
Done at Brussels, 3 June 2005.
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COMMISSION REGULATION (EC) No 1443/95 of 26 June 1995 determining, for the 1995 marketing year, the estimated loss of income and the estimated level of the premium payable per ewe and per female goat and fixing the first advance payment for this premium and an advance payment of the specific aid for sheep and goat farming in certain less favoured areas of the Community
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Council Regulation (EEC) No 3013/89 of 25 September 1989 on the common organization of the market in sheepmeat and goatmeat (1), as last amended by Council Regulation (EC) No 1265/95 (2), and in particular Article 5 (6) thereof,
Having regard to Regulation (EEC) No 1601/92 of 15 June 1992 concerning specific measures for the Canary Islands with regard to certain agricultural products (3), as amended by Regulation (EC) No 3290/94 (4), and in particular Article 13 thereof,
Having regard to Council Regulation (EEC) No 3813/92 of 28 December 1992, relating to the unit of account and the conversion rates to be applied for the purposes of the common agricultural policy (5), as last amended by Regulation (EC) No 150/95 (6), and in particular Article 6 thereof,
Whereas Article 5 (1) and (5) of Regulation (EEC) No 3013/89 provides for the grant of a premium to compensate for any loss of income sustained by producers of sheepmeat and, in certain areas, of goatmeat; whereas those areas are defined in Annex I to Regulation (EEC) No 3013/89 and in Article 1 of Commission Regulation (EEC) No 1065/86 of 11 April 1986 determining the mountain areas in which the premium for goatmeat is granted (7), as amended by Regulation (EEC) No 3519/86 (8);
Whereas, pursuant to Article 5 (6) of Regulation (EEC) No 3013/89 and to enable an advance payment to be made to sheepmeat and goatmeat producers, the foreseeable loss of income should be estimated in the light of the foreseeable trend in market prices;
Whereas, pursuant to Article 5 (2) of Regulation (EEC) No 3013/89, the amount of the premium per ewe for producers of heavy lambs is obtained by multiplying the loss of income referred to in the second subparagraph of paragraph 1 of that Article by a coefficient expressing the annual average production of heavy lamb meat per ewe producing these lambs expressed per 100 kilograms of carcase weight; whereas the coefficient for 1995 has not yet been fixed in view of the lack of full Community statistics; whereas, pending the fixing of that coefficient, a provisional coefficient should be used; whereas Article 5 (2) of that Regulation also fixes the amount per ewe for producers of light lambs and per female of the caprine species and at 80 % of the premium per ewe for producers of heavy lambs;
Whereas, pursuant to Article 8 of Regulation (EEC) No 3013/89, the premium must be reduced by the impact on the basic price of the coefficient provided for in paragraph 2 of that Article; whereas that coefficient is fixed by Article 8 (4) at 7 %;
Whereas, in accordance with Article 5 (6) of Regulation (EEC) No 3013/89, the half-yearly advance payment is fixed at 30 % of the expected premium; whereas, in accordance with Article 4 (3) of Commission Regulation (EEC) No 2700/93 (9), as last amended by Regulation (EC) No 279/94 (10), the advance payment is to be paid only if it is equal to or greater than ECU 1;
Whereas, for the advance payments, due to the agrimonetary changes which occurred on 1 February 1995 and in order to simplify administrative management, it is appropriate to apply, by derogation from Article 6 of Regulation (EEC) No 2700/93, the agricultural conversion rate valid on the above-mentioned date;
Whereas, under Council Regulation (EEC) No 1323/90 of 14 May 1990 (11), as last amended by Regulation (EEC) No 363/93 (12), the Council instituted specific aid for sheep and goat farming in certain less-favoured areas of the Community; whereas it lays down that the aid is to be granted under the same conditions as those for the grant of the premium for producers of sheepmeat and goatmeat; whereas, in view of the expected difficult market situation in certain Member States during the second half of 1995, the Member States should be authorized, for the 1995 marketing year, to pay immediately an amount equal to 90 % of the aid;
Whereas Regulation (EEC) No 1601/92 provides for the application of specific measures relating to agricultural production in the Canary Islands; whereas those measures entail the grant of a supplement to the ewe premium to producers of light lambs and she-goats on the same conditions as those governing the grant of the premium referred to in Article 5 of Regulation (EEC) No 3013/89; whereas those conditions provide that Spain is authorized to pay an advance on the said supplementary premium;
Whereas the measures provided for in this Regulation are in accordance with the opinion of the Management Committee for Sheep and Goats,
HAS ADOPTED THIS REGULATION:
Article 1
A difference is hereby estimated between the basic price, reduced by the impact of the coefficient laid down in Article 8 (4) of Regulation (EEC) No 3013/89, and the foreseeable market price during 1995 is ECU 162,785 per 100 kg.
Article 2
1. The estimated amount of the premium payable per ewe is as follows:
- producers of heavy lambs: ECU 26,046,
- producers of light lambs: ECU 20,837.
2. Pursuant to Article 5 (6) of Regulation (EEC) No 3013/89, the first advance that the Member States are authorized to pay to producers shall be as follows:
- producers of heavy lambs: ECU 7,814 per lamb,
- producers of light lambs: ECU 6,251 per lamb.
Article 3
1. The estimated amount of the premium payable per female of the caprine species in the areas designated in Annex I to Regulation (EEC) No 3013/89 and in Article 1 of Regulation (EEC) No 1065/86: ECU 20,837.
2. Pursuant to Article 5 (6) of Regulation (EEC) No 3013/89, the first advance which the Member States are authorized to pay to goatmeat producers located in the areas designated in paragraph 1 shall be as follows: ECU 6,251 per female of the caprine species.
Article 4
By derogation from Article 6 of Regulation (EEC) No 2700/93 the advances of the ewe and she-goat premium for the 1995 marketing year are to be converted at the agricultural conversion rate valid on 1 February 1995.
Article 5
The advance of the specific aid which the Member States are authorized to pay to producers of sheepmeat and goatmeat in less-favoured areas pursuant to Article 1 (1) of Regulation (EEC) No 1323/90, within the meaning of Council Directive 75/268/EEC (13), shall be as follows:
- ECU 5,977 per ewe in the case of the producers referred to in Article 5 (2) and (4) of the said Regulation,
- ECU 4,130 per ewe in the case of the producers referred to in Article 5 (3) of the said Regulation,
- ECU 4,130 per ewe in the case of the producers referred to in Article 5 (5) of the said Regulation.
Article 6
Pursuant to Article 13 (3) of Regulation (EEC) No 1601/92, the first advance on the supplementary premium for the 1995 marketing year for producers of light lambs and she-goats in the Canary Islands within the limits provided for in Article 1 (1) of Council Regulation (EEC) No 3493/90 (14) shall be as follows:
- ECU 3,410 per ewe in the case of producers referred to in Article 5 (3) of that Regulation,
- ECU 3,410 per ewe in the case of producers referred to in Article 5 (5) of that Regulation.
Article 7
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, 26 June 1995.
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Commission Regulation (EC) No 548/2003
of 27 March 2003
authorising transfers between the quantitative limits of textiles and clothing products originating in the People's Republic of China
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Council Regulation (EEC) No 3030/93 of 12 October 1993 on common rules for imports of certain textile products from third countries(1), as last amended by Regulation (EC) No 138/2003(2), and in particular Article 7 thereof,
Whereas:
(1) Article 5 of the Agreement between the European Economic Community and the People's Republic of China on trade in textile products(3), initialled on 9 December 1988 and approved by Council Decision 90/647/EEC, as last amended and extended by an Agreement in the form of an Exchange of Letters, initialled on 19 May 2000 and approved by Council Decision 2000/787/EC(4), provides that transfers may be made between quota years. Those flexibility provisions were notified to the Textiles Monitoring Body of the World Trade Organisation following China's accession to it.
(2) On 20 February 2003 the People's Republic of China submitted a request for transfers of quantities from the quota year 2003 to the quota year 2002.
(3) The transfers requested by the People's Republic of China fall within the limits of the flexibility provisions referred to in Article 5 of the Agreement between the European Economic Community and the People's Republic of China on trade in textiles products as set out in Annex VIII to Regulation (EEC) No 3030/93.
(4) It is appropriate to grant the request.
(5) It is desirable for this Regulation to enter into force on the day after its publication in order to allow operators to benefit from it as soon as possible.
(6) The measures provided for in this Regulation are in accordance with the opinion of the Textile Committee set up by Article 17 of Regulation (EEC) No 3030/93,
HAS ADOPTED THIS REGULATION:
Article 1
Transfers between the quantitative limits for textile goods originating in the People's Republic of China fixed by the Agreement between the European Community and the People's Republic of China on trade in textile products are authorised for the quota year 2002 in accordance with 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 REGULATION (EEC) No 2135/84
of 25 July 1984
amending for the 10th time Regulation (EEC) No 1393/76 laying down detailed rules for the importation of products in the wine-growing sector originating in certain third countries
THE COMMISSION OF THE EUROPEAN
COMMUNITIES,
Having regard to the Treaty establishing the European Economic Community,
Having regard to Council Regulation (EEC) No 337/79 of 5 February 1979 on the common organization of the market in wine (1), as last amended by Regulation (EEC) No 1208/84 (2), and in particular Article 18 (7) thereof,
Having regard to Council Regulation No 129 on the value of the unit of account and the exchange rates to be applied for the purposes of the common agricultural policy (3), as last amended by Regulation (EEC) No 2543/73 (4), and in particular Article 3 thereof,
Having regard to the opinion of the Monetary Committee,
Whereas pursuant to Article 1a (3) of Commission Regulation (EEC) No 1393/76 (5), as last amended by Regulation (EEC) No 3104/80 (6), special rates are used to convert into national currency the free-at-frontier reference prices for imported liqueur wines; whereas the same Article lays down that, for currencies other than those which are maintained, at any given moment, within a maximum spread of 2,25 %, the special rates must be adjusted at least twice a year on fixed dates, one of which must coincide with the beginning of the price system applicable in the wine-growing sector; whereas Regulation (EEC) No 337/79, as amended by Regulation (EEC) No 1595/83 (7), lays down that the price system shall apply for the same period as the marketing year, which begins on 1 September every year and ends on 31 August the following year;
Whereas Article 1a (3) (a) and (b) of Regulation (EEC) No 1393/76 should therefore be amended in a manner which brings it into line with the amendments made to Regulation (EEC) No 337/79;
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
Article 1a (3) (a) and (b) of Regulation (EEC) No 1393/76 is hereby replaced by the following:
'3. For currencies other than those referred to in paragraph 2, the special rate:
(a) shall be fixed with effect from 1 September and 1 March each year;
(b) shall be equal to the conversion rate in relation to all the currencies referred to in paragraph 2 resulting from the average rate taken into consideration for the purpose of calculating the monetary compensatory amounts valid, as regards the special rate taking effect on:
- 1 September: on 1 August of the current year,
- 1 March: on 1 February of the current year.'
Article 2
This Regulation shall enter into force on 1 September 1984.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 25 July 1984.
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COMMISSION REGULATION (EEC) No 2831/91 of 26 September 1991 suspending advance fixing of export refunds on certain cereals exported in the form of pasta products
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Economic Community,
Having regard to Council Regulation (EEC) No 2727/75 of 29 October 1975 on the common organization of the market in cereals (1), as last amended by Regulation (EEC) No 3577/90 (2), and in particular the second paragraph of Article 16 (7) thereof,
Having regard to Council Regulation (EEC) No 3035/80 of 11 November 1980 laying down general rules for granting export refunds on certain agricultural products exported in the form of goods not covered by Annex II to the Treaty, and the criteria for fixing the amount of such refunds (3), as last amended by Regulation (EEC) No 3381/90 (4), and in particular the second subparagraph of Article 5 (3) thereof,
Whereas Article 18 (7) of Regulation (EEC) No 2727/75 and Article 5 (3) of Regulation (EEC) No 3035/80 make provision for advance fixing of the refund to be suspended for basic products exported in the form of certain goods;
Whereas the situation on certain markets may make it necessary for the refunds on certain products to be adjusted; whereas in order to prevent applications for advance fixing of refunds for speculative purposes, the abovementioned advance fixing should be suspended until this adjustment comes into force,
HAS ADOPTED THIS REGULATION:
Article 1
Advance fixing of export refunds on durum and common wheat, meslin, wheat or meslin flour, durum and common wheat groats and meal, exported in the form of pasta products falling within CN codes 1902 11 and 1902 19 destined for the United States of America, is suspended up to 30 September 1991.
Article 2
This Regulation shall enter into force on 27 September 1991. This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 26 September 1991.
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*****
COMMISSION DECISION
of 29 January 1982
approving an outline programme to improve public amenities in certain less-favoured agricultural areas of the Federal Republic of Germany under Council Regulation (EEC) No 1938/81
(Only the German text is authentic)
(82/107/EEC)
THE COMMISSION OF THE EUROPEAN
COMMUNITIES,
Having regard to the Treaty establishing the European Economic Community,
Having regard to Council Regulation (EEC) No 1938/81 of 30 June 1981 on a common measure to improve public amenities in certain less-favoured agricultural areas of the Federal Republic of Germany (1), and in particular Article 5 thereof,
Whereas, pursuant to Article 4 of Regulation (EEC) No 1938/81, on 2 October 1981 the Government of the Federal Republic of Germany communicated the outline programme to improve public amenities in certain less-favoured agricultural areas of the Federal Republic of Germany, and on 4 December 1981 provided additional details;
Whereas the said outline programme covers the improvement of public services pursuant to Article 2 of Regulation (EEC) No 1938/81 in the less-favoured areas of the Federal Republic of Germany listed in Article 1 (2);
Whereas the said programme contains adequate details and measures in accordance with Article 3 of Regulation (EEC) No 1938/81 showing that the objectives referred to in Article 1 of that Regulation can be achieved and that the conditions laid down therein are satisfied; whereas the scheduled time for implementation of the programme does not exceed the limit referred to in Article 3 (c);
Whereas the measures provided for in this Decision are in accordance with the opinion of the Standing Committee on Agricultural Structure,
HAS ADOPTED THIS DECISION:
Article 1
The outline programme to improve public amenities in certain less-favoured agricultural areas of the Federal Republic of Germany, pursuant to Article 4 of Regulation (EEC) No 1938/81, communicated by the Government of the Federal Republic of Germany on 2 October 1981 and supplemented on 4 December 1981 is hereby approved.
Article 2
This Decision is addressed to the Federal Republic of Germany.
Done at Brussels, 29 January 1982.
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COMMISSION DECISION of 13 July 1994 amending Annex I (13) 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 (94/466/EC)
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Council Directive 91/118/EEC of 17 December 1982 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 the second paragraph of Article 15 thereof,
Whereas, given the experience gained during the application of the measures provided for, the conditions under which game trophies are traded and imported should be amended; whereas, therefore, Annex I (13) to the above Directive should be reworded;
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
Chapter 13, Annex I to Directive 92/118/EEC is hereby replaced by the Annex to this Decision.
Article 2
This Decision shall enter into force on 1 December 1994.
Article 3
This Decision is addressed to the Member States.
Done at Brussels, 13 July 1994.
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Commission Decision
of 23 January 2001
amending Decision 97/296/EC drawing up the list of third countries from which the import of fishery products is authorised for human consumption
(notified under document number C(2001) 128)
(Text with EEA relevance)
(2001/66/EC)
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Council Decision 95/408/EC of 22 of June 1995(1) on the conditions for drawing up, for an interim period, provisional lists of third country establishments from which Member States are authorised to import certain products of animal origin, fishery products or live bivalve molluscs, as amended by Decision 2000/4/EC(2), and in particular Article 2(2) thereof,
Whereas:
(1) Council Directive 96/23/EC, of 29 April 1996 on measures to monitor certain substances and residues thereof in live animals and animal products and repealing Directives 85/358/EEC and 86/469/EEC(3), provides that aquaculture products shall be included in the monitoring plan for residues of veterinary drugs.
(2) Furthermore, the Annex of Commission Decision 2000/159/EC of 8 February 2000 on the provisional approval of residue plants of third countries according to Council Directive 96/23/EC(4), as last amended by Commission Decision 2000/675/EC(5), indicates the third countries which have submitted a plan, setting out the guarantees which it offers as regards the monitoring of the groups of residues and substances referred to in Annex I of Directive 96/23/EC.
(3) Consequently, when the guarantees referred to in recital 2 are not provided, the imports of aquaculture products shall not be authorised, even if they are in compliance with the Council Directive 91/493/EC of 22 July 1991 laying down the health conditions for the production and the placing on the market of fishery products(6), as last amended by Directive 97/79/EC(7).
(4) Since Commission Decision 97/296/EC(8), as amended by Decision 2001/40/EC(9), lists the countries and territories from which importation of fishery products for human consumption is authorised, it is necessary to modify this Decision to include the requirement that the import of aquaculture products shall only be authorised from those third countries listed in both Decisions: 97/296/EC and 2000/159/EC.
(5) However, as Commission Decision 95/328/EC of 25 July 1995 establishing health certification for fishery products from third countries which are not yet covered by a specific decision(10), as last amended by Decision 2001/67/EC(11), provides a transitional period for the up-dating of the model of health certification, it is necessary to provide a derogation in the application of the Decision 2000/159/EC for aquaculture products, during this transitional period.
(6) The measures provided for in this Decision are in accordance with the opinion of the Standing Veterinary Committee,
HAS ADOPTED THIS DECISION:
Article 1
Decision 97/296/EC is amended as follows:
1. A new point 3 is added to Article 2:
"3. In addition to paragraph 1, Member States shall ensure that aquaculture products, as defined in Article 2.2 of Council Directive 91/493/EEC, in whatever form intended for human consumption, are imported only from the third countries which are included in the Annex to the present Decision and in the Annex to the Commission Decision 2000/159/EC as a country with an approved residues monitoring plan for aquaculture."
2. Article 3 shall be replaced by the following:
"Article 3
Notwithstanding Commission Decision 2000/159/EC and Article 2.3 of the present Decision Member States, when importing fishery products from countries listed in part II of the Annex to the present Decision and up to the date of coming into effect of the model of health certificate provided by the Commission Decision 2001/67/EC(12), shall accept the consignments of fishery products accompanied by the model of health certificate provided by Decision 95/328/EC."
Article 2
This Decision is addressed to the Member States.
Done at Brussels, 23 January 2001.
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COUNCIL REGULATION (EC) No 85/2009
of 19 January 2009
amending Regulation (EC) No 1083/2006 laying down general provisions on the European Regional Development Fund, the European Social Fund and the Cohesion Fund concerning certain provisions relating to financial management
THE COUNCIL OF THE EUROPEAN UNION,
Having regard to the Treaty establishing the European Community, and in particular Article 161 third subparagraph thereof,
Having regard to the proposal from the Commission,
Having regard to the assent of the European Parliament,
Having regard to the opinion of the European Economic and Social Committee,
Having regard to the opinion of the Committee of the Regions,
Whereas:
(1)
The unprecedented crisis hitting international financial markets has brought about major challenges for the Community, which necessitates a rapid response in order to counter effects on the economy as a whole and, in particular, to support investments in order to promote growth and employment.
(2)
The regulatory framework for the 2007-2013 programming period has been adopted with a view to achieving further simplification in the programming and management of the European Regional Development Fund, the European Social Fund and the Cohesion Fund, their effectiveness and subsidiarity in terms of their implementation.
(3)
The adaptation of certain provisions of Council Regulation (EC) No 1083/2006 of 11 July 2006 laying down general provisions on the European Regional Development Fund, the European Social Fund and the Cohesion Fund (1) is necessary in order to facilitate the mobilisation of Community financial resources for the start-up of operational programmes and assisted projects within the framework of these programmes in such a manner as to accelerate implementation and the impact of such investments on the economy.
(4)
It is necessary to strengthen the possibility of provision by the European Investment Bank (EIB) and the European Investment Fund (EIF) of assistance to Member States in the preparation and implementation of operational programmes.
(5)
Taking account of the status of the EIB and EIF as financial entities recognised by the Treaty, when financial engineering operations are organised involving them as holding funds, it should be possible to directly award them a contract.
(6)
In order to facilitate the use of financial engineering instruments, notably within the field of sustainable urban development, it is necessary to provide for the possibility of in-kind contributions being considered as eligible expenditure in the constitution of, or contributions to, funds.
(7)
In order to support enterprises, and in particular small and medium-sized enterprises, it is also necessary to make more flexible the conditions governing the payment of advances within the framework of State aids under Article 87 of the Treaty.
(8)
In order to accelerate the implementation of major projects, it is necessary to allow expenditures relating to major projects which have not yet been adopted by the Commission to be included in expenditure declarations.
(9)
To bolster the financial resources of Member States thus facilitating the rapid start-up of operational programmes in a crisis context, it is necessary to amend the provisions concerning pre-financing.
(10)
The payment of a payment on account at the beginning of operational programmes should allow a regular cash flow and facilitate payments to beneficiaries during programme implementation. For this reason provisions should be established for such payments on account for the Structural Funds: 7,5 % (for Member States of the European Union as constituted before 1 May 2004) and 9 % (for the Member States that acceded to the European Union on or after 1 May 2004) in order to accelerate the implementation of operational programmes.
(11)
By reason of the principles of equality of treatment and of legal security, the amendments relating to Articles 56(2) and 78(1) should apply during the whole 2007-2013 programming period. Retroactive application is therefore necessary with effect from 1 August 2006, the date on which Regulation (EC) No 1083/2006 came into force. As the unprecedented crisis affecting international financial markets necessitates a rapid response in order to counter effects on the economy as a whole, other amendments should enter into force on the day following its publication in the Official Journal of the European Union.
(12)
Regulation (EC) No 1083/2006 should therefore be amended,
HAS ADOPTED THIS REGULATION:
Article 1
Regulation (EC) No 1083/2006 is hereby amended as follows:
1.
in Article 44, the second paragraph shall be amended as follows:
(a)
point (b) shall be replaced by the following:
‘(b)
when the agreement is not a public service contract within the meaning of applicable public procurement law, the award of a grant, defined for this purpose as a direct financial contribution by way of donation to a financial institution without a call for proposals, if this is in accordance with a national law compatible with the Treaty;’;
(b)
the following point (c) shall be added:
‘(c)
the award of a contract directly to the EIB or the EIF.’;
2.
in Article 46(1), the following second subparagraph shall be added:
‘The EIB or the EIF may, upon request of the Member States, take part in technical assistance activities referred to in the first subparagraph.’;
3.
Article 56(2) shall be replaced by the following:
‘2. By way of derogation from paragraph 1, contributions in kind, depreciation costs and overheads may be considered as incurred expenditure by beneficiaries for the implementation of operations under the conditions laid down in the third subparagraph of this paragraph.
By way of derogation from paragraph 1, contributions in kind, as regards financial engineering instruments as defined in Article 78(6), first subparagraph, can be treated as expenditure paid at the constitution of the funds or holding funds or contributing to those funds or holding funds, under the conditions established in the third subparagraph of this paragraph.
Expenditure mentioned in the first and second subparagraphs must fulfil the following conditions:
(a)
the eligibility rules drawn up on the basis of paragraph 4 foresee the eligibility of such expenditure;
(b)
the amount of the expenditure is duly justified by supporting documents having equivalent probative value to invoices, without prejudice to provisions set out in specific Regulations;
(c)
in the case of contributions in kind, the co-financing from the Funds does not exceed the total of eligible expenditure, excluding the value of such contributions.’;
4.
Article 78 shall be amended as follows:
(a)
the last sentence of the first subparagraph of Article 78(1) shall be replaced by the following:
‘Expenditure paid by beneficiaries shall be supported by receipted invoices or accounting documents of equivalent probative value, unless otherwise provided in specific Regulations for each Fund.’;
(b)
in Article 78(2) point (b) shall be deleted;
(c)
Article 78(4) shall be replaced by the following:
‘4. When, in application of Article 41(3), the Commission refuses to make a financial contribution to a major project, the expenditure declaration following the adoption of the Commission decision must be rectified accordingly.’;
5.
in Article 82(1), second subparagraph, points (a), (b) and (c) shall be replaced by the following:
‘(a)
for Member States of the European Union as constituted before 1 May 2004: in 2007 2 % of the contribution from the Structural Funds to the operational programme, in 2008 3 % of the contribution from the Structural Funds to the operational programme, and in 2009 2,5 % of the contribution from the Structural Funds to the operational programme;
(b)
for Member States that acceded to the European Union on or after 1 May 2004: in 2007 2 % of the contribution from the Structural Funds to the operational programme, in 2008 3 % of the contribution from the Structural Funds to the operational programme and in 2009 4 % of the contribution from the Structural Funds to the operational programme;
(c)
if the operational programme falls under the European territorial cooperation objective and at least one of the participants is a Member State that acceded to the European Union on or after 1 May 2004, in 2007 2 % of the contribution from the ERDF to the operational programme, in 2008 3 % of the contribution from the ERDF to the operational programme and in 2009 4 % of the contribution from the ERDF to the operational programme.’.
Article 2
This Regulation shall enter into force on the day following its publication in the Official Journal of the European Union.
However, Article 1(3) and Article 1(4)(a) shall apply from 1 August 2006.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 19 January 2009.
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COUNCIL DECISION of 8 October 1990 on the procedure concerning derogations from the rules of origin set out in Protocol No 1 to the Fourth ACP-EEC Convention (90/523/EEC)
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 Fourth ACP-EEC Convention was signed at Lomé on 15 December 1989;
Whereas Article 2 of Decision 2/90 of the ACP-EEC Council of Ministers of 27 February 1990 on transitional measures to be applied from 1 March 1990 (1) lays down that Protocol No 1 to the Convention applies from 1 March 1990; whereas Article 31 of the said Protocol provides that requests of the ACP States for derogations from the rules of origin of the same Protocol shall be deemed to have been accepted if the Community does not inform the ACP States of the position on the requests within 60 working days from their receipt by the EEC Co-Chairman of the ACP-EEC Customs Cooperation Committee, set up by Article 30 of Protocol No 1;
Whereas the appropriate procedure ensuring timely decision-making by the Community in this field is procedure II, variant (b) laid down in Article 2 of Council Decision 87/373/EEC of 13 July 1987 laying down the procedures for the exercise of implementing powers conferred on the Commission (2);
Whereas it is therefore necessary to adopt a procedure ensuring that the Community position can be adopted and communicated to the ACP States within the period of 60 working days;
Whereas Regulation (EEC, Euratom) No 1182/711 (3) lays down the rules applicable to periods, dates and terms,
HAS DECIDED AS FOLLOWS:
Article 1
The common position of the Community with regard to a request presented by the ACP States for derogation from the rules of origin laid down in Protocol No 1 to the ACP-EEC Convention shall be adopted by the Commission in accordance with the procedure laid down in Article 2.
Article 2
The representative of the Commission shall submit to the Committee on Origin set up by Council Regulation (EEC) No 802/68 of 27 June 1968 on the common definition of the concept of the origin of goods (4) as last amended by Regulation (EEC) No 1769/89 (5), hereafter referred to as the 'Committe', a draft common position within 20 working days after the receipt of a request for derogation by the EEC Co-Chairman of the EEC-ACP Customs Cooperation Committee. The Committee shall deliver an opinion on the draft within a time limit which its Chairman may lay down according to the urgency of the matter concerned. The opinion shall be delivered by the majority laid down in Article 148 (2) of the Treaty in the case of decisions which the Council is required to adopt on a proposal from the Commission. The votes of the representatives shall be weighted in the manner set out in that Article. The Chairman shall not vote.
The Commission shall adopt the common position and transmit it immediately to the ACP States. However, if the common position is not in accordance with the opinion of the Committee, it shall be submitted by the Commission to the Council forthwith. In that event the Commission shall defer its transmission to the ACP States for a period of twenty working days from the date of the vote in the Committee.
The Council, acting by a qualified majority, may adopt a different common position within the time limit referred to in the second paragraph.
Article 3
The definition of working days for the purposes of this Decision shall be that laid down in Regulation (EEC, Euratom) No 1182/71.
Article 4
This Decision shall take effect on the date of its publication in the Official Journal of the European Communities.
Done at Luxembourg, 8 October 1990.
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COMMISSION REGULATION (EC) No 1306/95 of 8 June 1995 amending Regulation (EC) No 3223/94 on detailed rules for the application of the import arrangements for fruit and vegetables
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Council Regulation (EEC) No 1035/72 of 18 May 1972 on the common organization of the market in fruit and vegetables (1), as last amended by Commission Regulation (EC) No 997/95 (2), and in particular Article 23 (2) thereof,
Whereas Commission Regulation (EC) No 3223/94 of 21 December 1994 on detailed rules for the application of the import arrangements for fruit and vegetables (3), as amended by Regulation (EC) No 553/95 (4), introduces a mechanism for recording prices on the representative markets with a view to fixing a standard import value in order to determine the value of products imported on consignment so that they can be classified in the Common Customs Tariff; whereas, in the case of certain fresh products imported for processing, separate entry prices apply from 1 May and, for such products, which are not sold on consignment on the representative markets, a direct price recording mechanism may be used for their tariff classification; whereas the said mechanism may involve only the tariff classification of the products concerned on the basis either of the fob price of the products, plus the costs of insurance and freight up to the borders of the Community customs territory, or of the customs value referred to in Article 30 (2) (c) of Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code (5), as amended by the Act of Accession of Austria, Finland and Sweden;
Whereas, if the customs authorities consider that a security is required pursuant to Article 248 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 (6), as last amended by Regulation (EC) No 3254/94 (7), they must require an amount equal to the maximum amount of duty applicable to the product in question to be lodged; whereas, if the importer chooses to classify his products on the basis of the customs value referred to in Article 30 (2) (c) of Regulation (EEC) No 2913/92, he must lodge a security equal to the maximum amount of duty applicable to the product in question;
Whereas the measures provided for in this Regulation are in accordance with the opinion of the Management Committee for Fruit and Vegetables,
HAS ADOPTED THIS REGULATION:
Article 1
Regulation (EC) No 3223/94 is hereby amended as follows:
1. The words 'the Annex` in Articles 2, 4, 5 and 6 are replaced by 'Part A of the Annex`.
2. The Annex is replaced by the Annex to this Regulation.
3. The following paragraph is inserted after Article 5 (1):
'1a. The entry price on the basis of which the products listed in part B of the Annex are classified in the customs tariff of the European Communities must be equal, as the importer chooses:
(a) either to the fob price of the products in their country of origin plus the costs in insurance and freight up to the borders of the Community customs territory, where that price and those costs are known at the time the customs declaration is made.
If the customs authorities deem that a security is required pursuant to Article 248 of Regulation (EEC) No 2454/93, the importer must lodge a security equal to the maximum amount of duty applicable to the product in question;
(b) or to the customs value calculated in accordance with Article 30 (2) (c) of Regulation (EEC) No 2913/92 applied only to the imported products in question. In that case, the duty shall be deducted as provided for in Article 4 (1).
In that case the importer must lodge the security referred to in Article 248 of Regulation (EEC) No 2454/93, equal to the maximum amount of duty applicable to the product in question.` 4. The first subparagraph of Article 5 (2) is replaced by the following:
'2. The importer shall have one month from the sale of the products in question, subject to a limit of four months from the date of acceptances of the declaration of release for free circulation, to prove that the lot was disposed of under conditions confirming the correctness of the prices referred to in the second subparagraph of paragraph 1 (a) or paragraph 1a (a), or to determine the customs value referred to in paragraph 1 (b) and paragraph 1a (a). Failure to meet one or other of these deadlines shall entail the loss of the security lodged, without prejudice to the application of paragraph 3.`
Article 2
This Regulation shall enter into force on the third day following its publication in the Official Journal of the European Communities.
It shall apply from 1 May 1995.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 8 June 1995.
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*****
COMMISSION DECISION
of 10 December 1986
approving addenda to the programmes relating to horticulture and vine nurseries in France pursuant to Council Regulation (EEC) No 355/77
(Only the French text is authentic)
(87/26/EEC)
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Economic Community,
Having regard to Council Regulation (EEC) No 355/77 of 15 February 1977 on common measures to improve the conditions under which agricultural and fishery products are processed and marketed (1), as last amended by Regulation (EEC) No 2224/86 (2), and in particular Article 5 thereof,
Whereas on 14 November 1985 the French Government forwarded addenda to the programmes approved by Commission Decision 80/1055/EEC (3) relating to the conditions under which horticultural products and products from vine nurseries are processed and marketed and on 22 May 1986 submitted supplementary information;
Whereas the addenda to the programmes concern the rationalization and improvement of structures for the market preparation and marketing of horticultural products and products from vine nurseries so as to make these sectors more competitive and add value to their output; whereas they therefore constitute programmes within the meaning of Article 2 of Regulation (EEC) No 355/77;
Whereas the addenda contain enough of the details specified in Article 3 of Regulation (EEC) No 355/77 to show that the objectives of Article 1 of the said Regulation can be attained in the horticulture and vine nursery sectors; whereas the time laid down for implementing the addenda does not exceed the period specified in Article 3 (1) (g) of the said Regulation;
Whereas the measures provided for in this Decision are in accordance with the opinion of the Standing Committee on Agricultural Structure,
HAS ADOPTED THIS DECISION:
Article 1
The addenda to the programmes relating to horticulture and vine nurseries, notified on 14 November 1985 and supplemented on 22 May 1986 by the French Government in accordance with Regulation (EEC) No 355/77, are hereby approved.
Article 2
This Decision is addressed to the French Republic.
Done at Brussels, 10 December 1986.
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Commission Decision
of 7 November 2000
on introducing vaccination to supplement the measures to control avian influenza in Italy and on specific movement control measures
(notified under document number C(2000) 3257)
(Text with EEA relevance)
(2000/721/EC)
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
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(1), as last amended by Council Directive 92/118/EEC(2), and, in particular, Article 10(4) 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(3), as last amended by Council Directive 92/118/EEC, and in particular, Article 9(4) thereof,
Having regard to Council Directive 92/40/EEC introducing Community measures for the control of avian influenza(4), and in particular Article 16 thereof,
Whereas:
(1) Italy has during 1999 and 2000 experienced outbreaks of avian influenza with devastating economic losses for the poultry industry.
(2) Italy has during epidemiological investigations for avian influenza detected the presence of low pathogenic avian influenza virus.
(3) The low pathogenic virus can mutate to a highly pathogenic virus and cause disease outbreaks.
(4) The low pathogenic virus circulates at present in an area of Italy with dense poultry population.
(5) Vaccination can in this context be an effective tool to supplement disease control measures.
(6) Where vaccination against avian influenza is practised movement restrictions for vaccinated poultry have to be implemented.
(7) Italy has presented a vaccination programme to supplement the measures to control avian influenza in a limited area of Italy including specific movement restrictions.
(8) Italy has authorised the use of an inactivated vaccine against avian influenza for the implementation of the programme. The vaccine is obtained from the Master seed strain CK/Pak/95-H7.
(9) The Commission shall establish a technical working group to review the vaccination programme presented by Italy.
(10) Italy shall introduce specific movement restrictions related to vaccination of poultry and to intra-Community trade.
(11) The measures provided for in this Decision are in accordance with the opinion of the Standing Veterinary Committee,
HAS ADOPTED THIS DECISION:
Article 1
1. The vaccination programme against avian influenza presented by Italy is hereby approved and shall be carried out in the area described in Annex I.
2. The programme referred to in paragraph 1 shall before 1 November 2000 be reviewed by a technical working group with the objective to improve the efficacy of the programme if possible.
3. The working group shall be established by the Commission.
Article 2
The restrictions on movements of live birds, hatching eggs, table eggs and poultrymeat into, out of and within the area described in Annex I shall apply as laid down in the vaccination programme referred to in Article 1(1).
Article 3
1. No live birds and hatching eggs coming from and/or originating from the area described in Annex II shall be dispatched from Italy.
2. Live birds and hatching eggs coming from and/or originating from the territory of Italy outside the area listed in Annex II can only be dispatched from Italy, if no contacts or other epidemiological links in relation to avian influenza can be established to a holding or a hatchery situated in the area described in the Annex I.
Article 4
Animal health certificates accompanying consignments of live birds and hatching eggs from Italy shall include the words: "The animal health conditions of this consignment are in accordance with Decision 2000/721/EC".
Article 5
Fresh meat of poultry originating from the area described in Annex I and fresh poultrymeat produced in slaughterhouses located within the area described in Annex I must be marked in accordance with Article 5 of Council Directive 91/494/EEC(5) and cannot be dispatched from Italy.
Article 6
Italy shall ensure that in the area described in Annex I:
1. Only disposable packaging material or packaging material, which can be effectively washed and disinfected, is used for the collection, storage and transport of table eggs.
2. All means of transport used for poultry, hatching eggs, table eggs and poultry feedstuff must be cleaned and disinfected immediately before and after each transport with disinfectants including the methods of use approved by the competent authority.
Article 7
Movements of live poultry and hatching eggs coming from areas of Italy outside the area described in Annex II to other Member States shall only be allowed following five days advance notification to the central and local veterinary authorities of destination. The notification shall be dispatched by the competent veterinary authority.
Article 8
1. Italy shall notify to the Commission and to other Member States the date of the commence of the vaccination at least five days in advance.
2. The provisions of the Articles 2 to 7 shall be enforced from the date of the commence of the vaccination and have to stay in place for a period of time after the end of vaccination which will be determined before its end.
Article 9
Italy shall at six-month intervals present a report containing information on the effectiveness of the vaccination programme referred to in Article 1(1).
Article 10
This Decision is addressed to the Member States.
Done at Brussels, 7 November 2000.
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COMMISSION DECISION of 28 November 1995 adopting specific measures to temporarily forbid use of the comprehensive guarantee for certain transit procedure (Only the Spanish text is authentic) (Text with EEA relevance) (95/521/EC)
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
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 (1), as last amended by the Commission Regulation (EEC) No 1762/95 of 19 July 1995 (2), and in particular Article 360 thereof,
Whereas the customs administration of the Kingdom of Spain by letter dated 4 April 1995, completed by letter of 27 July 1995, indicated its wish to apply the abovementioned Article 360 in order to prevent temporary use of the comprehensive guarantee for external Community transit operations involving cigarettes of Harmonized System subheading 24.02.20, and for this purpose asks the agreement of the Commission;
Whereas external Community transit operations involving cigarettes are made the subject of specific information with particular reference to the provisions of Council Regulation (EEC) No 1468/81 (3);
Whereas as a result of information supplied by the customs administration of the Kingdom of Spain and also as a result of information compiled by the Commission, fraud involving cigarettes in the context of the external Community transit regime appears to have reached significant proportions, notably since the transport of these goods using the TIR Convention of 1975 was forbidden;
Whereas despite measures taken at Community level which required with effect from April 1994, in the context of applying Article 361 of the aforementioned Regulation (EEC) No 2454/93, a comprehensive guarantee at a level of 100 % of the duties and other charges payable on cigarettes carried under the external Community transit regime, such external Community transit operations present an exceptionally high risk of fraud;
Whereas the request of the customs administration of the Kingdom of Spain is well-founded,
HAS ADOPTED THIS DECISION:
Article 1
The Commission authorizes the customs administration of the Kingdom of Spain to take specific measures, in conformity with Article 360 of Regulation No 2454/93 of 2 July 1993, with effect from a date to be fixed by that administration, to temporarily forbid the use of the comprehensive guarantee for external Community transit operations involving cigarettes of Harmonized System subheading 24.02.20.
Article 2
This Decision is addressed to the Kingdom of Spain.
Done at Brussels, 28 November 1995.
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COMMISSION REGULATION (EC) No 1192/2008
of 17 November 2008
amending Regulation (EEC) No 2454/93 laying down provisions for the implementation of Council Regulation (EEC) No 2913/92 establishing the Community Customs Code
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), and in particular Article 247 thereof,
Whereas:
(1)
Commission Regulation (EEC) No 2454/93 (2) currently lays down provisions on single authorisations involving customs administrations in more than one Member State for customs procedures with economic impact and end-use only.
(2)
Taking into account the Lisbon strategy, which aims at making the EU the most competitive economy in the world, it is crucial to create a modern and simplified environment with conditions for a real internal market where trade competitiveness will increase and distortion of competition between companies in different Member States is avoided. Single authorisations for simplified procedures, as well as the integrated single authorisation, allow operators to centralise and integrate accounting, logistics and distribution functions with consequent savings in administrative and transaction costs, and is a genuine simplification. It is therefore appropriate to extend the provisions on single authorisations to the use of the simplified declaration and to the local clearance procedure.
(3)
Accordingly, it is appropriate to merge the existing definitions of ‘single authorisation’ relating to customs procedures with economic impact and end-use with those for the simplified declaration and the local clearance procedure, due to the fact that these procedures may be combined when used.
(4)
Commission Regulation (EC) No 1875/2006 (3) amending Regulation (EEC) No 2454/93, has laid down the minimum particulars to be declared under the simplified declaration procedure or entered in the records under the local clearance procedure. Under single authorisations, the minimum particulars to be declared under the simplified declaration procedure should be the maximum data that can be made available to a customs office in another Member State.
(5)
As AEO certificates, and notably those for customs simplifications, will often be combined with single authorisations, it is appropriate to align the rules on the granting, suspension and revocation of both types of authorisation as much as possible, including the provisions on records allowing the appropriate audit of the procedure.
(6)
Carriers, freight forwarders and customs agents who are holders of an AEO certificate have easier access to customs simplifications, including for the use of simplified declaration and of local clearance procedure. It is therefore appropriate to provide that representatives can be granted an authorisation for the simplified declaration or the local clearance procedure, provided they fulfil certain conditions and criteria.
(7)
It is necessary to improve the application and authorisation procedure for single authorisations by reducing the time taken to exchange information and by developing common rules, to avoid delays in granting such authorisations. These rules should allow the customs authorities to supervise and monitor operations under single authorisations without administrative arrangements disproportionate to the economic needs involved.
(8)
The conditions and criteria for granting both national and single authorisations for the simplified declaration and the local clearance procedure should be identical in order to achieve harmonisation within the single market.
(9)
It is necessary to establish common rules for the amendment, suspension and revocation of authorisations for the simplified declaration and the local clearance procedure, to ensure common practice throughout the customs territory of the Community.
(10)
In order to achieve the objective of improving the application and authorisation procedures, it is necessary to introduce an electronic communication and database system for single authorisations, to be used for information and communication exchange between the customs authorities and to inform the Commission and economic operators. This system should be an extension of the information and communication system provided for the granting of AEO certificates.
(11)
The use of the simplified declaration and the local clearance procedure should, after a transitional period, only be allowed for economic operators lodging electronic customs declarations or notifications as required by a simple and paperless environment.
(12)
It should be clarified that a customs declaration can, with the approval of the customs authority or authorities involved in granting an authorisation, be lodged at a customs office different from the one where the goods are presented or will be presented or made available for control.
(13)
As regards transit formalities, it is appropriate, until the time when Regulation (EC) No 1875/2006 applies, that when those formalities are carried out using an electronic data-processing technique, the summary declaration be accepted on the basis of the ‘anticipated arrival record’ message.
(14)
In accordance with Regulation (EEC) No 2454/93, as amended by Council Regulation (EC) No 837/2005 (4) requiring transit declarations to be lodged using computer methods as from 1 July 2005, all economic operators should lodge their transit declarations in the customs computerised transit system. In addition, it should be made possible for travellers to lodge the transit declarations drawn up in writing to the customs authorities, who should ensure that the transit data is exchanged between customs authorities using information technology and computer networks.
(15)
The Convention of 20 May 1987 on a common transit procedure (5) has been amended in line with the obligation to lodge the common transit declarations in standard procedure by using an electronic data-processing technique and the parallel provisions belonging to the Community legislation should be adapted accordingly.
(16)
In these circumstances, the implementing provisions of the Community transit procedure based on the submission of the transit declaration made in writing, including those provisions concerning documents which relate to the declaration, should be adapted to the obligation to lodge Community transit declarations in the standard procedure by using an electronic data-processing technique.
(17)
Except in the case of travellers, the use of declarations made in writing and the associated documents should be circumscribed to the fallback procedure enabling the operators to carry out the transit operations when the customs computerised transit system, or when the computerised system of the authorised consignor or of the principal does not function, or when the network between the latter and the customs authorities is not functioning.
(18)
It is necessary to use data processing techniques for TIR operations that take place within the customs territory of the Community, in order to ensure an efficient exchange of data and the same level of customs control as under the Community/common transit procedure.
(19)
TIR operations in the customs territory of the Community should be integrated into the electronic environment introduced by Regulation (EC) No 1875/2006 providing for the lodging of pre-arrival and pre-departure declarations by electronic means.
(20)
The use of electronic data should eliminate the need to return the appropriate part of TIR carnet voucher No 2 within the customs territory of the Community whenever the computerised system is used and, as a consequence, should reduce the number of unnecessary enquiry procedures. It should also improve the efficiency and security of TIR operations, as the computerised system accelerates their supervision which provides tangible benefits to both customs administrations and economic operators.
(21)
It is appropriate to provide that the holder of the TIR carnet lodges the TIR carnet data at the office of departure or entry using a data-processing technique. However, any legal consequences arising from a discrepancy between the electronic TIR carnet data lodged and the TIR carnet should be based on the TIR carnet particulars, in conformity with the TIR Convention. The formalities concerning parties other than the customs authorities of the Community should continue to be fulfilled on the basis of the TIR carnet, including the use of the TIR carnet as proof of an international guarantee.
(22)
A waiver from the obligation to lodge the TIR carnet data by means of a data-processing technique should only be permitted in exceptional cases, where the customs' computerised transit system or the application for lodging the declaration is not functioning, or where the network between these two systems is not working.
(23)
For the sake of clarity, in Article 453(2) of Regulation (EEC) No 2454/93 reference should be made to the rule allowing the establishment of Community status of goods placed under the TIR procedure.
(24)
The particulars on the data to be provided in the computerised system for the electronic TIR carnet data should be integrated into the rules and codes for electronic transit declarations specified in Annexes 37a and 37c.
(25)
In order to simplify and accelerate the publication of any amendments to the list of coordinating offices designated by the Member States for any action concerning infringements or irregularities relating to ATA carnets, this publication should be made via the official website of the European Union on the Internet.
(26)
The regular review of the list of goods which involve higher risk of fraud in the course of a transit operation, as set out in Annex 44c to Regulation (EEC) No 2454/93 conducted under Article 340a of that Regulation on the basis of information collected from Member States, has shown that certain goods which appear in that list are no longer considered to involve a higher risk of fraud. It is therefore appropriate to adjust the list in Annex 44c accordingly.
(27)
Annex 67 of Regulation (EEC) No 2454/93 contains a common application and authorisation form for customs procedures with economic impact and for end-use. This form is to be used whether one or more than one customs administration is involved. It is appropriate to extend the use of Annex 67 to cases where an application is made for an authorisation to use the simplified declaration or the local clearance procedure, both at national level and when more than one customs administration is involved.
(28)
Regulation (EEC) No 2454/93 should therefore be amended accordingly.
(29)
Since the amendments laid down in Decision 1/2008 of the EC-EFTA Joint Committee of Common Transit of 16 June 2008 amending the Convention of 20 May 1987 on a common transit procedure apply from 1 July 2008 and 1 July 2009, the corresponding provisions laid down in this Regulation should apply from the same dates.
(30)
The measures provided for in this Regulation are in accordance with the opinion of the Customs Code Committee,
HAS ADOPTED THIS REGULATION:
Article 1
Regulation (EEC) No 2454/93 is amended as follows:
1.
In Article 1 the following points 13, 14 and 15 are added:
‘13.
Single authorisation means: an authorisation involving customs administrations in more than one Member State for one of the following procedures:
-
the simplified declaration procedure pursuant to Article 76(1) of the Code, or
-
the local clearance procedure pursuant to Article 76(1) of the Code, or
-
customs procedures with economic impact pursuant to Article 84(1)(b) of the Code, or
-
end-use pursuant to Article 21(1) of the Code.
14.
Integrated authorisation means: an authorisation to use more than one of the procedures referred to in point 13; it may take the form of an integrated single authorisation where more than one customs administration is involved.
15.
Authorising customs authority means: the customs authority who grants an authorisation.’
2.
In Article 183, paragraph 3 is replaced by the following:
‘3. The summary declaration for goods that have been moved under a transit procedure for which the formalities are carried out by electronic data-processing techniques before being presented to customs shall take the form of the transit declaration transmitted to the office of destination using the “anticipated arrival record”.
The summary declaration shall take the form of the copy of the transit document or of the Transit Accompanying Document where Article 353(2) is applied.’
3.
In Article 199, paragraphs 1 and 2 are replaced by the following:
‘1. Without prejudice to the possible application of penal provisions, the lodging of a declaration signed by the declarant or his representative with a customs office or a transit declaration lodged using electronic data-processing techniques shall render the declarant or his representative responsible under the provisions in force for:
-
the accuracy of the information given in the declaration,
-
the authenticity of the documents presented, and
-
compliance with all the obligations relating to the entry of the goods in question under the procedure concerned.
2. Where the declarant uses data-processing systems to produce his customs declarations, including transit declarations made in accordance with Article 353(2)(b), the customs authorities may provide that the handwritten signature may be replaced by another identification technique which may be based on the use of codes. This facility shall be granted only if the technical and administrative conditions laid down by the customs authorities are complied with.
The customs authorities may also provide that declarations, including transit declarations made in accordance with Article 353(2)(b) produced using customs data-processing systems, may be directly authenticated by those systems, in place of the manual or mechanical application of the customs office stamp and the signature of the competent official.’
4.
In Article 201, the following paragraph 3 is added:
‘3. The customs authorities may allow the customs declaration to be lodged at a customs office different from the one where the goods are presented or will be presented or made available for control, provided that one of the following conditions is fulfilled:
(a)
the customs offices referred to in the introductory phrase are in the same Member State;
(b)
the goods are to be placed under a customs procedure by the holder of a single authorisation for the simplified declaration or the local clearance procedure.’
5.
In Article 202, the following paragraph 3 is added:
‘3. The transit declaration shall be lodged and goods shall be presented at the office of departure during the days and hours established by the customs authorities.
The office of departure may, at the request and expense of the principal, allow the goods to be presented in another place.’
6.
Article 203 is replaced by the following:
‘Article 203
1. The date of acceptance of the declaration shall be noted thereon.
2. The Community transit declaration shall be accepted and registered by the office of departure during the days and hours established by the customs authorities.’
7.
In Article 205(3), the fifth indent and the sixth indent are replaced by the following:
‘-
use, by persons concerned, of loading lists for the completion of Community transit formalities in the case of consignments composed of more than one kind of goods, where Article 353(2) and Article 441 are applied,
-
printing declarations for export, import and for transit where Article 353(2) is applied and documents certifying the Community status of goods not being moved under the internal Community transit procedure by means of official or private-sector data-processing systems, if necessary on plain paper, on conditions laid down by the Member States.’
8.
In Article 208, paragraph 2 is replaced by the following:
‘2. Where the Community transit procedure or the common transit procedure is preceded or followed by another customs procedure, a subset containing the number of copies required for the completion of formalities relating to the transit procedure where Article 353(2) is applied and the preceding or following procedure may be presented.’
9.
In Article 215(1), the second and third subparagraphs are replaced by the following:
‘The paper shall be white for all copies. However, on the copies used for Community transit in accordance with Article 353(2), boxes 1 (first and third subdivisions), 2, 3, 4, 5, 6, 8, 15, 17, 18, 19, 21, 25, 27, 31, 32, 33 (first subdivision on the left), 35, 38, 40, 44, 50, 51, 52, 53, 55 and 56 shall have a green background.
The forms shall be printed in green ink.’
10.
In Article 219, paragraph 1 is replaced by the following:
‘1. The goods that are the subject of the transit declaration shall be presented together with the transport document.
The office of departure may waive the requirement to produce this document when the customs formalities are completed, on condition that the document is kept at its disposal.
However, the transport document shall be presented at the request of the customs authorities or any other competent authority in the course of transport.’
11.
In Article 247, the following paragraph 5 is added:
‘5. For the implementation of the Community transit procedure, the office of departure shall record the results of the verification by entering corresponding data in the transit declaration.’
12.
In Article 249, the following paragraph 3 is added:
‘3. For the implementation of the Community transit procedure, and if the results of the verification of the declaration allow it, the office of departure shall authorise the release of the goods and record the date of the release in the computerised system.’
13.
In Part I, Title IX, Chapter 1, the following heading is inserted before Article 253:
‘Section 1
General’
14.
In Article 253, the following paragraphs 4 to 8 are added:
‘4. Any person may apply for an authorisation for the simplified declaration or the local clearance procedure, to be granted to himself for his own use or for use as a representative, provided satisfactory records and procedures are in place allowing the authorising customs authority to identify the persons represented and to perform appropriate customs controls.
Such application may also concern an integrated authorisation without prejudice to Article 64 of the Code.
5. The use of the simplified declaration or the local clearance procedure is conditional on the provision of a guarantee for import duties and other charges.
6. The holder of the authorisation shall comply with the conditions and criteria laid down in this Chapter and the obligations resulting from the authorisation, without prejudice to the obligations of the declarant, and the rules governing the incurrence of a customs debt.
7. The holder of the authorisation shall inform the authorising customs authority of all factors arising after the authorisation is granted which may influence its continuation or content.
8. A reassessment of an authorisation for the simplified declaration or the local clearance procedure shall be carried out by the authorising customs authority in the following cases:
(a)
major changes to the relevant Community legislation;
(b)
reasonable indication that the relevant conditions are no longer met by the authorisation holder.
In the case of an authorisation for the simplified declaration or the local clearance procedure issued to an applicant established for less than three years, close monitoring shall take place during the first year after issue.’
15.
In Article 253a, the following paragraph is added:
‘The use of the simplified declaration or the local clearance procedure shall be conditional on the lodging of electronic customs declarations and notifications.’
16.
In Part I, Title IX, Chapter 1, the following Section 2 is inserted after Article 253a:
‘Section 2
Granting, suspension, revocation of authorisations for the simplified declaration or the local clearance procedure
Article 253b
1. Applications for authorisation of the simplified declaration or the local clearance procedure shall be made using the model application form set out in Annex 67 or the corresponding electronic format.
2. Where the authorising customs authority establishes that the application does not contain all the particulars required, it shall, within 30 calendar days of receipt of the application, ask the applicant to supply the relevant information, stating the grounds for its request.
3. The application shall not be accepted if:
(a)
it does not comply with paragraph 1;
(b)
it has not been submitted to the competent customs authorities;
(c)
the applicant has been convicted of a serious criminal offence linked to the economic activity of the applicant;
(d)
the applicant is subject to bankruptcy proceedings at the time of the submission of the application.
4. Before granting an authorisation for the simplified declaration or the local clearance procedure the customs authorities shall audit the applicant's records, unless the results of a previous audit can be used.
Article 253c
1. Authorisation for the simplified declaration procedure shall be granted provided that the conditions and criteria laid down in Article 14h, with the exception of paragraph 1(c), in points (d), (e) and (g) of Article 14i and in Article 14j are fulfilled.
Authorisation for the local clearance procedure shall be granted provided that the conditions and criteria laid down in Article 14h, with the exception of paragraph 1(c), in Article 14i and in Article 14j are fulfilled.
For the granting of the authorisations referred to in the first and second subparagraphs, the customs authorities shall apply Article 14a(2) and use the authorisation form set out in Annex 67.
2. Where the applicant holds an AEO certificate referred to in point (a) or (c) of Article 14a(1), the conditions and criteria referred to in paragraph 1 of this Article are deemed to be fulfilled.
Article 253d
1. An authorisation for the simplified declaration or the local clearance procedure shall be suspended by the authorising customs authority where:
(a)
non-compliance with the conditions and criteria referred to in Article 253c(1) has been detected;
(b)
the customs authorities have sufficient reason to believe that an act, which gives rise to criminal court proceedings and is linked to an infringement of the customs rules, has been perpetrated by the holder of the authorisation or another person referred to in points (a), (b) or (d) of Article 14h(1).
However, in the case referred to in point (b) of the first subparagraph of this Article, the authorising customs authority may decide not to suspend an authorisation for the simplified declaration or the local clearance procedure if it considers an infringement to be of negligible importance in relation to the number or size of the customs related operations and not to create doubts concerning the good faith of the holder of the authorisation.
Before taking a decision, the authorising customs authority shall communicate its findings to the holder of the authorisation. The holder of the authorisation shall be entitled to regularise the situation and/or express his point of view within 30 calendar days starting from the date of communication.
2. If the holder of the authorisation does not regularise the situation referred to in point (a) of the first subparagraph of paragraph 1 within the period of 30 calendar days the authorising customs authority shall notify the holder of the authorisation that the authorisation for the simplified declaration or local clearance procedure is suspended for a period of 30 calendar days to enable the holder of the authorisation to take the required measures to regularise the situation.
3. In the cases referred to in point (b) of the first subparagraph of paragraph 1, the authorising customs authority shall suspend the authorisation until the end of the court proceedings. It shall notify the holder of the authorisation to that effect.
4. Where the holder of the authorisation has been unable to regularise the situation within 30 calendar days but can provide evidence that the conditions can be met if the suspension period is extended, the authorising customs authority shall suspend the authorisation for the simplified declaration or the local clearance procedure for a further 30 calendar days.
5. The suspension of an authorisation shall not affect any customs procedure that has already begun before the date of suspension but has not yet been completed.
Article 253e
1. When the holder of the authorisation has, to the satisfaction of the authorising customs authority, taken the necessary measures to comply with the conditions and criteria that have to be met in the authorisation for the simplified declaration or the local clearance procedure, the authorising customs authority shall withdraw the suspension and inform the holder of the authorisation. The suspension may be withdrawn before the expiry of the time limit laid down in Article 253d(2) or (4).
2. If the holder of the authorisation fails to take the necessary measures within the suspension period provided for in Article 253d(2) or (4), Article 253g shall apply.
Article 253f
1. Where a holder of an authorisation is temporarily unable to meet any of the conditions and criteria laid down for an authorisation for the simplified declaration or the local clearance procedure, he may request a suspension of the authorisation. In such cases, the holder of an authorisation shall notify the authorising customs authority, specifying the date when he will be able to meet the conditions and criteria again. He shall also notify the authorising customs authority of any planned measures and their timescale.
2. If the holder of the authorisation fails to regularise the situation within the period set out in his notification, the authorising customs authority may grant a reasonable extension, provided that the holder of the authorisation has acted in good faith.
Article 253g
Without prejudice to Article 9 of the Code and Article 4 of this Regulation, an authorisation for the simplified declaration or local clearance procedure shall be revoked by the authorising customs authority in the following cases:
(a)
where the holder of the authorisation fails to regularise the situation referred to in Articles 253d(2) and 253f(1);
(b)
where serious or repeated infringements related to the customs rules have been committed by the holder of the authorisation or other persons referred to in points (a), (b) or (d) of Article 14h(1) and there is no further right of appeal;
(c)
upon request of the holder of the authorisation.
However, in the case referred to in point (b) of the first subparagraph, the authorising customs authority may decide not to revoke the authorisation for the simplified declaration or the local clearance procedure if it considers the infringements to be of negligible importance in relation to the number or size of the customs related operations and not to create doubts concerning the good faith of the holder of the authorisation.’
17.
In Part I, Title IX, the following Chapter 1A is inserted:
‘CHAPTER 1A
Single authorisation for the simplified declaration or the local clearance procedure
Section 1
Application procedure
Article 253h
1. The application for a single authorisation for the simplified declaration or the local clearance procedure shall be submitted to one of the customs authorities referred to in Article 14d(1) and (2).
However, where the authorisation for the simplified declaration or the local clearance procedure is requested in the context of, or following, an application for a single authorisation for end-use or for a customs procedure with economic impact, Article 292(5) and (6) or Articles 500 and 501 shall apply.
2. If a part of the relevant records and documentation is kept in a Member State other than the Member State of application, the applicant shall duly complete boxes 5a, 5b and 7 of the application form of which the model is set out in Annex 67.
3. The applicant shall provide a readily accessible central point or nominate a contact person within the administration of the applicant in the Member State of application, in order to make available to the customs authorities all of the information necessary for proving compliance with the requirements for granting the single authorisation.
4. Applicants shall, to the extent possible, submit necessary data to the customs authorities by electronic means.
5. Until the introduction of an electronic data exchange system between the Member States involved, which is necessary for the purposes of the relevant customs procedure, the authorising customs authority may reject applications made under paragraph 1 if the single authorisation would create a disproportionate administrative charge.
Article 253i
1. Member States shall communicate to the Commission a list of customs authorities referred to in Article 253h(1), to which applications have to be made and any subsequent changes thereto. The Commission shall make such information available on the Internet. These authorities shall act as the authorising customs authorities of single authorisations for the simplified declaration and the local clearance procedure.
2. Member States shall nominate a central office responsible for the information exchange between Member States and between Member States and the Commission, and shall communicate that office to the Commission.
Section 2
Issuing procedure
Article 253j
1. Where a single authorisation for the simplified declaration or the local clearance procedure is applied for, the authorising customs authority shall make available the following information to the other customs authorities concerned:
(a)
the application;
(b)
the draft authorisation;
(c)
all necessary information for granting the authorisation.
It shall be made available using the communication system referred to in Article 253m once this system is available.
2. The information referred to in points (a), (b) and (c) of paragraph 1 shall be made available by the authorising customs authority within the following time limits:
(a)
30 calendar days, if the applicant has been previously granted the simplified declaration or the local clearance procedure or an AEO certificate referred to in point (a) or (c) of Article 14a(1);
(b)
90 calendar days in all other cases.
Where the authorising customs authority is unable to meet those time limits, it may extend them by 30 calendar days. In such cases, the authorising customs authority shall, before the expiry of those time limits, inform the applicant of the reasons for the extension.
The time limit shall run from the date on which the authorising customs authority receives all the necessary information referred to in points (a), (b) and (c) of paragraph 1. The authorising customs authority shall inform the applicant that the application has been accepted and the date from which the time limit will run.
3. Until 31 December 2009, the maximum periods of 30 or 90 calendar days provided for in the first subparagraph of paragraph 2 shall be replaced by 90 or 210 calendar days.
Article 253k
1. The authorising customs authority of the Member State where the application has been made and the customs authorities of the other Member States involved in the single authorisation applied for shall cooperate in the setting up of the operational and reporting requirements, including a control plan for the supervision of the customs procedure operated under the single authorisation. However, the data to be exchanged for the purposes of the customs procedure(s) between the customs authorities concerned shall not exceed that laid down in Annex 30A.
2. The customs authorities of the other Member States concerned by the single authorisation applied for shall notify the authorising customs authority of any objections within 30 calendar days of the date on which the draft authorisation was received. If additional time is needed for this notification, the authorising customs authority shall be informed as soon as possible and in any event within this time limit. This additional time limit may be extended by no more than 30 calendar days. Where an extension is agreed, the authorising customs authority shall communicate the extension of the time limit to the applicant.
Where objections are notified and no agreement between the customs authorities is reached within that period, the application shall be rejected to the extent to which objections were raised.
If the customs authority consulted fails to respond within the time limit(s) laid down in the first subparagraph, the authorising customs authority may assume that no objections exist with regard to issuing such authorisation, while the responsibility remains with the customs authority consulted.
3. Before the partial or complete rejection of an application, the authorising customs authority shall communicate the reasons on which they intend to base their decision to the applicant, who shall be given the opportunity to express his point of view within 30 calendar days from the date on which the communication was made.
Article 253l
1. Where a single authorisation is applied for by an applicant who holds an AEO certificate referred to in point (a) or (c) of Article 14a(1), the authorisation shall be granted when the necessary exchange of information has been arranged between:
(a)
the applicant and the authorising customs authority;
(b)
the authorising authority and the other customs authorities concerned by the single authorisation applied for.
In cases where the applicant does not hold an AEO certificate referred to in point (a) or (c) of Article 14a(1), the authorisation shall be granted where the authorising customs authority is satisfied that the applicant will be able to meet the conditions and criteria for the authorisation laid down or referred to in Articles 253, 253a and 253c, and when the necessary exchange of information referred to in the first subparagraph of this paragraph has been arranged.
2. The authorising customs authority shall, after receiving consent or no reasoned objections from the other customs authorities concerned, issue the authorisation in accordance with the authorisation form laid down in Annex 67, within 30 calendar days following the expiry of the periods laid down in Article 253k(2) or (3).
The authorising customs authority shall make the authorisation available to the customs authorities in the participating Member States, using the information and communication system referred to in Article 253m once it is available.
3. Single authorisations for the simplified declaration and the local clearance procedure shall be recognised in all Member States detailed in box 10 or box 11, or in both of them, of the authorisation as applicable.
Section 3
Information exchange
Article 253m
1. An electronic information and communication system, defined by the Commission and the customs authorities in agreement with each other, shall be used, once it is available, for the information and communication process between the customs authorities and to inform the Commission and economic operators. The information provided to economic operators shall be limited to the non-confidential data defined in Title II, point 16, of the Explanatory Notes to the application form for simplified procedures set out in Annex 67.
2. The Commission and the customs authorities shall, using the system referred to in paragraph 1, exchange, store, and have access to the following information:
(a)
the data of the applications;
(b)
the information required for the issuing process;
(c)
the single authorisations issued for the procedures referred to in Article 1(13) and (14) and, where applicable, their amendment, suspension and revocation;
(d)
the results of a reassessment in accordance with Article 253(8).
3. The Commission and the Member States may disclose to the public, via the Internet, the list of single authorisations, as well as the non-confidential data defined in Title II, point 16, of the Explanatory Notes to the application form for simplified procedures set out in Annex 67 with prior agreement of the authorisation holder. The list shall be updated.’
18.
In Article 260(1), the words ‘The declarant’ are replaced by ‘An applicant’.
19.
Article 261 is replaced by the following:
‘Article 261
1. Authorisation to use the simplified declaration procedure shall be granted to the applicant if the conditions and criteria referred to in Articles 253, 253a, and 253c are fulfilled.
2. Where the applicant holds an AEO certificate referred to in point (a) or (c) of Article 14a(1), the authorising customs authority shall grant the authorisation when the necessary exchange of information has been arranged between the applicant and the authorising customs authority. All the conditions and criteria referred to in paragraph 1 of this Article shall be deemed to be met.’
20.
Article 264 is replaced by the following:
‘Article 264
1. Authorisation to use the local clearance procedure shall be granted to the applicant if the conditions and criteria referred to in Articles 253, 253a and 253c are fulfilled.
2. Where the applicant holds an AEO certificate referred to in point (a) or (c) of Article 14a(1), the authorising customs authority shall grant the authorisation when the necessary exchange of information has been arranged between the applicant and the authorising customs authority. All the conditions and criteria referred to in paragraph 1 of this Article shall be deemed to be met.’
21.
Article 265 is deleted.
22.
In Article 269, paragraph 1 is replaced by the following:
‘1. Authorisation to use the simplified declaration procedure shall be granted to the applicant in accordance with the conditions and criteria and in the manner laid down in Articles 253, 253a and 253c and 270.’
23.
Article 270 is amended as follows:
(a)
paragraphs 2, 3 and 4 are deleted;
(b)
paragraph 5 is replaced by the following:
‘5. Where the applicant holds an AEO certificate referred to in point (a) or (c) of Article 14a(1), the authorising customs authority shall grant the authorisation when the necessary exchange of information has been arranged between the applicant and the authorising customs authority. All conditions and criteria referred to in paragraph 1 of this Article shall be deemed to be met.’
24.
In Article 282, paragraph 1 is replaced by the following:
‘1. Authorisation to use the simplified declaration procedure shall be granted to the applicant if the conditions and criteria referred to in Articles 261 and 262 applied mutatis mutandis are fulfilled.’
25.
Article 288 is deleted.
26.
In Article 291(2), point (a) is deleted.
27.
In Article 340b, the following points are added:
‘6. “Transit accompanying document”: means the document printed by the computerised system to accompany the goods and based on the data of the transit declaration.
7. “Fallback procedure”: means the procedure based on the use of paper documents established to allow the lodging, the control of the transit declaration and the following of the transit operation when it is not possible to implement the standard procedure by electronic means.’
28.
In Article 340c, paragraph 1 is replaced by the following:
‘1. Community goods shall be placed under the internal Community transit procedure if they are consigned:
(a)
from a part of the customs territory of the Community where the provisions of Directive 2006/112/EC apply, to a part of the customs territory of the Community where those provisions do not apply; or
(b)
from a part of the customs territory of the Community where the provisions of Directive 2006/112/EC do not apply, to a part of the customs territory of the Community where those provisions do apply; or
(c)
from a part of the customs territory of the Community where the provisions of Directive 2006/112/EC do not apply, to a part of the customs territory of the Community where those provisions do not apply either.’
29.
In Article 342, the following paragraph 4 is added:
‘4. When the guarantee is furnished by a guarantor at an office of guarantee:
(a)
a “guarantee reference number” is allocated to the principal for the use of the guarantee and to identify each undertaking of the guarantor;
(b)
an access code associated with the “guarantee reference number” is allocated and is communicated to the principal.’
30.
Article 343 is replaced by the following:
‘Article 343
Each Member State shall enter into the computerised system the list of customs offices competent to handle Community transit operations, indicating their respective identification numbers and duties and stating the days and hours when they are open. Any changes to this information shall also be entered into the computerised system.
The Commission shall use the computerised system to communicate this information to the other Member States.’
31.
The following Article 343a is inserted:
‘Article 343a
Each Member State shall notify the Commission of any central offices that have been established, and of the responsibilities conferred on those offices regarding the management and monitoring of the Community transit procedure and in the receipt and transmission of documents, indicating the types of documents involved.
The Commission shall forward this information to the other Member States.’
32.
In Part II, Title II, Chapter 4, Section 1, the following Article 344a is inserted:
‘Article 344a
1. In the framework of the Community transit procedure, formalities shall be carried out by an electronic data-processing technique.
2. The messages to be used between administrations shall conform to the structure and particulars defined by the customs authorities in agreement with each other.’
33.
In Article 345, the following paragraph 4 is added:
‘4. Where the individual guarantee is furnished by a guarantor, the access code associated with the “guarantee reference number” cannot be modified by the principal except when Annex 47a, point 3, is applicable.’
34.
In Article 346, paragraph 1 is replaced by the following:
‘1. An individual guarantee furnished by a guarantor shall correspond to the specimen in Annex 49.
The guarantee instrument shall be retained at the office of guarantee.’
35.
Article 347 is replaced by the following:
‘Article 347
1. In the case referred to in Article 345(3), the individual guarantee shall correspond to the specimen in Annex 50.
Article 346(2) shall apply mutatis mutandis.
2. The guarantor shall provide the office of guarantee with any required details about the individual guarantee vouchers that he has issued, in the manner decided by the customs authorities.
The last date on which the voucher may be used cannot be later than one year from the date of issue.
3. A “guarantee reference number” shall be communicated by the guarantor to the principal for each individual guarantee voucher which is allocated to him. The associated access code cannot be modified by the principal.
4. For the purposes of implementing Article 353(2)(b), the guarantor shall issue the principal with individual guarantee vouchers drawn up on a paper form corresponding to the specimen in Annex 54, including the identification number.
5. The guarantor may issue individual guarantee vouchers which are not valid for a Community transit operation involving goods of the list published in Annex 44c. In this case the guarantor shall endorse each individual voucher in paper form diagonally with the following phrase:
-
Limited validity - 99200.
6. The principal shall lodge, at the office of departure, the number of individual guarantee vouchers corresponding to the multiple of EUR 7 000 required to cover the total amount referred to in Article 345(1). For the implementation of Article 353(2)(b), the individual vouchers in paper form shall be delivered and retained by the office of departure which shall communicate the identification number of each voucher to the office of guarantee indicated on the voucher.’
36.
In Article 348, paragraph 3 is replaced by the following:
‘3. The customs authorities of the Member State responsible for the relevant office of guarantee shall introduce into the computerised system the information of any such revocation or cancellation and the date when either becomes effective.’
37.
Article 350 is deleted.
38.
Article 351 is replaced by the following:
‘Article 351
In the case of consignments comprising both goods which must be placed under the external Community transit procedure and goods which must be placed under the internal Community transit procedure, the transit declaration bearing the “T” symbol shall be supplemented by the attribute “T1”, “T2” or “T2F” for each item of goods.’
39.
Article 352 is deleted.
40.
Article 353 is replaced by the following:
‘Article 353
1. Transit declarations shall comply with the structure and particulars set out in Annex 37a.
2. The customs authorities shall accept a transit declaration made in writing on a form corresponding to the specimen set out in Annex 31 in accordance with the procedure defined by the customs authorities in agreement with each other in the following cases:
(a)
where goods are transported by travellers who have no direct access to the customs’ computerised system, in accordance with the methods described in Article 353a;
(b)
where the fallback procedure is implemented, under the conditions and according to the methods defined in Annex 37d.
3. The use of a written transit declaration under paragraph 2(b) when the principal’s computer system and/or network is/are unavailable shall be subject to the approval of the customs authorities.
4. The transit declaration may be supplemented by one or more continuation sheets corresponding to the specimen set out in Annex 33. The forms shall be an integral part of the declaration.
5. Loading lists complying with Annex 44a and drawn up in accordance with the specimen in Annex 45 may be used instead of continuation sheets as the descriptive part of a written transit declaration, of which they shall be an integral part.’
41.
In Part II, Title II, Chapter 4, Section 2, Subsection 2, the following Article 353a is inserted:
‘Article 353a
1. For the application of Article 353(2)(a), the traveller shall draw up the transit declaration in accordance with Article 208 and Annex 37.
2. The competent authorities shall ensure that the transit data is exchanged between the competent authorities using information technology and computer networks.’
42.
In Article 356, paragraph 3 is deleted.
43.
Article 357 is amended as follows:
(a)
paragraph 1 is replaced by the following:
‘1. Without prejudice to paragraph 4, goods to be placed under the Community transit procedure shall not be released unless they are sealed. The office of departure shall take the identification measures it considers necessary and shall enter the relevant details in the transit declaration.’
(b)
paragraph 4 is replaced by the following:
‘4. The office of departure may dispense with sealing if, having regard to other possible measures for identification, the description of the goods in the data of the transit declaration or in the supplementary documents makes them readily identifiable.
A goods description shall be deemed to permit identification of the goods where it is sufficiently precise to permit easy identification of the quantity and nature of the goods.’
44.
Articles 358 and 359 are replaced by the following:
‘Article 358
1. On release of the goods, the office of departure shall transmit details of the Community transit operation to the declared office of destination using the “anticipated arrival record” message and to each declared office of transit using the “anticipated transit record” message. These messages shall be based on data derived from the transit declaration, amended where appropriate.
2. Following the release of goods, the transit accompanying document shall accompany the goods placed under the Community transit procedure. It shall correspond to the specimen and particulars in Annex 45a. The document shall be made available to the operator in one of the following ways:
(a)
it is given to the principal by the office of departure, or, where authorised by the customs authorities, it is printed out from the principal's computer system;
(b)
it is printed by the authorised consignor's computer system after receipt of the message allowing the release of goods sent by the office of departure.
3. Where appropriate, the transit accompanying document shall be supplemented by a list of items corresponding to the specimen and notes in Annex 45b. That list shall form an integral part of the transit accompanying document.
Article 359
1. The consignment and the transit accompanying document shall be presented at each office of transit.
2. The office of transit shall record the passage against the “anticipated transit record” message received from the office of departure. The passage shall be notified to the office of departure using the “notification crossing frontier” message.
3. The offices of transit shall inspect the goods if they consider it necessary to do so. Any inspection of the goods shall be carried out using in particular the “anticipated transit record” message as a basis for such inspection.
4. Where goods are carried via an office of transit other than that declared and mentioned in a transit accompanying document, the office of transit used shall request the “anticipated transit record” message from the office of departure and notify the passage to the office of departure using the “notification crossing frontier” message.’
45.
Article 360 is amended as follows:
(a)
in paragraph 1, the introductory sentence is replaced by the following:
‘The carrier shall be required to make the necessary entries in the transit accompanying document and present it with the consignment to the customs authorities of the Member State in whose territory the means of transport is located:’
(b)
paragraph 2 is replaced by the following:
‘2. Where the customs authorities consider that the Community transit operation concerned may continue in the normal way, they shall take any steps that may be necessary and then endorse the transit accompanying document.
Relevant information concerning the transfer or other incident shall be lodged in the computerised system by the customs authorities as the case may be at the office of transit or office of destination.’
46.
Articles 361, 362 and 363 are replaced by the following:
‘Article 361
1. The goods and the required documents shall be presented at the office of destination during the days and hours appointed for opening. However, the said office may, at the request and expense of the party concerned, allow the documents and the goods to be presented outside the appointed days and hours. Similarly, at the request and expense of the party concerned, the office of destination may also allow the goods and the required documents to be presented in any other place.
2. Where the goods are presented at the office of destination after expiry of the time limit prescribed by the office of departure and where this failure to comply with the time limit is due to circumstances which are explained to the satisfaction of the office of destination and are not attributable to the carrier or the principal, the latter shall be deemed to have complied with the time limit prescribed.
3. The office of destination shall keep the transit accompanying document and, the inspection of goods shall be made, in particular, on the basis of the “anticipated arrival record” message received from the office of departure.
4. At the request of the principal, and to provide evidence of the procedure having ended in accordance with Article 366(1), the office of destination shall endorse a copy of the transit accompanying document with the following phrase:
-
Alternative proof - 99202.
5. A transit operation may end at an office other than the one entered in the transit declaration. That office shall then become the office of destination.
Where the new office of destination comes under the jurisdiction of a Member State other than the one having jurisdiction over the office originally designated, the new office of destination shall request an “anticipated arrival record” message from the office of departure.
Article 362
1. The office of destination shall endorse a receipt at the request of the person presenting the goods and the required documents.
2. The receipt shall conform to the particulars in Annex 47.
3. The receipt shall be completed in advance by the person concerned. It may contain other particulars relating to the consignment, except in the space reserved for the office of destination. The receipt shall not be used as proof of the procedure having ended within the meaning of Article 366(1).
Article 363
1. The office of destination using the “arrival advice” message, shall notify the office of departure of the arrival of the goods on the day they are presented at the office of destination.
2. Where the transit operation is ended in another office than that declared initially in the transit declaration, the new office of destination shall notify the arrival to the office of departure by the “arrival advice” message.
The office of departure shall notify the arrival to the originally declared office of destination with the “forwarded arrival advice” message.
3. The “arrival advice” message referred to in paragraphs 1 and 2 may not be used as proof of the procedure having ended for the purposes of Article 366(1).
4. Except where justified, the office of destination shall forward the “control results” message to the office of departure at the latest on the third day following the day the goods are presented at the office of destination. However, where Article 408 applies, the office of destination shall forward the “control results” message to the office of departure at the latest on the sixth day following the day the goods have been delivered.’
47.
Article 364 is deleted.
48.
In Part II, Title II, Chapter 4, Section 2, the heading of Subsection 6 is replaced by the following:
‘Enquiry procedure’
49.
Article 365 is replaced by the following:
‘Article 365
1. When the customs authorities of the Member State of departure have not received the “arrival advice” message by the time limit within which the goods must be presented at the office of destination or have not received the “control results” message within six days after the “arrival advice” message has been received, those authorities shall consider launching the enquiry procedure in order to obtain the information needed to discharge the procedure or, where this is not possible:
-
to establish whether a customs debt has been incurred,
-
to identify the debtor, and
-
to determine the customs authorities responsible for recovery.
2. The enquiry procedure shall start at the latest seven days after the expiry of one of the time limits referred to in paragraph 1, except in exceptional cases defined by the Member States in agreement with each other. If the customs authorities receive information earlier that the transit procedure has not ended, or suspect that to be the case, the enquiry procedure shall be initiated forthwith.
3. If the customs authorities of the Member State of departure have only received the “arrival advice” message, they shall initiate the enquiry procedure by requesting from the office of destination, which has sent the “arrival advice” message, for the “control results” message.
4. If the customs authorities of the Member State of departure have not received the “arrival advice” message they shall initiate the enquiry procedure by requesting the information needed to discharge the procedure from the principal or, where sufficient particulars are available for the enquiry at destination, from the office of destination.
The principal shall be requested to provide the information needed to discharge the procedure at the latest 28 days after the start of the enquiry procedure with the office of destination when the transit operation cannot be discharged.
5. The office of destination and the principal shall reply to the request, referred to in paragraph 4, within 28 days. If the principal provides sufficient information within this period, the customs authorities of the Member State of departure shall take into account such information or shall discharge the procedure if the information provided so permits.
6. If the information received from the principal is not sufficient to discharge the procedure, but is sufficient for the enquiry procedure to continue according to the customs authorities of the Member State of departure, it shall immediately initiate a request to the customs office involved.
7. Where an enquiry establishes that the transit procedure ended correctly, the customs authorities of the Member State of departure shall discharge the procedure and shall immediately inform the principal and, where appropriate, any customs authorities that may have initiated a recovery procedure in accordance with Articles 217 to 232 of the Code.’
50.
The following Article 365a is inserted:
‘Article 365a
1. When the customs authorities of the Member State of departure, hereinafter referred to as the “requesting authorities”, during the enquiry procedure and before the time limit referred to in the first indent of Article 450a expires, obtain evidence by whatever means regarding the place where the events occur from which the customs debt arises, and this place is in another Member State, the customs authorities shall immediately send all the information available to the authorities responsible for that place, hereinafter referred to as the “authorities addressed”.
2. The authorities addressed shall acknowledge receipt of the communication and indicate whether they are responsible for recovery. If no response is received within 28 days, the requesting authorities shall immediately proceed with the enquiry procedure.’
51.
Articles 366 and 367 are replaced by the following:
‘Article 366
1. The proof that the procedure has ended within the time limit prescribed in the declaration may be furnished by the principal to the satisfaction of the customs authorities in the form of a document certified by the customs authorities of the Member State of destination identifying the goods and establishing that they have been presented at the office of destination or, where Article 406 applies, to an authorised consignee.
2. The Community transit procedure shall also be considered as having ended where the principal presents, to the satisfaction of the customs authorities, one of the following documents:
(a)
a customs document issued in a third country entering the goods for a customs-approved treatment or use;
(b)
a document issued in a third country, stamped by the customs authorities of that country and certifying that the goods are considered to be in free circulation in the third country concerned.
3. The documents mentioned in paragraph 2 can be replaced by copies or photocopies, certified as true copies by the body which certified the original documents, by the authorities of the third countries concerned or by the authorities of one of the Member States.
Article 367
The provisions concerning the exchanges of messages between the customs authorities using information technology and computer networks shall not apply to the simplified procedures specific to certain modes of transport and to the other simplified procedures based on Article 97(2) of the Code, referred to in Article 372(1)(f) and (g).’
52.
Articles 368a, 369, 369a, 370 and 371 are deleted.
53.
Article 372 is replaced by the following:
‘Article 372
1. Following an application by the principal or the consignee, as appropriate, the customs authorities may authorise the following simplifications:
(a)
use of a comprehensive guarantee or guarantee waiver;
(b)
use of seals of a special type;
(c)
exemption from the requirement to use a prescribed itinerary;
(d)
authorised consignor status;
(e)
authorised consignee status;
(f)
application of simplified procedures specific to goods:
(i)
carried by rail or large container;
(ii)
carried by air;
(iii)
carried by sea;
(iv)
moved by pipeline;
(g)
use of other simplified procedures based on Article 97(2) of the Code.
2. Except where otherwise provided in this section or the authorisation, where authorisation to use the simplifications referred to in paragraph 1, points (a) and (f) is granted, the simplifications shall apply in all Member States. Where authorisation to use the simplifications referred to in paragraph 1, points (b), (c) and (d) is granted, the simplifications shall apply only to Community transit operations beginning in the Member State where the authorisation was granted. Where authorisation to use the simplification referred to in paragraph 1, point (e) is granted, the simplification shall apply solely in the Member State where the authorisation was granted.’
54.
In Article 373(1), point (b) is replaced by the following:
‘(b)
regularly use the Community transit arrangements, or whose customs authorities know that they can meet the obligations under the arrangements or, in connection with the simplification referred to in Article 372(1)(e), regularly receive goods that have been entered for the Community transit procedure; and’.
55.
In Article 374, paragraph 1 is replaced by the following:
‘1. An application for authorisation to use simplifications, hereinafter referred to as “the application” shall be dated and signed. Under the conditions and in the manner which they shall determine the competent authorities shall provide that the application shall be made in writing or lodged using an electronic data-processing technique.’
56.
In Article 376, paragraph 3 is replaced by the following:
‘3. In the case of the simplifications referred to in Article 372(1)(b), (c) and (f), authorisations shall be presented whenever the office of departure so requires.’
57.
Article 379 is replaced by the following:
‘Article 379
1. The principal may use a comprehensive guarantee, or guarantee waiver, up to a reference amount.
2. The reference amount shall be the same as the amount of customs debt which may be incurred in respect of goods the principal places under the Community transit procedure during a period of at least one week.
The office of guarantee shall establish the amount in collaboration with the party concerned on the following basis:
(a)
the information on goods he has carried in the past and an estimate of the volume of intended Community transit operations as shown, inter alia, by his commercial documentation and accounts;
(b)
in establishing the reference amount, account shall be taken of the highest rates of duty and charges applicable to the goods in the Member State of the office of guarantee. Community goods carried or to be carried in accordance with the Convention on a common transit procedure shall be treated as non-Community goods.
A calculation shall be made of the amount of the customs debt which may be incurred for each transit operation. When the necessary data is not available the amount is presumed to be EUR 7 000 unless other information known to the customs authorities leads to a different figure.
3. The guarantee office shall review the reference amount in particular on the basis of a request from the principal and shall adjust it if necessary.
4. Each principal shall ensure that the amount at stake does not exceed the reference amount, taking into account any operations for which the procedure has not yet ended.
The reference amounts shall be handled and may be monitored by means of the computerised system of the customs authorities for each transit operation.’
58.
The following Article 380a is inserted:
‘Article 380a
For each comprehensive guarantee and/or each guarantee waiver:
(a)
a “guarantee reference number” linked with one reference amount shall be allocated to the principal for the use of the guarantee;
(b)
an initial access code associated with the “guarantee reference number” shall be allocated and communicated to the principal by the office of guarantee.
The principal may assign one or more access codes to this guarantee to be used by himself or his representatives.’
59.
Article 382 is replaced by the following:
‘Article 382
1. The comprehensive guarantee shall be furnished by a guarantor.
2. The guarantee document shall conform to the specimen in Annex 48. The guarantee instrument shall be retained at the office of guarantee.
3. Article 346(2) shall apply mutatis mutandis.’
60.
Article 383 is amended as follows:
(a)
paragraph 2 is replaced by the following:
‘2. The period of validity of a certificate shall not exceed two years. However, that period may be extended by the office of guarantee for one further period not exceeding two years.’
(b)
paragraph 3 is deleted.
61.
Article 384 is amended as follows:
(a)
paragraph 2 is replaced by the following:
‘2. The revocation of an authorisation to use a comprehensive guarantee or guarantee waiver by the customs authorities, and the effective date of revocation by the office of guarantee of its acceptance of a guarantor's undertaking, or the effective date of cancellation of an undertaking by a guarantor shall be entered in the computerised system by the office of guarantee.’
(b)
paragraph 3 is replaced by the following:
‘3. From the effective date of revocation or cancellation any certificates issued for the application of Article 353(2)(b) may not be used to place goods under the Community transit procedure and shall be returned by the principal to the office of guarantee without delay.
Each Member State shall forward to the Commission the means by which certificates that remain valid and have not yet been returned or that have been declared as stolen, lost or falsified may be identified. The Commission shall inform the other Member States.’
(c)
paragraph 4 is deleted.
62.
Article 385 is deleted.
63.
In Article 386, paragraph 2 is replaced by the following:
‘2. Principals shall enter the type, number and marks of the seals used in the transit declaration data.
Principals shall affix seals no later than when the goods are released.’
64.
In Article 387, paragraph 2 is deleted.
65.
In Article 398, the first paragraph is replaced by the following:
‘Persons wishing to carry out Community transit operations without presenting the goods and the corresponding transit declaration at the office of departure or any other authorised place may be granted the status of authorised consignor.’
66.
In Article 399, point (b) is replaced by the following:
‘(b)
the time limit available to the customs authorities after the lodging of the transit declaration by the authorised consignor in order, if necessary, that the office may carry out any necessary controls before the departure of the goods;’.
67.
Article 400 is replaced by the following:
‘Article 400
The authorised consignor shall lodge a transit declaration at the office of departure. The release of goods may not take place before the end of the time limit provided for in Article 399(b).’
68.
Article 401 is deleted.
69.
Article 402 is replaced by the following:
‘Article 402
The authorised consignor shall enter into the computerised system, where appropriate, the itinerary prescribed in accordance with Article 355(2), the period prescribed in accordance with Article 356 within which the goods must be presented at the office of destination, as well as the number, the type and the mark of the seals.’
70.
Articles 403 and 404 are deleted.
71.
Article 406 is replaced by the following:
‘Article 406
1. Persons who wish to receive at their premises or at any other specified place goods entered for the Community transit procedure without presenting them and the transit accompanying document at the office of destination may be granted the status of authorised consignee.
2. The principal shall have fulfilled his obligations under Article 96(1)(a) of the Code, and the Community transit procedure shall be deemed to have ended, when the transit accompanying document which accompanied the consignment, together with the intact goods, have been delivered within the prescribed period to the authorised consignee at his premises or at the place specified in the authorisation, the identification measures having been duly observed.
3. At the carrier's request the authorised consignee shall issue the receipt provided for in Article 362, which shall apply mutatis mutandis, in respect of each consignment delivered in accordance with paragraph 2.’
72.
In Article 407, paragraph 1 is replaced by the following:
‘1. The authorisation shall specify in particular:
(a)
the office or offices of destination responsible for the goods received by the authorised consignee;
(b)
when the authorised consignee receives, via the “Unloading permission” message, the relevant data of the “anticipated arrival record” message from the office of destination for the purpose of applying Article 361(3) mutatis mutandis;
(c)
the excluded categories or movements of goods.’
73.
Article 408 is replaced by the following:
‘Article 408
1. When the goods arrive at his premises or at the places specified in the authorisation, the authorised consignee shall:
(a)
immediately inform the office of destination responsible of the arrival of the goods by the “arrival notification” message including all incidents during transport;
(b)
wait for the “unloading permission” message before starting the unloading;
(c)
after having received the “unloading permission” message, send at the latest by the third day following the arrival of the goods, the “unloading remarks” message including all differences to the office of destination, in accordance with the procedure laid down in the authorisation;
(d)
make available or send to the office of destination a copy of the transit accompanying document which accompanied the goods according to the arrangement provided in the authorisation.
2. The office of destination shall introduce the data constituting the “control results” message in the computerised system.’
74.
Article 408a is deleted.
75.
In Article 441(1), the first subparagraph is replaced by the following:
‘1. Articles 353(5) and point 23 of Annex 37d shall apply to any loading lists which accompany the consignment note CIM or the TR transfer note.’
76.
In Article 442, paragraph 1 is replaced by the following:
‘1. Where the Community transit procedure is applicable, Articles 412 to 441 shall not preclude the use of the procedures laid down in Articles 344 to 362, 367 and point 22 of Annex 37d, and Articles 415 and 417 or 429 and 432 shall nevertheless apply.’
77.
Article 450a is replaced by the following:
‘Article 450a
The time limit referred to in the third indent of Article 215(1) of the Code shall be:
-
seven months from the latest date on which the goods should have been presented at the office of destination, unless a request for recovery within the meaning of Article 365a has been sent, in which case this period is extended by a maximum of one month, or
-
one month from the expiry of the time limit referred to in Article 365(5), where the principal has provided insufficient or no information.’
78.
In Article 450c, paragraph 1 is replaced by the following:
‘1. Where the procedure has not been discharged, the customs authorities of the Member State of departure shall, within nine months of the prescribed time limit for presentation of the goods at the office of destination, notify the guarantor that the procedure has not been discharged.’
79.
In Article 450d, the second paragraph is replaced by the following:
‘Those authorities shall inform the office of departure and the office of guarantee of all cases in which a customs debt was incurred in connection with Community transit declarations accepted by the office of departure, and of the action taken against the debtor to recover the sums concerned. Furthermore, they shall inform the office of departure of the collection of duties and other charges, in order to enable the office to discharge the transit operation.’
80.
In Article 453(2) ‘Article 314b’ is replaced by ‘Article 314’.
81.
Article 454 is replaced by the following:
‘Article 454
1. This section shall apply to the transport of goods under cover of TIR carnets within the customs territory of the Community.
2. The messages referred to in this section shall conform to the structure and particulars defined by the customs authorities in agreement with each other.
3. The TIR carnet holder shall lodge the TIR carnet data by means of a data-processing technique in accordance with the structure and corresponding particulars set out in Annexes 37a and 37c at the customs office of departure or entry.
4. On release of the goods for the TIR operation, the customs office of departure or entry shall print a transit accompanying document to be kept with Voucher No 2 and shall transmit the electronic data to the declared customs office of destination or exit using the “anticipated arrival record” message.
5. The TIR carnet particulars shall be used to determine any legal consequences arising from a discrepancy between the electronic TIR carnet data and the particulars in the TIR carnet.
6. The obligation to lodge the TIR carnet data by means of a data-processing technique may only be waived in the following exceptional cases:
(a)
the customs authorities’ computerised transit system is not functioning;
(b)
the application for lodging the TIR carnet data by means of a data-processing technique is not functioning;
(c)
the network between the application for lodging the TIR carnet data by means of a data-processing technique and the customs authorities is not functioning.
7. The waiver provided for in point (b) and (c) of paragraph 6 shall be subject to the approval of the customs authorities.’
82.
In Article 454a(2), the following point (d) is inserted:
‘(d)
use a data-processing technique to communicate with the customs office of destination.’
83.
Article 454b is replaced by the following:
‘Article 454b
1. In respect of goods arriving at his premises, or at the place specified in the authorisation referred to in Article 454a, the authorised consignee shall comply with the following obligations, in accordance with the procedure laid down in the authorisation:
(a)
he shall immediately inform the customs office of destination of the arrival of the goods by the “arrival notification” message, including information concerning any irregularities or incidents that occurred during transport;
(b)
he shall wait for the “unloading permission” message before unloading;
(c)
he shall without delay, enter the results of the unloading into his records;
(d)
he shall send at the latest on the third day following the arrival of the goods the “unloading remarks” message including information concerning any irregularities or incidents to the customs office of destination.
2. The authorised consignee shall ensure that the TIR carnet and the transit accompanying document are presented, without delay, to the customs authorities at the customs office of destination. Those authorities shall complete counterfoil No 2 of the TIR carnet and shall ensure that the TIR carnet is returned to the TIR carnet holder or to the person acting on his behalf. Voucher No 2 shall be retained by the customs office of destination or exit.
3. The date of termination of the TIR operation shall be the date of the entry into the records referred to in paragraph 1(c).
However, in cases where any irregularity or incident has occurred during transport, the date of termination of the TIR operation shall be the date of the “control results” message referred to in Article 455(4).
4. At the request of the TIR carnet holder, the authorised consignee shall issue a receipt, certifying the arrival of the goods at the premises of the authorised consignee and containing a reference to the transit accompanying document and the TIR carnet. The receipt shall not be used as proof of termination of the TIR operation within the meaning of Article 1(d) of the TIR Convention or of Article 455b.
5. The customs office of destination shall introduce the “control results” message in the computerised system.
The customs authorities shall also send the data foreseen in Annex 10 of the TIR Convention.
6. Where the authorised consignee's data processing application is not functioning, the competent authorities may permit other methods to communicate with the customs authorities at the customs office of destination.’
84.
In Article 454c, paragraph 2 is replaced by the following:
‘2. The termination of the TIR operation, within the meaning of Article 1(d) of the TIR Convention, shall have occurred when the requirements of Article 454b(1) and (2) first sentence have been met.’
85.
Article 455 is replaced by the following:
‘Article 455
1. The customs office of destination or exit shall complete counterfoil No 2, retain Voucher No 2 and the transit accompanying document and shall use the “arrival advice” message to notify the customs office of departure or entry of the arrival of the goods on the day they are presented at the customs office of destination or exit.
2. Where the TIR operation is terminated at another customs office than that declared initially in the transit declaration, the new customs office of destination or exit shall notify the arrival to the customs office of departure or entry by the “arrival advice” message.
The customs office of departure or entry shall notify the arrival to the originally declared customs office of destination or exit with the “forwarded arrival advice” message.
3. The “arrival advice” message quoted in paragraphs 1 and 2 may not be used as proof of the procedure having been terminated within the meaning of Article 455b.
4. Except where justified, the customs office of destination or exit shall forward the “control results” message to the office of departure or entry at the latest on the third day following the day the goods are presented at the customs office of destination or exit. However, where Article 454b applies, the customs office of destination shall forward the “control results” message to the customs office of departure or entry at the latest on the sixth day following the arrival of the goods to the premises of the authorised consignee.
The customs authorities shall also send the data foreseen in Annex 10 of the TIR Convention.
5. Where Article 454(6) applies, the customs authorities of the Member State of destination or exit shall return the appropriate part of Voucher No 2 of the TIR carnet to the customs authorities of the Member State of departure or entry without delay and at the latest within eight days from the date when the TIR operation was terminated.’
86.
Article 455a is replaced by the following:
‘Article 455a
1. When the customs authorities of the Member State of departure or entry have not received the “arrival advice” message by the time limit within which the goods must be presented at the customs office of destination or exit, or have not received the “control results” message within six days after the “arrival advice” message has been received, those authorities shall consider initiating the enquiry procedure in order to obtain information needed to discharge the TIR operation or, where this is not possible:
-
to establish whether a customs debt has been incurred,
-
to identify the debtor, and
-
to determine the customs authorities responsible for entry in the accounts.
2. The enquiry procedure is initiated at the latest seven days after the expiry of one of the time limits referred to in paragraph 1, except in exceptional cases defined by the Member States in agreement with each other. If the customs authorities receive information earlier that the TIR operation has not been terminated, or suspect that to be the case, they shall initiate the enquiry procedure forthwith.
3. If the customs authorities of the Member State of departure or entry have only received the “arrival advice” message, they shall initiate the enquiry procedure by requesting the customs office of destination or exit which has sent the “arrival advice” message, to transmit the “control results” message.
4. If the customs authorities at the customs office of departure or entry have not received the “arrival advice” message they shall initiate the enquiry procedure by requesting the information needed to discharge the TIR operation from the customs office of destination or exit. This office shall reply to the request within 28 days.
5. The holder of the TIR carnet shall be requested to provide the information needed to discharge the procedure at the latest 28 days after the start of the enquiry procedure with the customs office of destination or exit when the TIR operation cannot be discharged. The holder of the TIR carnet shall reply to the request within twenty-eight days. At the request of the holder of the TIR carnet this period can be extended for a further 28 days.
The customs authorities of the Member State of departure or entry shall also inform the guaranteeing association concerned, without prejudice to the notification to be made in accordance with Article 11(1) of the TIR Convention, and invite it to furnish proof that the TIR operation has terminated.
6. Where Article 454(6) applies, the customs authorities of the Member State of departure or entry shall initiate the enquiry procedure referred to in paragraph 1 whenever they have not received proof that the TIR operation has been terminated within two months of the date of the acceptance of the TIR carnet. To that end, these authorities shall send the customs authorities of the Member State of destination or exit a request together with all necessary information. If the authorities receive information earlier that the TIR operation has not been terminated, or suspect that to be the case, they shall initiate the enquiry procedure forthwith. The enquiry procedure shall also be initiated if it transpires subsequently that proof of the termination of the TIR operation was falsified and the enquiry procedure is necessary to achieve the objectives of paragraph 1.
The procedure laid down in paragraph 5 shall apply mutatis mutandis.
The customs authorities of the Member State of destination or exit shall respond within 28 days.
7. Where an enquiry procedure establishes that the TIR operation was terminated correctly, the customs authorities of the Member State of departure or entry shall discharge the procedure and shall immediately inform the guaranteeing association and the holder of the TIR carnet and, where appropriate, any customs authorities that may have initiated a recovery procedure in accordance with Articles 217 to 232 of the Code.’
87.
The following Article 455b is inserted:
‘Article 455b
1. The proof that the TIR operation has terminated within the time limit prescribed in the TIR carnet may be furnished to the satisfaction of the customs authorities in the form of a document certified by the customs authorities of the Member State of destination or exit identifying the goods and establishing that they have been presented at the customs office of destination or exit, or where Article 454a applies, to an authorised consignee.
2. The TIR operation shall also be considered as having been terminated where the TIR carnet holder or the guaranteeing association present, to the satisfaction of the customs authorities, one of the following documents identifying the goods:
(a)
a customs document issued in a third country entering the goods for a customs-approved treatment or use;
(b)
a document issued in a third country, endorsed by the customs authorities of this country and certifying that the goods are considered to be in free circulation in the third country concerned.
3. The documents mentioned in point (a) and (b) may be replaced by copies or photocopies, certified as true copies by the body which certified the original documents, by the authorities of the third countries concerned or by the authorities of one of the Member States.’
88.
Article 456 is amended as follows:
(a)
in paragraph 1 the following subparagraph is added:
‘The time limit referred to in the third indent of Article 215(1) of the Customs Code shall be seven months from the latest date on which the goods should have been presented at the customs office of destination or exit.’;
(b)
paragraph 2 is replaced by the following:
‘2. Articles 450b and 450d shall apply mutatis mutandis to the recovery procedure relating to the TIR procedure.’
89.
Article 457b is replaced by the following:
‘Article 457b
1. Where a TIR operation concerns the same goods as those specified in Article 340a or where the customs authorities consider it necessary, the customs office of departure or entry may prescribe an itinerary for the consignment.
2. The customs authorities of the Member State in which the consignment is located shall record the relevant details on the transit accompanying document and the TIR carnet counterfoil No 1 in cases where:
(a)
the itinerary is changed on application by the TIR carnet holder;
(b)
the carrier has diverged from the prescribed itinerary in the case of force majeure.
The customs office of destination or exit shall enter the relevant information into the computerised system.
3. In the cases referred in paragraph 2(b), the consignment, the transit accompanying document and the TIR carnet shall be presented without delay to the nearest customs authorities.’
90.
In Article 458(1) the last sentence of the second subparagraph is replaced by the following:
‘The Commission shall communicate this information to the other Member States via the official website of the European Union on the Internet.’
91.
In Article 496, point (c) is deleted.
92.
In Article 843 paragraph 2 is deleted.
93.
In Annex 30A, Point 1. Introductory Notes to the tables, Note 5 Simplified procedures, point 5.1, the figure ‘288’ is deleted.
94.
In Annex 37, Title I, Point A, (c) the first phrase is replaced by the following:
‘(c)
where Community rules specifically provide for their use, in particular within the framework of the Community transit procedure for the transit declaration for travellers and for the fallback procedure.’
95.
Annex 37a, Title II, Point B ‘Particulars on the data of the transit declaration’, is amended as follows:
(a)
In Data Group ‘TRANSIT OPERATION’, in the particular ‘Identity crossing border’ (box 21), the text is replaced by the following:
‘Type/Length: an ..27
The use of this attribute is optional for Member States in accordance with Annex 37.’
(b)
In Data Group ‘GOODS ITEM - SGI Codes’ (box 31), the text is replaced by the following:
‘SGI Codes
(box 31)
Number: 9
The data group shall be used if the transit declaration concerns goods referred to in the list in Annex 44c.
Sensitive goods code
(box 31)
Type/Length: n ..2
The code presented in Annex 37c shall be used if the commodity code is not enough to uniquely identify goods referred to in the list in Annex 44c.
Sensitive quantity
(box 31)
Type/Length: n ..11,3
The attribute shall be used when the transit declaration concerns goods referred to in the list in Annex 44c.’
(c)
In Data Group ‘GOODS ITEM - PACKAGES’ (box 31), the text of the attributes ‘Marks and number of packages’, ‘Kind of packages’ and ‘Number of packages’ are replaced by the following:
‘Marks and numbers of packages
(box 31)
Type/Length: an ..42
The attribute shall be used if the attribute “Kind of packages” contains other codes presented in Annex 37c than those for bulk (VQ, VG, VL, VY, VR or VO) or for “Unpacked” (NE, NF, NG). It is optional if the attribute “Kind of packages” contains one of the previously mentioned codes.
Kind of packages
(box 31)
Type/Length: a2
The packaging codes listed under Box 31 of Annex 38 shall be used.
Number of packages
(box 31)
Type/Length: n ..5
The attribute shall be used if the attribute “Kind of packages” contains other codes presented in Annex 37c than those for bulk (VQ, VG, VL, VY, VR or VO) or for “unpacked” (NE, NF, NG). It may not be used if the attribute “Kind of packages” contains one of the previously mentioned codes.’
(d)
In Data Group ‘GOODS ITEM-PRODUCED DOCUMENTS/CERTIFICATES’ (box 44), the text under ‘Number: 99’ is replaced by the following:
‘The data group shall be used for TIR messages. In other cases, it shall be used according to Annex 37. If the data group is used, at least one of the following attributes shall be used.’
96.
In Annex 37c, the following points 9 and 10 are added:
‘9.
For the attribute “Declaration type” (box 1): for TIR declarations, use the code “TIR”.
10.
For the attribute “Guarantee type” (box 52): for TIR messages use the code “B”.’
97.
Annex 37d, set out in Annex I to this Regulation, is inserted.
98.
Annex 38 is amended as set out in Annex II to this Regulation.
99.
In Annex 44a, Title I, point 1 is replaced by the following:
‘1.
Definition
1.1.
The loading list means a document having the characteristics described in this Annex.
1.2.
It can be used with the transit declaration within the framework of the application of Article 353(2).’
100.
Annex 44b is amended as follows:
(a)
point 3.1 is replaced by the following:
‘3.1.
The forms shall be printed on paper sufficiently strong to prevent easy tearing or creasing in normal use. The paper shall be white.’;
(b)
point 4.3. is replaced by the following:
‘4.3.
The forms shall show the name and address of the printer, or a mark by which it may be identified, and an identification number.’
101.
Annex 44c is replaced by the text set out in Annex III to this Regulation.
102.
Annex 45a is amended as follows:
(a)
in Chapter I, copy B of the specimen of the ‘Transit accompanying document’ is deleted.
(b)
Chapter II is replaced by the text set out in Annex IV to this Regulation.
103.
Annex 45b is amended as set out in Annex V to this Regulation.
104.
In Annex 46b, the second column of the table is amended as follows:
(a)
the observation for criterion 1 ‘Sufficient experience’ is replaced by the following:
‘Proof of sufficient experience is provided by the regular and correct use of the Community transit procedure, in the capacity of principal, over one of the following periods, prior to requesting a reduction:
-
six months for the application of Article 380(2)(a) and Article 381(1),
-
one year for the application of Article 380(2)(b) and Article 381(2)(a),
-
two years for the application of Article 380(3) and Article 381(2)(b).’;
(b)
the observation for criterion 2 ‘High level of cooperation with the customs authorities’ is replaced by the following:
‘A principal achieves a high level of cooperation with the customs authorities by incorporating in the management of his operations specific measures which thereby make it easier for the authorities to carry out checks and protect the interests involved.
Providing they satisfy the customs authorities, such measures may relate to, inter alia:
-
particular methods of completing transit declarations, or
-
the content of such declarations, with the principal providing additional information, where this is not mandatory, or
-
methods of completing the formalities for placing goods under the procedure (e.g. the principal always presenting his declarations at the same customs office).’
105.
Annex 47a is amended as follows:
(a)
point 1 is replaced by the following:
‘1.
Situations where use of the comprehensive guarantee for a reduced amount or the comprehensive guarantee may be prohibited temporarily
1.1.
Temporary prohibition of the use of the comprehensive guarantee for a reduced amount
The “special circumstances” referred to in Article 94(6) of the Code mean a situation in which it has been established, in a significant number of cases involving more than one principal and putting at risk the smooth functioning of the procedure that, in spite of the application of Article 384 and Article 9 of the Code, the comprehensive guarantee for a reduced amount referred to in Article 94(4) of the Code is no longer sufficient to ensure payment, within the prescribed time limit, of the customs debt arising when any of the goods referred to in the list in Annex 44c, are removed from the Community transit procedure.
1.2.
Temporary prohibition of the use of a comprehensive guarantee
The “large-scale fraud” referred to in Article 94(7) means a situation where it is established that, in spite of the application of Article 384, Article 9 of the Code and, where appropriate, Article 94(6) of the Code, the comprehensive guarantee referred to in Article 94(2)(b) of the Code is no longer sufficient to ensure payment, within the time limit prescribed, of the customs debt arising when any of the goods referred to in the list in Annex 44c, are removed from the Community transit procedure. In this connection account should be taken of the volume of goods removed and the circumstances of their removal, particularly if these result from internationally organised criminal activities.’;
(b)
in point 2, point 2.2 is deleted;
(c)
in point 3, the second indent is deleted;
(d)
in point 4, point 4.3. is replaced by the following:
‘4.3.
When the competent authorities grant a derogation they shall endorse box 8 of the comprehensive guarantee certificate, with the following phrase:
-
UNRESTRICTED USE - 99209’.
106.
In Annex 51b, point 1.2.1. is replaced by the following:
‘1.2.1.
Where a comprehensive guarantee may not be used because the goods are included in the list in Annex 44c, the following must be entered in box 8 of the certificate:
-
Limited validity - 99200’
107.
Annex 67 - Application and Authorisation Forms - is amended as follows:
(a)
in the second line of the heading, between the word ‘Articles’ and ‘292’, the numbers ‘253b’, ‘253c’, ‘253h’ and ‘253l’ are inserted;
(b)
after the General Remarks and before the form ‘Application for Authorisation to use a customs procedure with economic impact/end-use’, the forms and the Explanatory Notes set out in Annex VI to this Regulation are inserted;
(c)
after the form ‘Authorisation to use outward processing, Continuation form’, the heading ‘EXPLANATORY NOTES’ is replaced by the following:
‘EXPLANATORY NOTES TO THE FORM FOR CUSTOMS PROCEDURES WITH ECONOMIC IMPACT AND END-USE’
Article 2
By 1 January 2012, customs authorities shall carry out a reassessment in accordance with Article 253(8) of Regulation (EEC) No 2454/93 of authorisations for the simplified declaration or the local clearance procedure granted before the date referred to in Article 3(3) of this Regulation and issue new authorisations in accordance with Regulation (EEC) No 2454/93 as amended by this Regulation.
Article 3
1. This Regulation shall enter into force on the day following its publication in the Official Journal of the European Union.
2. Points (2), (3), (5) to (12), (27) to (48), (51) to (76), (92), (94), (95)(a)(b) and (c), (97) to (100) and (102) to (106) of Article 1 shall apply from 1 July 2008.
3. Points (1), (4), (13), (14), (16) to (24), (26), (80) to (85), (87), (89), (90), (91), (95)(d), (96), (101) and (107) of Article 1 shall apply from 1 January 2009.
4. Points (49), (50), (77), (78), (79), (86) and (88) of Article 1 shall apply from 1 July 2009.
5. Points (15), (25), and (93) of Article 1 shall apply from 1 January 2011.
6. Article 1(2) shall apply until 30 June 2009.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 17 November 2008.
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*****
COMMISSION DIRECTIVE
of 10 February 1987
amending the first Directive 80/1335/EEC on the approximation of the laws of the Member States relating to methods of analysis necessary for checking the composition of cosmetic products
(87/143/EEC)
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Economic Community,
Having regard to Council Directive 76/768/EEC of 27 July 1976 on the approximation of the laws of the Member States relating to cosmetic products (1), as last amended by Commission Directive 87/137/EEC (2), and in particular Article 8 (1) thereof,
Whereas in the light of scientific and technical data it has been found necessary to adapt the method of analysis for the determination of zinc; whereas Commission Directive 80/1335/EEC (3) should therefore be amended;
Whereas the measures laid down in this Directive are in conformity with the opinion of the Committee on the Adaptation to Technical Progress with the opinion of the Committee on the Adaptation to Technical Progress of Directives for the Removal of Technical Barriers to Trade in Cosmetics,
HAS ADOPTED THIS DIRECTIVE:
Article 1
Chapter VI in the Annex to Directive 80/1335/EEC is hereby amended as follows:
1. The following is added to point 5:
'5.13. Filter paper, Whatman No 4 or equivalent'.
2. The following is added to point 6.1:
'6.1.1. Filter, with the aid of a vacuum pump if necessary, and retain the filtrate.
6.1.2. Repeat the extraction step with a further 50 ml of distilled water. Filter and combine the filtrates.'
3. At point 6.2, the reference to the solution should read 6.1.2 instead of 6.1.
Article 2
Member States shall bring into force the laws, regulations or administrative provisions necessary to comply with this Directive not later than 1 July 1988. They shall forthwith inform the Commission thereof.
Article 3
This Directive is addressed to the Member States.
Done at Brussels, 10 February 1987.
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*****
COMMISSION REGULATION (EEC) No 975/84
of 10 April 1984
amending for the 15th time Regulation (EEC) No 2793/77 on detailed rules of application for granting special aid for skimmed milk for use as feed for animals other than young calves
THE COMMISSION OF THE EUROPEAN
COMMUNITIES,
Having regard to the Treaty establishing the European Economic Community,
Having regard to Council Regulation (EEC) No 804/68 of 27 June 1968 on the common organization of the market in milk and milk products (1), as last amended by Regulation (EEC) No 856/84 (2), and in particular Article 10 (3) thereof,
Whereas Commission Regulation (EEC) No 2793/77 (3), as last amended by Regulation (EEC) No 2838/83 (4), fixes the amount of the special aid for skimmed milk for use as feed for animals other than young calves and the maximum selling price applied by dairies; whereas, in view of changes in the market situation, this aid and the maximum selling price should be adapted;
Whereas Article 2a of Council Regulation (EEC) No 986/68 (5), as last amended by Regulation (EEC) No 1187/82 (6), states that the aid shall be fixed on the basis of the intervention price for skimmed-milk powder; whereas the conditions for granting aid should in consequence be adapted from the beginning of the milk year; whereas, on account of administrative constraints, and in particular the monthly basis on which accounting systems operate, the adaptation should come into effect from the beginning of the following month; whereas the opportunity should be taken on this occasion to adapt the system in the light of experience gained;
Whereas 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
Regulation (EEC) No 2793/77 is hereby amended as follows:
1. In Article 1 (2), '9,10 ECU per 100 kilograms' is replaced by '10,60 ECU per 100 kilograms'.
2. Article 3 (1) (c) shall read as follows:
'(c) if the dairy has adhered to:
- for this skimmed milk, a maximum ex-dairy selling price of 2,48 ECU per 100 kilograms,
- for the skimmed milk referred to at the third indent of Article 4 (1) (c) and the third indent of Article 4 (2), a maximum ex-dairy selling price of 6,13 ECU per 100 kilograms.'
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 with effect from 9 April 1984.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 10 April 1984.
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COUNCIL DECISION of 31 July 1972 setting up a Standing Committee for Agricultural Statistics (72/279/EEC)
THE COUNCIL OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Economic Community;
Having regard to the draft decision submitted by the Commission;
Whereas, for the purpose of facilitating their implementation, provision is made in acts adopted by the Council relating to agricultural statistics for a procedure establishing close cooperation between Member States and the Commission ; whereas, in order to achieve such cooperation, a Committee should be set up to carry out the duties assigned to it by such acts;
Whereas it is desirable that this Committee should consider any other question arising in connection with such acts,
HAS DECIDED AS FOLLOWS:
Article 1
A Standing Committee for Agricultural Statistics (hereinafter called the "Committee") is hereby set up ; it shall consist of representatives of the Member States with a representative of the Commission as Chairman.
Article 2
The Committee shall carry out the duties assigned to it by the provisions adopted by the Council in the field of agricultural statistics in the cases and under the conditions provided for therein. It may, moreover, consider any other question arising in connection with such provisions and referred to it by the Chairman either on his own initiative or at the request of a Member State.
Article 3
The Committee shall adopt its own rules of procedure.
Done at Brussels, 31 July 1972.
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COMMISSION REGULATION (EC) No 432/2007
of 20 April 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 21 April 2007.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 20 April 2007.
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Commission Regulation (EC) No 2571/2001
of 20 December 2001
fixing the amount of the carry-over aid and the flat-rate aid for certain fishery products for the 2002 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), as amended by Commission Regulation (EC) No 939/2001,
Having regard to Commission Regulation (EC) No 2814/2000 of 21 December 2000 laying down detailed rules for applying Council Regulation (EC) No 104/2000 relating to the grant of carry-over aid for certain fishery products(2), and in particular Article 5 thereof,
Having regard to Commission Regulation (EC) No 939/2001 of 14 May 2001 laying down detailed rules for the application of Council Regulation (EC) No 104/2000 relating to the grant of flat-rate aid for certain fishery products(3), and in particular Article 5 thereof,
Whereas:
(1) Regulation (EC) No 104/2000 provides that aid may be granted for quantities of certain fresh products withdrawn from the market and either processed to stabilise them and stored or preserved.
(2) The purpose of this aid is to give suitable encouragement to producers' organisations to process or preserve products withdrawn from the market so that their destruction can be avoided.
(3) The aid level should not be such as will disturb the balance of the market for the products in question or distort competition.
(4) The aid level must not exceed the technical and financial costs associated with the operations essential to stabilising and storage recorded in the Community during the fishing year preceding the year in question.
(5) The measures provided for in this Regulation are in accordance with the opinion of the Management Committee for Fishery Products,
HAS ADOPTED THIS REGULATION:
Article 1
For the 2002 fishing year, the carry-over aid referred to in Article 23 of Regulation (EC) No 104/2000 and the flat-rate aid referred to in Article 24(4) of that Regulation shall be as indicated in the Annex to this Regulation.
Article 2
This Regulation shall enter into force on 1 January 2002.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 20 December 2001.
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Commission Regulation (EC) No 297/2002
of 15 February 2002
fixing the maximum export refund on wholly milled long grain rice in connection with the invitation to tender issued in Regulation (EC) No 2010/2001
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 Regulation (EC) No 1987/2001(2), and in particular Article 13(3) thereof,
Whereas:
(1) An invitation to tender for the export refund on rice was issued pursuant to Commission Regulation (EC) No 2010/2001(3).
(2) Article 5 of Commission Regulation (EEC) No 584/75(4), as last amended by Regulation (EC) No 299/95(5), allows the Commission to fix, in accordance with the procedure laid down in Article 22 of Regulation (EC) No 3072/95 and on the basis of the tenders submitted, a maximum export refund. In fixing this maximum, the criteria provided for in Article 13 of Regulation (EC) No 3072/95 must be taken into account. A contract is awarded to any tenderer whose tender is equal to or less than the maximum export refund.
(3) The application of the abovementioned criteria to the current market situation for the rice in question results in the maximum export refund 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
The maximum export refund on wholly milled long grain rice to be exported to certain third countries pursuant to the invitation to tender issued in Regulation (EC) No 2010/2001 is hereby fixed on the basis of the tenders submitted from 8 to 14 February 2002 at 297,50 EUR/t.
Article 2
This Regulation shall enter into force on 16 February 2002.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 15 February 2002.
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COMMISSION REGULATION (EEC) No 21/92 of 7 January 1992 concerning the stopping of fishing for saithe by vessels flying the flag of Denmark
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 amended by Regulation (EEC) No 3483/88 (2), and in particular Article 11 (3) thereof,
Whereas Council Regulation (EEC) No 3926/90 of 20 December 1990 fixing, for certain fish stocks and groups of fish stocks, the total allowable catches for 1991 and certain conditions under which they may be fished (3), as last amended by Regulation (EEC) No 3602/91 (4), provides for saithe quotas for 1991;
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 saithe in the waters of ICES divisions II a (EC zone), III a; III b, c and d (EC zone) and IV by vessels flying the flag of Denmark or registered in Denmark have reached the quota allocated for 1991; whereas Denmark has prohibited fishing for this stock as from 13 December 1991; whereas it is therefore necessary to abide by that date,
HAS ADOPTED THIS REGULATION:
Article 1
Catches of saithe in the waters of ICES divisions II a (EC zone), III a; III b, c and d (EC zone) and IV by vessels flying the flag of Denmark or registered in Denmark are deemed to have exhausted the quota allocated to Denmark for 1991.
Fishing for saithe in the waters of ICES divisions II a (EC zone), III a, III b, c and d (EC zone) and IV by vessels flying the flag of Denmark or registered in Denmark 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 entry into force 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 13 December 1991. This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 7 January 1992.
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COMMISSION REGULATION (EC) No 97/2006
of 19 January 2006
fixing the maximum export refund on common wheat in connection with the invitation to tender issued in Regulation (EC) No 1059/2005
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 13(3) thereof,
Whereas:
(1)
An invitation to tender for the refund for the export of common wheat to certain third countries was opened pursuant to Commission Regulation (EC) No 1059/2005 (2).
(2)
In accordance with Article 7 of 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), the Commission may, on the basis of the tenders notified, decide to fix a maximum export refund taking account of the criteria referred to in Article 1 of Regulation (EC) No 1501/95. In that case a contract is awarded to any tenderer whose bid is equal to or lower than the maximum refund.
(3)
The application of the abovementioned criteria to the current market situation for the cereal in question results in the maximum export refund being 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
For tenders notified from 13 to 19 January 2006, pursuant to the invitation to tender issued in Regulation (EC) No 1059/2005, the maximum refund on exportation of common wheat shall be 9,00 EUR/t.
Article 2
This Regulation shall enter into force on 20 January 2006.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 19 January 2006.
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COMMISSION REGULATION (EEC) No 419/93 of 25 February 1993 amending Regulation (EEC) No 685/69 on detailed rules of application for intervention on the market in butter and cream
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Economic Community,
Having regard to Council Regulation (EEC) No 804/68 of 27 June 1968 on the common organization of the market in milk and milk products (1), as last amended by Regulation (EEC) No 2071/92 (2), and in particular Articles 6 (7) and 7a (1) and (3) thereof,
Whereas Title III of Commission Regulation (EEC) No 685/69 (3), as last amended by Regulation (EEC) No 3346/92 (4), lays down the detailed rules on the granting of aid for private storage of butter and cream; whereas Article 24 (3) (c) fixes compensation per day of contractual storage calculated by reference to 92 % of the intervention price for butter and to interest rates;
Whereas the maximum buying-in price determined by tender in accordance with Commission Regulation (EEC) No 1589/87 (5), as last amended by Regulation (EEC) No 3591/92 (6), has for a long time been fixed at 90 % of the intervention price; whereas the percentage of 92 % on the basis of which compensation for interest is calculated should be amended to bring it into line with the maximum buying-in-price;
Whereas 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
In Article 24 (3) (c) of Regulation (EEC) No 685/69, '92 %' is hereby replaced by '91 %'.
Article 2
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 contracts concluded after its entry into force.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 25 February 1993.
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COMMISSION REGULATION (EC) No 293/2009
of 8 April 2009
fixing the maximum export refund for butter in the framework of the standing invitation to tender provided for in Regulation (EC) No 619/2008
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
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), and in particular Article 164(2), in conjunction with Article 4, thereof,
Whereas:
(1)
Commission Regulation (EC) No 619/2008 of 27 June 2008 opening a standing invitation to tender for export refunds concerning certain milk products (2) provides for a standing invitation to tender procedure.
(2)
Pursuant to Article 6 of Commission Regulation (EC) No 1454/2007 of 10 December 2007 laying down common rules for establishing a tender procedure for fixing export refunds for certain agricultural products (3), and following an examination of the tenders submitted in response to the invitation to tender, it is appropriate to fix a maximum export refund for the tendering period ending on 7 April 2009.
(3)
The Management Committee for the Common Organisation of Agricultural Markets has not delivered an opinion within the time limit set by its Chair,
HAS ADOPTED THIS REGULATION:
Article 1
For the standing invitation to tender opened by Regulation (EC) No 619/2008, for the tendering period ending on 7 April 2009, the maximum amount of refund for the products and destinations referred to in Article 1(a) and (b) and in Article 2 respectively of that Regulation shall be as shown in the Annex to this Regulation.
Article 2
This Regulation shall enter into force on 9 April 2009.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 8 April 2009.
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COMMISSION REGULATION (EC) No 1290/2004
of 14 July 2004
fixing the import duties in the rice sector
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),
Having regard to Commission Regulation (EC) No 1503/96 of 29 July 1996 laying down detailed rules for the application of Council Regulation (EC) No 3072/95 as regards import duties in the rice sector (2), and in particular Article 4(1) thereof,
Whereas:
(1)
Article 11 of Regulation (EC) No 3072/95 provides that the rates of duty in the Common Customs Tariff are to be charged on import of the products referred to in Article 1 of that Regulation. However, in the case of the products referred to in paragraph 2 of that Article, the import duty is to be equal to the intervention price valid for such products on importation and increased by a certain percentage according to whether it is husked or milled rice, minus the cif import price provided that duty does not exceed the rate of the Common Customs Tariff duties.
(2)
Pursuant to Article 12(3) of Regulation (EC) No 3072/95, the cif import prices are calculated on the basis of the representative prices for the product in question on the world market or on the Community import market for the product.
(3)
Regulation (EC) No 1503/96 lays down detailed rules for the application of Regulation (EC) No 3072/95 as regards import duties in the rice sector.
(4)
The import duties are applicable until new duties are fixed and enter into force. They also remain in force in cases where no quotation is available from the source referred to in Article 5 of Regulation (EC) No 1503/96 during the two weeks preceding the next periodical fixing.
(5)
In order to allow the import duty system to function normally, the market rates recorded during a reference period should be used for calculating the duties.
(6)
Application of Regulation (EC) No 1503/96 results in an adjustment of the import duties as set out in the Annexes to this Regulation,
HAS ADOPTED THIS REGULATION:
Article 1
The import duties in the rice sector referred to in Article 11(1) and (2) of Regulation (EC) No 3072/95 are fixed in Annex I to this Regulation on the basis of the information given in Annex II.
Article 2
This Regulation shall enter into force on 15 July 2004.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 14 July 2004.
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Commission Regulation (EC) No 2167/2003
of 11 December 2003
fixing the maximum export refund on oats in connection with the invitation to tender issued in Regulation (EC) No 1814/2003
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 1104/2003(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 1431/2003(4), and in particular Article 4 thereof,
Having regard to Commission Regulation (EC) No 1814/2003 of 15 October 2003 on a special intervention measure for cereals in Finland and Sweden for the marketing year 2003/04(5), and in particular Article 9 thereof,
Whereas:
(1) An invitation to tender for the refund for the export of oats produced in Finland and Sweden for export from Finland or Sweden to all third countries except Bulgaria, Cyprus, Estonia, Hungary, Latvia, Lithuania, Malta, Poland, the Czech Republic, Romania, Slovakia and Slovenia was opened pursuant to Regulation (EC) No 1814/2003.
(2) Article 9 of Regulation (EC) No 1814/2003 provides that the Commission may, on the basis of the tenders notified, in accordance with the procedure laid down in Article 23 of Regulation (EEC) No 1766/92, decide to fix a maximum export refund taking account of the criteria referred to in Article 1 of Regulation (EC) No 1501/95. In that case a contract is awarded to any tenderer whose bid is equal to or lower than the maximum refund.
(3) The application of the abovementioned criteria to the current market situation for the cereal in question results in the maximum export refund 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 5 to 11 December 2003, pursuant to the invitation to tender issued in Regulation (EC) No 1814/2003, the maximum refund on exportation of oats shall be EUR 18,97/t.
Article 2
This Regulation shall enter into force on 12 December 2003.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 11 December 2003.
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*****
COMMISSION DECISION
of 2 December 1988
relating to a proceeding under Article 85 of the EEC Treaty
(IV/31.697, Charles Jourdan)
(Only the French text is authentic)
(89/94/EEC)
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Economic Community,
Having regard to Council Regulation No 17 of 6 February 1962, First Regulation implementing Articles 85 and 86 of the Treaty (1), as last amended by the Act of Accession of Spain and Portugal, and in particular Articles 6 and 8 thereof,
Having regard to the application for negative clearance and the notification submitted on 5 November 1985 by Société Anonyme des Chaussures Seducta Charles Jourdan et Fils, 1 Boulevard Voltaire, F-26017 Romans, Charles Jourdan Holding AG, Spielhof 3, CH-8750 Glarus and Société Anonyme Xavier Danaud, Zone Industrielle de Charnas, F-07100 Annonay, in respect of a network of standard-form franchise and franchise-corner distribution agreements covering or intended to cover the Member States,
Having regard to the summary of the notification published (2) in accordance with Article 19 (3) of Regulation No 17,
Having consulted the Advisory Committee on Restrictive Practices and Dominant Positions,
Whereas:
I. THE FACTS
A. The undertaking
(1) Charles Jourdan Holding AG is a company constituted under Swiss law whose registered office is situated at Spielhof 3, 8750 Glarus (Switzerland). It is itself owned by the Swiss holding company Portland Cement Werke (PCW). Charles Jourdan AG with its affiliates, hereinafter referred to as the Charles Jourdan Group, owns, in whole or in part, a large number of companies in France, in the rest of the Community and outside the Community. These include in particular 'Société Anonyme des Chaussures Seducta Charles Jourdan et Fils' and 'Société Anonyme Xavier Danaud', which, together with Charles Jourdan AG, have notified the agreements which are the subject of this Decision.
- Société Anonyme des Chaussures Seducta Charles Jourdan et Fils notified the franchise and franchise-corner agreements relating to the Charles Jourdan trade mark (shoes and handbags) in France,
- Société Anonyme Xavier Danaud notified the franchise agreements covering the Xavier Danaud trade marks (shoes and handbags) in France and the franchise-corner agreements covering the Xavier Danaud trade mark (shoes and handbags) in France,
- Charles Jourdan Holding AG notified the franchise agreements covering the Charles Jourdan trade mark (shoes and handbags) and the Xavier Danaud trade mark (shoes and handbags) outside France.
(2) The Charles Jourdan Group mainly manufactures and distributes shoes and leather goods (some 80 % of its turnover) and handbags (9 % of its turnover). It also distributes ready-to-wear clothing and accessories under its own trade mark, and these account for the remainder of its turnover.
In 1984, the Group achieved 55 % of its turnover in France and sold 1 685 000 pairs of shoes and 136 000 handbags. In 1987 the Group sold 1,1 million pairs of shoes.
The Group's turnover amounted to FF 896 943 000 in 1984 and FF 941 774 000 in 1985. In 1987 the turnover amounted to about FF 700 000 000.
The turnover of Portland Cement Werke amounted to SwF 568 000 000 in 1985.
B. The product and the market
(3) The Group's main activity is the production and sale of shoes, in particular medium and top quality shoes. The articles in the middle of the range lie roughly within a retail price range of FF 400 to FF 700, while the top quality articles cost over FF 700. On the basis of this distinction, although approximate, articles bearing the Seducta trade mark may be regarded as top category and those bearing the Charles Jourdan, Christian Dior or Xavier Danaud trade marks as falling within the second category. A proportion of the Group's shoe production (around 10 %) is subcontracted. The shoe trade marks distributed by the Charles Jourdan Group are Charles Jourdan, Seducta, Christian Dior and Xavier Danaud.
Another of the Group's activities is the production, partly through subcontracting, and the sale of leather goods (handbags, but also belts, luggage, gloves, etc.).
The accessories marketed by the group are generally produced through subcontracting. These include umbrellas, scarves, glasses, perfumes, tights, socks, ties, hats, watches, pens and jewellery. They are designed by the Charles Jourdan Group's stylists.
Lastly, the Charles Jourdan Group distributes under its trade mark a collection of ready-to-wear clothing for men and women that is produced entirely through subcontracting.
(4) The shoe market:
Community production amounted to some 1 200 million pairs of shoes in 1986, almost half of which were manufactured in Italy and some 200 million of which were manufactured in France. In 1986, Community imports amounted to 345 million pairs and exports to 260 million pairs. In the case of France, manufacturers exported a quarter of their production, but more than one in every two pairs of shoes (54 %) worn in France is imported.
The Community market, and in particular the French market, is therefore amply open to exports and imports.
There are a large number of smaller producers: out of a total of 423 French firms in 1982, only 15 employed more than 500 persons. However, the latter firms accounted for 25 % of total French production, with Eram and GEP heading the field.
Charles Jourdan's European competitors in the production of top-of-the-range shoes include Bally, Kelian, Carel, Manfield, Pinet, Clergerie, Maud Frison and Céline.
Its European competitors in the production of middle-of-the-range shoes include Mirelli, France Arno, Salamander, Heyraud, Raoul and Dressoir.
Competition from producers within the Community (Italy and Spain), though also from non-Community countries (Hong Kong, Taiwan, Singapore and South Korea), is very strong.
These comments also apply to distribution, where competition is fierce not only among sales outlets, but also among distribution networks.
In France, the bulk of footwear products is still distributed by independent retailers. Some independent retailers have formed themselves into joint buying pools (e.g. Cédaf, UCF, etc.) or operate on a franchise basis (e.g. Eram, GEP, Labelle, Charles Jourdan).
Shoes are also sold through the subsidiaries of manufacturing firms (e.g. Bata, Bally, Eram, Myris, André and Charles Jourdan) and purely distributive firms (e.g. Raoul, France Arno and Manfield).
Lastly, shoes are also sold through a number of non-specialist outlets, such as supermarkets, mail order firms and department stores.
In the case of leather goods the number of individual French and European manufacturers is even larger, since this sector includes craft industry as well as industry proper. Competition from Asian countries is very keen in the case of medium quality products. Distribution is widely scattered amongst specialized shops, bazaars, supermarkets, etc.
In the case of leather goods, the Charles Jourdan Group is the third largest French producer.
(5) The Charles Jourdan Group's share of the French shoe market as a whole is around 1 %. Its share of the Community market is negligible. However, if one takes the market in medium and top quality shoes, the Group's market share may be estimated at nearly 10 % of the French market and around 2 % of the Community market. This market definition is not rigorous but it allows non-leather shoes and cheap shoes to be excluded.
The market share of the other products marketed by the group is insignificant both in France and at the Community level.
C. Distribution of the Group's products
(6) The distribution of the Charles Jourdan Group's products has to meet a number of requirements specific to the products and to the Group. Firstly, it is carried out by traders capable of dealing with a demanding clientele having above-average purchasing power. Secondly, close links are kept up between retailers and the Group so as to maintain a uniform style and approach to customers.
(7) Distribution is carried out through four types of shops:
- branches: these are owned and managed by the Group and display the Charles Jourdan or Xavier Danaud shop sign. They constitute the shop window of the group's activities. In general, they also market all the products in the Charles Jourdan range
- franchised shops: these are independent of the Group, but have signed a franchise distribution agreement with it, allowing them to display the Charles Jourdan or Xavier Danaud shop sign on the outside of their shop premises in respect of the whole of the shop and allocating them a specified territory,
- franchise-corner retailers: these are independent traders who have signed a distribution agreement with the Group, allowing them to represent the Charles Jourdan or Xavier Danaud trade marks within a specified territory in a separate part of the shop premises, the articles in question being in competition with those of other brands. The shop sign must be displayed within the shop and not on the outside, as in the case of franchised shops.
Because of the franchise-corner retailer's more limited commitment to the Group compared with franchised retailers, there is a difference in the rights and duties of each of the partners. The franchise-corner formula, which combines certain characteristics of franchise retailing and conventional retailing, is intended either, if chosen by the retailer, to allow the franchise-corner retailer to maintain greater independance from the group or, if chosen by the Group, to test the franchise-corner retailer's personal and professional capacity before giving him a franchise,
- traditional retailers: they have no legal link with the Group apart from agreements to sell articles bearing the trade mark. Such retailers are selected by the Charles Jourdan Group on the basis of objective considerations, namely the shop in which the activity is carried out, the quality of the products distributed and the retailer himself, his competence and reputation.
D. Main features of the standard-form agreements notified
(8) Procedure for choosing the Group's franchisees and franchise-corner retailers
The agreements are concluded intuito personae on the basis of the candidate's personal and professional qualities. The agreement may not be transferred to a third party without the approval of the Group. Any manager employed to run a shop must be approved in advance by the Group.
(9) Legal independence of franchisees and franchise-corner retailers
Franchisees and franchise-corner retailers are the owners of, and legally and financially responsible for, their businesses and fittings.
However, any change in the geographical location or in the internal or external fittings of the shop must be approved in advance by the Group.
(10) Exclusive territory
Each agreement defines the exact territory of the franchisee or franchise-corner retailer.
Within the franchisee's territory, the franchisee is allowed to operate his shop, under the external shop sign of one of the Group's trade marks and may distribute the relevant products only on the premises defined in the agreement.
Within the franchise-corner retailer's territory, the franchise-corner retailer is allowed to operate part of his shop under the internal shop sign of one of the Group's trade marks and may distribute the relevant products only on the premises defined in the agreement. There may be several traditional retailers and/or franchise-corner retailers within the territory of a franchisee. However, there cannot be more than one franchisee within one and the same territory.
(1) OJ No 13, 21. 2. 1962, p. 204/62.
(2) OJ No C 220, 24. 8. 1988, p. 2.
(11) Transfer of know-how from the Charles Jourdan Group to franchisees and franchise-corner retailers
Franchisees receive know-how and continuous assistance from the Charles Jourdan Group in the following areas:
- purchasing (season's collection; standard order; trends; colours and materials in fashion), with information being provided to the retailer on the latest fashion trends,
- supply of the general decoration concept, with help being provided on the decoration or redecoration of the shop,
- establishment and maintenance of stock and management information, with assistance being provided on the internal management of the shop,
- provision of information on the sale of products in the 'affiliates and franchisees' networks, with information being given on the business activity of sales outlets distributing the same products,
- advertising, with material help or advice being provided on the advertising policy of franchisees.
The know-how thus made available is primarily commercial although it also covers management aspects. It is substantial and gives the trader a clear advantage over competitors. It is this, in addition to the prestige of the trade mark, which prompts actual or would-be independent traders to conclude such agreements with the Charles Jourdan Group.
Franchise-corner retailers only receive information on purchasing and fashion trends from the Charles Jourdan Group. Such information is both more limited and covers fewer fields than that provided for franchisees. No provision is made for management assistance.
All the information supplied to franchisees or franchise-corner retailers is confidential.
(12) Industrial property rights
The Charles Jourdan Group remains the owner of its registered trade marks and of its designs, trade names, signs, emblems, symbols and other distinctive commercial marks. It alone may decide on the use made of them.
(13) Right of inspection by the Charles Jourdan Group
Franchisees and franchise-corner retailers must make their accounts available to the Group and must each month send in a statement of sales and quantities sold for the previous month. They must allow inspections to be carried out of their staff and business premises, including premises for storage. The inspection may also relate to whether the franchisee is meeting the quality standards associated with the name and reputation of the goods.
(14) Financial obligations to the Charles Jourdan Group
In exchange for the franchisor supplying the general decoration concept, the overall building plan, samples of materials, the specification, and the assistance of the decorator, the franchisee has to pay an entry fee of FF 20 000 to FF 30 000 depending on the trade mark involved. The costs of fitting out and equipping the shop are borne by the franchisee or the franchise-corner retailer. No entry fee is required from franchise-corner retailers, who have to pay only a guarantee deposit.
In return for the rights granted and the services supplied, the franchisee must also pay the franchisor, depending on the trade mark involved, a franchise fee of 1,5 or 2 % of the total amount of net sales, excluding tax, for the shop. In the case of franchise-corner retailers, the fee is set at 1 % of the shop's total sales, excluding tax. In practice, at least 50 % of such sales are accounted for by products bearing the Group's trade marks.
(15) Non-competition clause
In the case of franchise agreements, the non-competition clause prohibits the franchisee from operating within the allocated territory any other shop franchised by companies other than those of the Charles Jourdan Group, unless such other shop sells articles which because of their price and style cannot be regarded as competing with Charles Jourdan products.
Within the shop itself, the franchisee may distribute only products bearing the trade marks covered by the agreement and the Group's other trade marks. The franchisee may, however, be authorized by the Group to distribute other articles originating outside the Group.
In the case of agreements with franchise-corner retailers, there is a clause prohibiting them from displaying or selling products which, because of their trade mark, name or presentation, would be likely to detract from the Charles Jourdan Group's brand image.
Upon expiry of the agreements, the trader is not subject to any restrictions in his subsequent activities. Where a franchised shop is to be sold, the first offer must be made to the franchisor, who has a period of one month in which to decide whether to buy it.
(16) Supply arrangements
The trader may obtain direct supplies of products bearing the Charles Jourdan Group's trade marks either from the group itself, or from a Group branch shop, or from another member of the network, whether such a member is a franchisee or franchise-corner retailer, or even from a traditional retailer of products bearing the Group's trade marks, whether or not such suppliers are established in the same Member State. As a general rule, cross-supplies between distributors of products bearing the Group's trade marks are allowed, provided that the principal activity of the franchisee or franchise-corner retailer is not that of wholesaler. This possibility was granted to these Charles Jourdan Group retailers at the Commission's request.
(17) Purchase prices
Within one and the same Member State purchase prices are the same for all franchisees, franchise-corner retailers and traditional retailers. However, quantity rebates may be granted.
Variations in purchase prices from one Member State to another are due to the costs of distribution, transit, exchange, etc. involved in export operations.
(18) Selling prices
The Charles Jourdan Group draws up price lists every season. The price lists are intended for guidance purposes and retailers are not required to abide by them. This freedom for retailers to determine their selling prices was expressly specified in the agreements at the Commissions's request.
(19) Duration of the agreements
All the agreements are concluded for an initial term of five years.
(20) Termination of the agreements
The Charles Jourdan Group may terminate a franchise agreement or an agreement with a franchise-corner retailer if the trader's assets are placed in the hands of the receiver or the trader goes into liquidation, if the shop is transferred to other premises or altered, or if sales are insufficient. In the event of breach of any of the clauses of the agreements, the Charles Jourdan Group or its partner, the franchisee or the franchise-corner retailer, may terminate the contract.
(21) Effects of termination or expiry of the agreement
Franchisees or franchise-corner retailers are not subject to any restrictions on the exercise of their future activities. They may continue to distribute similar or competing products within the same geographical area and in the same shop.
They are merely required to remove all shop signs and advertising displays from their shops, to modify the fittings associated with the activity of franchisee or franchise-corner retailer and to hand over to the Charles Jourdan Group all printed matter, labels, packing materials, etc. bearing the trade marks, excluding any supplies necessary for the disposal for remaining merchandise in stock.
(22) Observations from third parties
The Commission received no observations following its publication of a notice in accordance with Article 19 (3) of Regulation No 17.
II. LEGAL ASSESSMENT
A. Article 85 (1)
(23) Through the standard-form distribution agreements notified, the Charles Jourdan Group:
- grants to its franchisees and franchise-corner retailers, within a territory specified in the agreement, the exclusive right to use in a retail shop its identifications (shop signs, trade mark, business name) and its designs and models for the purposes of selling. This results in a uniform presentation of the products marketed within the network. The exclusive right applies to the shop sign on the outside of the shop and to the shop sign inside the shop in the case of franchise-corner retailers,
- transfers to its franchisees and its franchise-corner retailers know-how consisting of a body of commercial and management knowledge previously tried and tested by the Charles Jourdan Group itself and not divulged to third parties and of continuous assistance. The technical and business know-how is updated in the light of the results of the experience acquired by the Charles Jourdan Group.
(24) The Charles Jourdan Group is able to develop a coherent and efficient sales network without massive investments, while at the same time maintaining control over the activity of the sales outlets.
This formula allows franchise retailers not already experienced in the distribution of articles bearing the trade mark to benefit from the franchisor's know-how and experienced franchise retailers, in addition to this advantage, to concentrate all their efforts on marketing the products of the Charles Jourdan Group, whose reputation is enough to guarantee them a clientele.
The formula enables franchise-corner retailers to benefit from the Group's know-how and from the reputation of the Charles Jourdan Group's trade marks, while at the same time maintaining a large degree of business autonomy thanks to the distribution of competing trade marks in their shops. (25) The standard-form franchise agreements or franchise-corner retailer agreements which the Charles Jourdan Group has signed or intends to sign with its franchisees or franchise-corner retailers are agreements between undertakings within the meaning of Article 85, the Charles Jourdan Group and each of its partners remaining independent untertakings.
(a) Clauses not covered by Article 85 (1)
Franchise agreements
(26) The Court of Justice in the Pronuptia judgment (1), and the Commission in the Pronuptia (2), Yves Rocher (3) and Computerland (4) Decisions, took the view that clauses which are essential to prevent the know-how supplied and assistance provided by the franchisor from benefiting competitors and clauses which provide for the control that is essential for preserving the common identity and reputation of the network, operating under the shop sign do not constitute restrictions of competition within the meaning of Article 85 (1).
(27) The clauses that are essential to prevent the know-how made available from benefiting competitors are the following:
- the clause providing for non-competition during the term of the agreement prohibits the franchisee from operating any other franchised shop within the allocated territory, unless such other shop sells products that are unrelated to the products of the Charles Jourdan Group. This clause is justified for the franchisee by the fact that the know-how provided could easily be used for the benefit of other products and other trade marks under another franchise system. The franchisee is not bound by any non-competition clause once the agreement has expired. Such a non-competition clause would not be justified first as the know-how provided includes a large element of general commercial techniques, and second, as this type of franchise is primarily granted to retailers who are already experienced in selling shoes,
- the provision prohibiting the franchisee from transferring its franchise contract, subletting its shop, setting up a sub-franchise, placing its business under management by a third party or appointing a salaried shop manager without the express approval of the Charles Jourdan Group enables the Charles Jourdan Group to ensure that the franchisee possesses the professional qualities necessary for the exercise of its functions, but also that persons not belonging to the Charles Jourdan network do not benefit from the advantages inherent in the distribution system being examined here.
(28) The clauses that provide for the control essential to preserve the common identity and reputation of the network trading under the franchisor's name are as follows:
- obligation on the franchisee to carry on his business activity from premises fitted out according to the indications and advice of the group. This makes it possible to ensure the consistency, commercial homogeneity and reputation of the sales outlets of the Charles Jourdan Group's network,
- obligation on the franchisee to cooperate with the Charles Jourdan Group. This obligation relates principally to advertising, which must be carried out in agreement with the Charles Jourdan Group so as to maintain the Group's brand image and the quality of the management of the sales outlet, so as to prevent bad management from harming the interests of the trade marks represented,
- ban on the franchisee reselling the Charles Jourdan Group's goods to traders other than franchisees, franchise-corner retailers or retailers supplied by the Group. This clause is intended to maintain the unity of the network and the link, in the consumer's mind, between the Charles Jourdan Group's product and the place where it is sold,
- obligation on the franchisee unless otherwise authorized by the Group, in view of the nature of the products concerned (fashion goods) and in order to preserve the consistency of the brand image, to order the goods connected with the essential object of the franchise business exclusively from the Charles Jourdan Group or from suppliers designated by it. The franchisee may purchase the goods in question from any other franchisee, franchise-corner retailer or traditional retailer belonging to the Charles Jourdan network,
- obligation on the franchisee to submit to checks by the Charles Jourdan Group. The Group's right of scrutiny of the management of its retailers is a counterpart to the responsibilities delegated by the Charles Jourdan Group to its partners.
(1) Case 161/84 Pronuptia [1986] ECR 353.
(2) OJ No L 13, 15. 1. 1987, p. 39.
(3) OJ No L 8, 10. 1. 1987, p. 49.
(4) OJ No L 222, 10. 8. 1987, p. 12.
(29) As regards retail prices, which are only recommended, it should be emphasized that the mere communication of recommended prices by the group to its retailers cannot be regarded as restriting competition, provided that it does not result in concerted practices between retailers in the network or between retailers and the Charles Jourdan Group.
(30) The lack of any obligation on the Group to define and abide by selection criteria in choosing its franchisees is due to the desire to establish an integrated and interdependent distribution network to which each trader, with his professional and personal capacities, has chosen to belong. The continuous assistance which the franchisee receives during the term of the agreement implies a significant involvement of the Group's representatives with each of the traders. The members of the distribution network must therefore be limited in number. Consequently, the Group can of its own accord choose the traders which seem to it most suitable for maintaining the cohesion of the network.
Franchise-corner retailer agreements
(31) The clauses not covered by Article 85 (1) are firstly those which provide the Group with the essential control needed to perserve the common identity and reputation of the network symbolized by the shop sign within the shop: the franchise-corner retailer must carry out his activity in the part fitted out in accordance with the Group's directives. He must also cooperate with the Group in matters of advertising and management. He cannot purchase the goods from or resell the goods to traders other than those who are already members of the Group's distribution network. Lastly, the franchise-corner retailer must submit to checks by the Charles Jourdan Group.
The franchise-corner retailer is not subject to any non-competition obligation. Nevertheless he cannot display or sell in his shop products liable to detract from the Charles Jourdan Group's brand image. He is free to market other trade marks. This clause is justified by the quality of the Charles Jourdan Group's products, necessitating proper presentation. In view of the highly competitive situation in the sector, this restriction is not likely to have any significant effect on competition.
The agreement is automatically terminated in the event of transfer, management by a third party, control of the company by a third party or appointment of a salaried shop manager without the express approval of the Charles Jourdan Group, so as to ensure that the franchise-corner retailer has the necessary qualities and the advantages of the formula do not benefit a third party.
(b) Clauses covered by Article 85 (1)
Franchise agreements
(32) The clauses that involve market sharing between the Charles Jourdan Group and its partners or between its partners themselves constitute restrictions of competition within the meaning of Article 85 (1). This applies to:
- the exclusivity granted to the franchisee to operate under the franchisor's trade marks in a given sales area,
and
- the obligation on the franchisee to carry on his business activity exclusively from the premises approved for that purpose.
The combined effect of these clauses is to afford each franchisee relative protection against competition from other franchisees within its sales area. However, such protection is restricted by the fact that, while there may be only one franchisee within a given area, there may be several franchise-corner retailers and traditional retailers within the area.
(33) The franchise agreements may affect trade between Member States as they constitute the basis of a network wich is bound to spread over the whole Community and as the franchisees are not allowed to become established in another Member State.
Franchise-corner retailer agreements
(34) The exclusive right to display an internal shop sign within the shop, does not, within the territory, exclude either branch shops or franchise shops, which have, in addition, an external shop sign. Nor does such exclusive right exclude the display of Charles Jourdan Group trade marks in traditional retail shops. The contracts only restrict the retailer a little and, on a highly competitive market, offer very limited protection against competition within the network.
(35) Since, in addition, the number of franchise-corner retailers was very low on the date when the agreements were notified and since the number of franchise-corner retailers is not, according to the Charles Jourdan Group, going to increase significantly, they are not likely to affect trade between Member States, or significantly to prevent, restrict or distort competition within the common market. The provisions of Article 85 (1) do not therefore apply to the franchise-corner agreements. B. Article 85 (3)
(36) Commission Regulation (EEC) No 1983/83 (1) on the block exemption of exclusive distribution agreements does not apply to the standard-form franchise agreements in question, since their legal nature is different (2). In addition to being distribution agreements they are agreements under which the franchisor grants the franchisee the right to operate a shop using an original and evolving distribution formula. It should therefore be examined whether the agreements in question are eligible for individual exemption under Article 85 (3).
(37) Through the combined effect of their provisions as a whole, the standard-form franchise agreements governing the Charles Jourdan distribution network contribute to improving the distribution of the products concerned within the meaning of Article 85 (3). They enable:
- the Charles Jourdan Group to extend its distribution network without carrying out investment in the material fitting out of new branches, investment which it would perhaps otherwise not be able to carry out, or to carry out as rapidly, since it is the prospective franchisees which are responsible for the necessary investment,
- the Charles Jourdan Group to make available to consumers a distribution network which is uniform in the business methods used and the range of products offered. Such uniformity makes it possible to rationalize business methods by standardizing them,
- the Charles Jourdan Group, given the close and direct links which it has with its partners, to be rapidly informed by them of any changes in consumers' habits and tastes and thus to be able to take account of this in its forward plans on sales and production,
- the franchisee, who enjoys exclusive rights to use the external shop sign within the allocated territory, to concentrate his sales efforts on that territory and on the Group's trade marks,
- the franchisee to enjoy the commercial benefits of the brand image of the products and the tried and tested know-how and continuous assistance of the Charles Jourdan Group.
(38) The agreements governing the Charles Jourdan distribution network allow consumers a fair share of the benefit resulting from these improvements in distribution:
- consumers can acquire products from the Charles Jourdan Group's range in a larger number of sales outlets and countries,
- the know-how transmitted and the assistance provided by the Group to its partners ensure that consumers receive high-quality service,
- the fact that the retailers remain the owners of their businesses ensures commercial dynamism and diligence on the part of the trader.
The pressure of competition within the sector and the freedom which consumers have to purchase the products at any shop within the network will tend to force franchisees to pass on to consumers a reasonable share of the advantages resulting from the rationalization of distribution.
(39) The Charles Jourdan Group's standard-form agreements do not contain restrictions that are not indispensable to the attainment of the said benefits. The restrictive clauses that provide for some territorial exclusivity may be considered, in the circumstances, to be indispensable in that few prospective franchisees would be willing to undertake the necessary investment, to pay an initial lump-sum fee or a guarantee deposit and to pay royalties in proportion to their turnover in order to belong to such a distribution system, if they did not enjoy some territorial protection against competition from other franchisees and from the Charles Jourdan Group itself. It should be noted that the franchisees are free to buy and sell the relevant products among themselves or to sell them to and buy them from other independent retailers of the trade mark.
(40) The Charles Jourdan standard-form agreements and the system resulting from their implementation are not such as to afford the undertakings concerned the possibility of eliminating competition in respect of a substantial part of the products in question. With regard to producers and distributors that are competitors of the Charles Jourdan Group, the Charles Jourdan network cannot produce any significant horizontal anti-competitive effects outside of the trade mark, given the dispersal of the supply of products both at production level and at distribution level.
(41) The production and distribution of Charles Jourdan Group shoes, which is the Group's main activity, account for only a modest share of the French market and an even smaller share of the Community market. On the submarket for medium and top quality shoes, the Charles Jourdan Group accounts for some 10 % of the French total and only around 2 % of the Community market. Its turnover, which amounted to less than FF 1 000
million in 1985, is relatively modest compared with that of its European competitors. In addition, the footwear market, like the market for leather goods, accessories or ready-to-wear clothing is buoyant and very keenly competitive.
(42) The franchisees are, in addition, in competition with one another, since they are allowed to sell to any consumer resident within or outside the alloted territory and to any other franchisee, franchise-corner retailer or retailer of the trade mark, subject to the condition of not acting as a wholesaler by way of principal activity. Furthermore, they are entirely free to set their selling prices. The distribution network, which covers several different systems of marketing, creates a healthy rivalry between retailers, thus allowing the consumer the widest choice and hence the best purchasing conditions.
Lastly, there is no provision for any no-competition clause upon expiry or after termination of the agreements, and this enables any franchisee to continue to carry on his business activity in his own shop without any restriction once he has ended his relationship with the Group.
(43) All the conditions for the application of Article 85 (3) are thus met.
(44) The exemption decision will take effect as from the date on which the most recent amendments were made to the standard-form agreements, i. e. 17 December 1986. Exemption may be granted for a period of 10 years. This period seems justified given the limited restriction of competition resulting from the agreements and the competitive context in question,
HAS ADOPTED THIS DECISION:
Article 1
Pursuant to Article 85 (3) of the EEC Treaty, the provisions of Article 85 (1) are hereby declared inapplicable for the period from 17 December 1986 to 16 December 1996 to the standard-form of retail franchise agreements which the Charles Jourdan Group concludes with its franchisees in the Community.
Article 2
Pursuant to Article 2 of Regulation No 17, the Commission hereby certifies that there are no grounds under Article 85 (1) of the Treaty for action in respect of the standard-form 'franchise-corner retailer' agreements which the Charles Jourdan Group concludes with its 'franchise-corner retailers'.
Article 3
This Decision is addressed to:
1. La Société des Chaussures Seducta Charles Jourdan et Fils,
1 boulevard Voltaire,
F-26071 Romans
2. Charles Jourdan Holding AG,
Spielhof 3,
CH-8750 Glarus
3. La Société Xavier Danaud,
Zone Industrielle de Charnas,
F-07100 Annonay
Done at Brussels, 2 December 1988.
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Commission Regulation (EC) No 1482/2001
of 18 July 2001
altering the export refunds on white sugar and raw sugar exported in the natural state
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), and in particular the third subparagraph of Article 27(5) thereof,
Whereas:
(1) The refunds on white sugar and raw sugar exported in the natural state were fixed by Commission Regulation (EC) No 1407/2001(2).
(2) It follows from applying the detailed rules contained in Regulation (EC) No 1407/2001 to the information known to the Commission that the export refunds at present in force should be altered to the amounts set out in the Annex hereto,
HAS ADOPTED THIS REGULATION:
Article 1
The export refunds on the products listed in Article 1(1)(a) of Regulation (EC) No 1260/2001, undenatured and exported in the natural state, as fixed in the Annex to Regulation (EC) No 1407/2001 are hereby altered to the amounts shown in the Annex hereto.
Article 2
This Regulation shall enter into force on 19 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 Decision
of 20 December 2001
relating to a proceeding pursuant to Article 81 of the EC Treaty and Article 53 of the EEA Agreement
Case COMP/E-1/36.212 - Carbonless paper
(notifed under document number C(2001) 4573)
(Only the English, French, German and Spanish texts are authentic)
(Text with EEA relevance)
(2004/337/EC)
TABLE OF CONTENTS
TABLE
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to the Agreement on the European Economic Area,
Having regard to Council Regulation No 17 of 6 February 1962, First Regulation implementing Articles 85 and 86 of the Treaty(1) as last amended by Regulation (EC) No 1216/1999(2), and in particular Articles 3 and 15 thereof,
Having regard to the Commission decision of 26 July 2000 to open a proceeding in this case,
Having given the undertakings concerned the opportunity to make known their views on the objections raised by the Commission pursuant to Article 19(1) of Regulation No 17 and Commission Regulation (EC) No 2842/98 of 22 December 1998 on the hearing of parties in certain proceedings under Articles 85 and 86 of the EC Treaty(3),
Having consulted the Advisory Committee on Restrictive Practices and Dominant Positions,
Having regard to the final report of the Hearing officer in this case(4),
Whereas:
1. PART I - THE FACTS
1.1. SUMMARY OF THE INFRINGEMENT
(1) The following undertakings, addressees of the present Decision, have infringed Article 81 of the Treaty and Article 53 of the EEA Agreement:
- Arjo Wiggins Appleton Limited (AWA),
- Bolloré SA (Bolloré),
- Carrs Paper Ltd (Carrs),
- Distribuidora Vizcaína de Papeles S.L. (Divipa),
- Mitsubishi HiTech Paper Bielefeld GmbH (MHTP),
- Papelera Guipuzcoana de Zicuñaga SA (Zicuñaga),
- Papeteries Mougeot SA (Mougeot),
- Papierfabrik August Koehler AG (Koehler),
- Sappi Limited (Sappi),
- Torraspapel SA (Torraspapel),
- Zanders Feinpapiere AG (Zanders).
(2) The infringement consists of participation of the members of the Association of European Manufacturers of Carbonless Paper (AEMCP) and three other European carbonless paper producers and/or distributors in a continuing agreement and/or concerted practice, contrary to Article 81(1) of the Treaty and Article 53(1) of the EEA Agreement (from January 1994) covering the whole of the Community and the EEA, by which they fixed price increases, allocated sales quotas and fixed market shares and set up machinery to monitor the implementation of the restrictive agreements.
(3)
TABLE
1.2. THE CARBONLESS PAPER INDUSTRY
1.2.1. THE PRODUCT
(4) The product concerned in this case is carbonless paper, which is also known as self-copying paper. Carbonless paper is intended for the multiple duplication of documents and is made from a paper base to which layers of chemical products are applied(5).
(5) The principle behind carbonless paper thus involves obtaining a copy by reaction between two complementary layers under pressure of handwriting or the impact of a computer printer or typewriter. The first layer, the transmitting coated back (CB) layer, is composed of microcapsules which contain colour formers. The pressure or impact bursts the microcapsules, thus releasing these colour formers which are then absorbed by the second layer, the receiving coated front (CF) layer. This CF layer is made from a reactive substance (or "activated clay") which reacts with the colour formers to give a sharp image.
(6) The following types of carbonless paper exist:(6):
- CB (coated back) is a carbonless paper coated with a transmitting layer containing microcapsules. This sort of carbonless paper is used as the top copy of the bundle. It is available in different grades: standard, for optical character reading, or coated lightly on the back to provide a better image.
- CFB (coated front and back) is a carbonless paper coated on the front with a reactive substance, intended to act as a chemical developer, and coated on the back with microcapsules. This type of carbonless paper is used as the middle sheet or one of several middle sheets. It is the central part of the bundle, which receives and transmits the copy. It is the most delicate sheet and is available in standard grade; there are also certain grades for special applications.
- CF (coated front) is a carbonless paper used as the last sheet, which is coated with a receiving layer of reactive substance on the front but no microcapsules on the back capable of bursting under pressure. This sheet is no different to ordinary paper, at least as regards its handling, and it is less delicate than the other sheets that make up the bundle. This type is available in a standard grade, another for optical character reading, a grade receptive on both sides, and certain grades for special applications.
(7) Each of the three types of carbonless paper is available in white and other colours, especially blue, pink, yellow and green. From these families of carbonless paper one can make up bundles of all kinds by inserting carbonless paper of one type or another depending on requirements.
(8) The composition of carbonless paper alone makes it necessary to handle carbonless paper carefully and protect it from pressure. This makes it necessary to take precautions for transport, storage and printing. Nevertheless, with existing techniques carbonless papers can be glued, folded, combined with other bases (cardboard, paper, carbon, plastics), made less sensitive if necessary, marked with pencil, ballpoint pen, typewriter, computer printer, telex or printing machine, made into ordinary bundles or self-separating ones, used for applications requiring optical character reading, etc.
(9) Business forms(7) have always been the single largest application for carbonless papers, accounting for over 90 % of total consumption(8). Other applications for carbonless papers include roll converting(9).
(10) Carbonless paper is sold in reels (80 %) and sheets (20 %)(10). Most carbonless paper producers cater for sheet demand by cutting reels into sheets, whereas some small specialised producers make directly sheeted products(11).
(11) Carrs implies that the carbonless paper reels and sheets form separate relevant product markets. Carrs argues that "the market for sheets is entirely separate in commercial terms from reels - both as regards production costs, pricing and distribution channels". Carrs also says that there are substantial differences between reels and sheets, which in Carrs' case can be evidenced by the differences in the technical specification of its carbonless paper sheet product, Signal Plus. For Carrs the distinction between reels and sheets arise from an understanding of their end-use and the needs of these end-users. Ultimately this means understanding the requirements of printers and the type of printing equipment they use(12).
(12) Printers use two types of printing press: reel-fed and sheet-fed. Reel-fed presses pull the paper through a press from a continuous reel. Sheet-fed presses push sheets through the printing press machine. According to Carrs the sheet-fed press requires paper sheets that are stiffer and more resistant to stress than reel-fed printers in order to achieve less wastage and high speeds. Carrs states that most printers tend to use either reel- or sheet-fed presses, but not both. According to Carrs it is not feasible for a printer to react to any changes in the relationship between the price of sheets and reels by switching from one to the other. It also implies that the cutting of reels into sheets would not be a viable alternative for printers using sheet-fed press(13).
(13) The Commission concludes that, since the cartel covers both the carbonless paper reels and sheets, for the purposes of this case it is not necessary to further define the product market.
1.2.2. THE MARKET FOR CARBONLESS PAPER
1.2.2.1. Supply
(14) Production of carbonless papers in Europe has increasingly become dominated by a relatively small number of major producers as smaller suppliers have withdrawn from the market(14). In the EEA all main producers belong to the Association of European Manufacturers of Carbonless Paper (hereinafter AEMCP). At the time of the infringement under consideration here the following companies were AEMCP members: Arjo Wiggins Appleton (AWA), Cartiere Sottrici Binda, Copigraph(15), Papierfabrik August Koehler, Papeteries Mougeot, Stora Feldmühle (later Stora Carbonless Paper and today Mitsubishi HiTech Paper Bielefeld)(16), Zanders Feinpapiere, Sappi(17), and Torraspapel. To a large extent these producers benefit from integrated production of base paper and chemicals.
(15) According to the MHA report, prepared for the AEMCP in 1996, the size of the EU carbonless paper market was some ECU 850 million in 1995. The report estimated that in the same year the west European (EEA and Switzerland) production capacity of carbonless paper was 1010000 tonnes, of which the AEMCP members accounted for 890000 tonnes (i.e. 88 %). When east European production capacity is added to that figure the total European capacity reaches 1035000 tonnes(18).
(16) At the time of the infringement, the AEMCP members accounted together for 85-90 % of carbonless paper sales in the territory that became the EEA in 1994. Estimated market shares of each of them (except Binda, not active anymore in the market after 1993) are presented in Table 1(a).
TABLE 1(a)
Market shares of AEMCP members in 1995 based on estimates made by Sappi and AWA((File pp. 217 (Sappi's document), 3262-3265 (AWA's document).))
TABLE
(17) In addition to the AEMCP members there are a number of non-integrated small producers, including forms printers who produce for their own in-house requirements or supply mainly local markets and buy in base papers ("support") and chemicals from other suppliers(19). The principal non-AEMCP companies include Carrs (UK), Fabriano (Italy), Hauffe (Germany), Bartsch (Germany), Zicuñaga (Spain) and Divipa (Spain). This Decision is also addressed to three of these small producers, namely Carrs, Divipa and Zicuñaga. In addition, two East European companies are known to be producing carbonless papers, namely Aero (Slovenia) and Krkonosské (Czech Republic)(20).
(18) Table 1(b) presents the overall size in 2000 of each addressee of the present Decision, as well as an indication of its relative importance on the EEA-wide carbonless paper market in 1994 and 1995. The figures provided are based on the companies' responses to requests for information and estimates of the Commission(21).
TABLE 1(b)
The size of the addressees and their relative importance in the EEA carbonless paper market((All turnover figures provided in the present Decision are given in ECU or Euro, as appropriate. Exchange rates used for Euro calculation are the official yearly (or, as the case may be, monthly) mean exchange rates published by the Commission for the calculation of turnovers.))
TABLE
1.2.2.2. Demand
(19) The principal clients in the self-copying paper sector are printers, who convert carbonless paper to business forms and rolls. Some printers use reels and some sheets. In 1995 the estimated number of reels printers in Europe was 2000, and the number of sheets printers 47000(22).
(20) Reels are sold either directly to reels printers or via merchants, whereas sheets are mainly distributed via merchants.
(21) According to Sappi, merchants have considerable market power, which is mainly due to production over-capacity(23). Merchants demand uniform and regular deliveries. They also require short delivery times and adaptation of deliveries to their needs of forms and sizes, in order to reduce their own stocks(24). Carrs explains that, according to its experience, merchants generally seek price increases in the sheets business wherever possible and encourage the producer to increase its prices(25).
(22) As carbonless paper is a branded product, there is strong relationship between suppliers and merchants. Suppliers tend to have a long-term relationship with their merchants. This is at least partly due to the high cost of switching merchants due to stocks carried by them and the investments made in promotion of a brand(26).
(23) According to Sappi, AWA, Stora and Torraspapel in particular carry out part or all of the distribution function themselves or through their own merchant companies. Some small producers, mainly supplying local markets, likewise often sell direct to customers. The other carbonless producers sell mainly to independent merchants(27).
1.2.2.3. Development of supply and demand in Western Europe, 1990-1996
(24) The Western European carbonless paper market is characterised by structural over-capacity. In 1995 the capacity utilisation rate was 65 %(28). Capacity has not increased over the last decade. Demand on the other hand fell in the mid-1990s, and this decline was expected to continue(29).
(25) The demand for carbonless copy paper grew rapidly in the 1980s as it replaced one-time carbon (OTC) paper. As the European market has matured, transactions have increasingly been carried out by electronic means, and this has hit demand. In 1990 consumption of carbonless in Western Europe (territory that became EEA in 1994 and Switzerland) reached just over 700000 tonnes; thereafter the growth in demand slowed to a standstill, and in 1995 and 1996 demand started to fall(30).
(26) In the mid-1990s consumption was highest in Germany, followed by France and the United Kingdom in joint second place. Italy was the fourth largest consumer in Europe, with the Benelux countries following in fifth place(31).
(27) There were sharp short-term fluctuations in west European consumption in the 1990s. The most dramatic of these occurred in 1994/1995 and in autumn 1996. According to a study carried out for the AEMCP in 1996 by Mikulski Hall Associates, "these fluctuations were generally accepted to be due largely to changes in stocks, resulting mainly from changes in price levels". However, the study did not point to specific changes in demand or supply conditions that would explain these fluctuations. The only development that can be clearly identified from the study is that growth in carbonless demand in Western Europe has been constrained for a number of years. The study draws attention primarily to the trend towards a reduction in the number of copies for multi-part sets. The most significant factor limiting demand for carbonless, however, was the reduced requirement for multi-part forms as a result of the growing use of electronic data interchange (EDI), electronic media and bar-coding, combined with the shift to non-impact printing (laser or ink jet)(32).
(28) In Western Europe, total deliveries by AEMCP suppliers remained rather stable between 1990 and 1996, at just 600000 tonnes, while volumes supplied by non-AEMCP producers fell from 112000 tonnes in 1990 to just over 70000 tonnes in 1996. Imports from outside Western Europe halved over the same period(33). In 1990 the share of imports was 1.4 %, whereas in 1996 it had dropped to around 0.7 %. Table 2 summarises changes in deliveries to and consumption in the European market(34).
TABLE 2
Delivery and consumption of carbonless paper: Western Europe, 1990-1996
TABLE
Source:
MHA report, December 1996.
1.2.2.4. Inter-state trade
(29) In the EEA the production of carbonless paper is concentrated and mills are located in five Community Member States: Belgium, France, Germany, Spain and the United Kingdom. Generally speaking, however, producers sell throughout the EEA, and transport costs do not seem to hinder trade inside this area(35).
(30) The Commission has detailed information on sales in the territory that became the EEA in 1994, by country, covering most of the reference period of the cartel, for the following companies: AWA, Divipa, Koehler, Mougeot, Sappi, Stora, Torraspapel, Zanders and Zicuñaga(36). The data shows that at the time of the infringement more than 56 % of these companies' aggregate sales in the EEA was outside their respective domestic markets (i.e. the countries in which their production sites were located).
(31) The reference period of the cartel was also characterised by significant trade flows between the Community and different EFTA countries. In 1994, substantial quantities of carbonless paper were sold to Austria, Finland and Sweden. From 1994 onwards trade flows also existed with Iceland and Norway. There is therefore substantial cross-border trade within the whole EEA territory.
1.2.3. THE PRODUCERS
1.2.3.1. Arjo Wiggins Appleton
(32) Arjo Wiggins Appleton p.l.c. was transformed on 29 November 2001 into Arjo Wiggins Appleton Limited. It is the parent company (hereinafter AWA) of the Arjo Wiggins group, which consists of more than 150 subsidiaries worldwide and is active, among others, in the manufacture and distribution of carbonless, thermal, fine, coated and speciality papers. It has substantial operations throughout Europe and in North America, as well as interests in other parts of the world. The group is the world's largest manufacturer of carbonless paper, with shares of more than 30 % of the European market and 50 % of the North American market. Carbonless papers were organised under the divisional name of Arjo Wiggins Carbonless Paper Operation (CPO) until in 1998 a Carbonless & Thermal division was created. AWA has carbonless paper mills in Belgium, France and the United Kingdom.
1.2.3.2. Binda
(33) Cartiere Sottrici Binda S.p.A, renamed Binda S.p.A in May 1996, produced carbonless paper until October 1993. At that point Binda ceased production and reached various option agreements with AWA on the sale of its trademark "Biplura" and several machines used in the production of carbonless paper. These options have not been fully exercised and AWA has acquired in 1995 the trademark "Biplura" and one machine from Binda. Binda continued to produce release and cast coated paper until August 1998, when it was liquidated(37).
(34) In this Decision, Binda is mentioned for the purpose of the description of the factual situation. However, in view of the disappearance of this undertaking and in the absence of any legal or economic successor, it is not possible for the Commission to address this Decision to any legal or natural person for the behaviour of Binda until October 1993.
1.2.3.3. Carrs
(35) Carrs Paper Limited (Carrs) has its registered office in the West Midlands, United Kingdom. The company's immediate parent company is Carrs (Birmingham) Limited, which is incorporated in England and Wales. Carrs produces and sells carbonless paper (almost entirely sheets) in the United Kingdom, and exports predominantly to Ireland and Denmark.
(36) Carrs has been an innovator in the carbonless market and led the change from blue to black carbonless in 1983. It was the first to launch laser/copier grades in 1991. In 1992 it launched the Signal Plus brand, a product it advertised as the first printer-friendly carbonless paper.
1.2.3.4. Copigraph
(37) Copigraph SA was a wholly owned subsidiary of a French company, Bolloré SA (formerly known as Bolloré Technologies SA) until November 1998, when AWA acquired it. Copigraph SA was part of Bolloré's special papers division. Bolloré produced base paper in its mill at Thonon which was coated at Thonon, at Copigraph's Malesherbes facilities in France and at the Wülfrath facilities belonging to Eupaco grafische Papiere GmbH & Co KG in Germany (Bolloré acquired Eupaco in 1992 and closed its coating facilities in 1995)(38). When Copigraph sold the finished carbonless paper, its main markets in the EEA were France and Germany.
1.2.3.5. Divipa
(38) Distribuidora Vizcaína de Papeles S.L. (Divipa) is a Spanish company, which buys large carbonless paper reels and converts them into sheets and smaller reels for sale in Spain.
1.2.3.6. Koehler
(39) Papierfabrik August Koehler AG, with its registered office in Oberkirch, Germany, is the parent company of the privately-owned Koehler group, and owns the entire capital of Reacto Papier GmbH, Hannover, and Koehler Kehl GmbH, Kehl. Koehler produces carbonless paper, fine paper and thermal paper
1.2.3.7. Mougeot
(40) Papeteries Mougeot SA (Mougeot) is a French company which is incorporated in Laval-sur-Vologne, Vosges, France, and is controlled by the [...](39) family. Mougeot produces carbonless paper in France and its principal export markets are the United Kingdom, Germany and Austria. In addition to carbonless paper Mougeot produces sanitary and household papers and diapers that are sold under the distributors' brands
1.2.3.8. Sappi
(41) Sappi Limited (Sappi) is an international company incorporated in the Republic of South Africa. It is the parent company of the Sappi group of companies.
(42) Sappi entered the European carbonless market in 1990 with the acquisition of the Transcript manufacturing plant from DRG in the United Kingdom. After entering the market it operated in Europe through its subsidiary Sappi UK Limited that set up in 1993 with another Sappi Limited subsidiary (Hannoversche Papierfabriken Alfeld-Gronau AG) a European sales organisation as a joint venture, Sappi Europe SA. From May 1995, Sappi Europe Limited was the European holding company to which Sappi UK Limited and Hannoversche Papierfabriken Alfeld-Gronau AG report(40). In April 1998, following the acquisition of KNP Leykam (Europe's largest producer of coated woodfree paper), the Sappi group was restructured, and now operates as two operating divisions, Sappi Fine Paper plc and Sappi Forest Products. The core businesses of Sappi Fine Paper are coated and uncoated woodfree paper, mechanical paper, coated and uncoated speciality paper, and release paper. Sappi Fine Paper's operations are managed through three regional subsidiaries, Sappi Fine Paper Europe, North America and South Africa. Sappi's carbonless paper mill, the Transcript mill, is owned by Sappi UK limited, a Sappi Fine Paper plc subsidiary.
1.2.3.9. Stora
(43) In 1990 the German paper producer Feldmühle Aktiengesellschaft was taken over by Stora Kopparbergs Bergslags AB, an international industrial group incorporated in Sweden and active in the production and sale of forest industry products, in particular paper, board, pulp and sawn timber. Stora Feldmühle was Stora Kopparbergs Bergslags AB's wholly owned subsidiary. Until the end of 1992 the carbonless paper operations of the group were carried on directly by Stora Feldmühle AG that was a member of the AEMCP. At the beginning of 1993 this business was confined to a new wholly owned subsidiary of Stora Feldmühle, which was named Stora Carbonless Paper GmbH (SCP). Stora Carbonless Paper GmbH produces carbonless paper in Germany and sells it throughout Europe.
(44) In November 1998 the Commission approved a concentration between Stora Kopparbergs Bergslags AB and a Finnish forest industry group, Enso Oyj. As a result of the operation, Enso Oyj acquired 100 % of the share capital of Stora Kopparbergs Bergslags AB. The new entity, Stora Enso Oyj (Stora Enso), started operations at the end of 1998(41).
(45) Immediately after the concentration was finalised Stora Enso sold a majority holding in its carbonless paper subsidiary Stora Carbonless Paper to Mitsubishi Paper Mills Ltd, and a minority holding to Mitsubishi Corporation, with effect from 31 December 1998. Stora Enso still has a minority holding in Stora Carbonless Paper GmbH, whose name was changed after the transaction to Mitsubishi HiTech Paper Bielefeld GmbH.
1.2.3.10. Torraspapel
(46) The Torraspapel group (Torraspapel) is primarily engaged in the manufacture and sale of high-quality paper products for printing, writing and other applications. The parent company of the group is Torraspapel SA. The group's carbonless paper operations are handled by a wholly owned subsidiary, Sarriopapel y Celulosa SA (Sarrió), that has a production site at Leitza, Spain. The group had no carbonless paper production until 1991, when Grupo Torras SA (the then parent company of the Torraspapel group) acquired, through its subsidiary Sarriopapel y Celulosa, the entire non-board paper activities of SarrióSA(42).
(47) In 1999 the CVC Group, a private equity provider active in the provision of fund management and investment advice services, acquired sole control of Torraspapel (Case No COMP M.1728). Before the acquisition CVC did not have any activities in the carbonless paper market.
(48) The group is the market leader on the paper markets in Spain, and has a strong presence in Portugal, France, Germany, Italy and the United Kingdom.
1.2.3.11. Zanders
(49) Zanders Feinpapiere AG (Zanders) is a German company incorporated in Bergisch Gladblach, with production sites in Bergisch Gladblach and Düren, both in Germany. Zanders produces mainly coated papers and cartonboard, and carbonless and speciality papers.
(50) Until January 2001 Zanders was affiliated to the US forest and paper products company International Paper, and was part of its International Division. International Paper's German subsidiary International Paper Deutschland Inc. & Co. Holdings KG owned approximately 72 % of Zanders' shares. International Paper ranks among the world's largest producers of high-quality printing and writing papers.
(51) On 14 November 2000 the Commission received a notification of a proposed concentration by which Metsä-Serla Corporation, a Finnish based forest industry company, was to acquire a sole control of Zanders Feinpapiere AG (Case No COMP/M.2245 - Metsä-Serla/Zanders). The Commission in December 2000 approved the concentration. On 3 January 2001 Metsä-Serla and International Paper completed Metsä-Serla's acquisition of the control of Zanders. On 6 April 2001 Metsä-Serla renamed itself M-real.
1.2.3.12. Zicuñaga
(52) Papelera Guipuzcoana de Zicuñaga SA (Zicuñaga) belongs to the Madrid-based Iberpapel group. Iberpapel Gestión SA, set up in 1997, is the holding and parent company of the group, which carries on various activities in the paper industry. Zicuñaga owns 100 % of Papeteries de l'Atlantique SA, located at Hendaye, France, which has produced carbonless paper since 1992.
1.2.4. THE ASSOCIATION OF EUROPEAN MANUFACTURERS OF CARBONLESS PAPER - (AEMCP)
(53) AEMCP was founded in 1981 by nine companies(43). It operated as an affiliated Product Group of the European Paper Institute (EPI) until the early 1990s, when the EPI merged with CEPAC, another paper industry trade association, to form the Confederation of the European Paper Industries (CEPI). After this merger the then chairman of the AEMCP, [an AWA employee] from AWA, started to organise a "reconstitution" of the association, aimed at formal and legal establishment of the association in Belgium. Consequently, on 13 September 1993 the following companies signed the new articles of association: Arjo Wiggins Appleton plc, Copigraph SA, Koehler AG, Papeteries Mougeot SA, Alfred Rose, Sappi Europe Ltd, Stora Feldmühle AG, Torraspapel SA and Zanders Feinpapiere AG. The association was approved as an international association under Belgian law in 1994.
1.3. PROCEDURE
1.3.1. ORIGIN OF THE CASE
(54) In autumn 1996 the paper products group Sappi provided to the Commission information and documents which gave the Commission reason to suspect that there was or had been a secret price fixing cartel in the carbonless paper sector, in which Sappi was operating as a producer. Sappi invoked the provisions of the Commission Notice on the non-imposition or reduction of fines in cartel cases (the Leniency Notice(44).
1.3.2. THE INVESTIGATIONS
(55) Further to Sappi's submissions, the Commission, by decisions dated 23 January 1997, ordered a number of carbonless paper producers to submit to investigations under Article 14(3) of Regulation No 17. These investigations were carried out on 18 and 19 February 1997 on the premises of the following undertakings: Arjo Wiggins Belgium SA, Papeteries Mougeot SA, Torraspapel SA, Sarriopapel y Celulosa SA, Grupo Torras SA.
(56) Investigations under Article 14(2) of Regulation 17 were carried out between July and December 1997 on the premises of the following producers:
- on 2, 3 and 4 July, Sappi Limited, Sappi Europe Limited and Sappi (UK) Limited;
- on 21 and 22 October 1997, Arjo Wiggins Appleton P.L.C., Arjo Wiggins Europe Holdings Ltd., Arjo Wiggins SA and its subsidiary Guerimand SA;
- on 23 and 24 October 1997, Papeteries Mougeot SA;
- on 6 and 7 November 1997, Torraspapel SA and Sarriopapel y Celulosa SA;
- on 20 and 21 November 1997, Unipapel, Sociedade Comercial de Celulose e Papel Lda;
- on 4 and 5 December 1997, Stora Carbonless Paper GmbH; and
- on 9 and 10 December 1997, Papierfabrik August Koehler AG.
(57) By mutual agreement with Sappi, a visit to the Brussels offices of Sappi's subsidiary, Sappi Europe SA, took place on 25 July 1997.
1.3.3. REQUESTS FOR INFORMATION
(58) On 8 March 1999 the Commission addressed requests for information under Article 11 of Regulation No 17 to Arjo Wiggins Appleton plc, Papeteries Mougeot S.A., Torraspapel S.A., Cartiere Sottrici Binda S.p.A., Carrs Paper Ltd, Distribuidora Vizcaína de Papeles S.L., Ekman Iberica S.A. and Papelera Guipuzcoana de Zicuñaga S.A. On 15 March 1999 requests for information under Article 11 of Regulation No 17 were also addressed to Papierfabrik August Koehler AG, Stora Carbonless Paper GmbH and Zanders Feinpapiere AG, and on 20 December 1999 to Copigraph S.A.
(59) Further requests under Article 11 of Regulation No 17 were sent to Carrs Paper Ltd, Stora Carbonless Paper GmbH and Torraspapel S.A.
(60) In the requests the undertakings were required to provide information regarding their price increase announcements, sales volumes, customers, turnover and meetings with competitors. The same questions were put to Sappi.
(61) AWA, Stora and Copigraph admitted in their replies to the request for information their participation in multilateral cartel meetings held between the producers of carbonless paper. AWA gave a list of "improper" meetings or groups of meetings between competitors from 1992 to 1998 where carbonless paper prices were also discussed, including discussion of historical trends, but also extending to an exchange of intentions regarding announcements of price increases(45). Most (and the best documented) of these meeting were held during the period 1992-1995. Stora admitted its participation in meetings with competitors at which "there was discussion not just of the general economic situation in the industry but of prices as well", but claimed that "the competitors did not reach agreement on price increases"(46). These meetings took place in the period between the end of 1992 and continuing till the middle of 1995. Copigraph admitted participation in meetings with competitors where "carbonless paper reels prices were raised"(47) and more specifically one Copigraph executive remembers attending two or three meetings in 1993 and 1994.
1.3.4. GENERAL STATEMENTS GIVEN BY THE PRODUCERS BEFORE RECEIVING THE STATEMENT OF OBJECTIONS
(62) Mougeot and Sappi have admitted participation in multilateral cartel meetings held between the producers of carbonless paper. As already described, Sappi provided the Commission with the evidence of the cartel's existence. After having received the request for information under Article 11 of Regulation No 17, Mougeot approached the Commission stating that it was willing to cooperate in the cartel investigation under the Leniency Notice. Mougeot admitted the existence of a carbonless paper price fixing cartel and its own participation in it between October 1993 and July 1995, and provided the Commission with information on the structure of the cartel and, in particular, on the individual price fixing meetings its representatives had attended(48).
1.3.5. THE ADMINISTRATIVE PROCEDURE
(63) On 26 July 2000, the Commission initiated proceedings in the present case and adopted a Statement of Objections against the following undertakings: Arjo Wiggins Appleton p.l.c, Binda S.p.A, Bolloré SA, Carrs Paper Ltd, Copigraph SA, Distribuidora Vizcaína de Papeles S.L., Iberpapel Gestión S.A., International Paper, Mitsubishi HiTech Paper Bielefeld GmbH (MHTP (Stora)), Mitsubishi Paper Mills Ltd, Papelera Guipuzcoana de Zicuñaga SA, Papeteries Mougeot SA, Papierfabrik August Koehler AG, Sappi Limited, Stora Enso Oyj, Torraspapel SA and Zanders Feinpapiere AG.
(64) All addressees of the Statement of Objections except Binda S.p.A, International Paper and Mitsubishi Paper Mills Ltd submitted written observations in response to the Commission's objections.
(65) The undertakings had access to the Commission's investigation file via a CD-ROM copy of the file, which was sent to them on 1 August 2000.
(66) In its reply to the Statement of Objections, Koehler argued that granting access to the file by sending a CD-ROM does not satisfy the Commission's own principles as laid down in its Notice on access to file(49) on the basis of case law. Koehler argued that the undertaking in question is unable to check whether the CD-ROM actually does contain all the documents available to the Commission that must be made accessible to it, whether the documents are complete as such or whether in the scanning documents have been recorded incompletely. Koehler made accordingly a request to have access to the file by way of consultation of the file on the Commission's premises in addition to the access to file given to it via a CD-ROM(50).
(67) With the CD-ROM the undertakings received an enumerative list of all documents in the investigation file (with a running page numbering), which shows for each document its degree of accessibility. In addition, Koehler has been informed that the CD-ROM gives the parties a full access to all documents obtained by the Commission during the course of the investigation, excluding only business secrets or other confidential information. Koehler was offered confirmation of that information by the Hearing Officer but has not made use of this possibility(51).
(68) An Oral Hearing was held on this case on 8 and 9 March 2001. The following undertakings took part in the Hearing: Arjo Wiggins Appleton p.l.c, Carrs Paper Ltd, Distribuidora Vizcaína de Papeles S.L., Mitsubishi HiTech Paper Bielefeld GmbH, Papelera Guipuzcoana de Zicuñaga SA, Papeteries Mougeot SA, Papierfabrik August Koehler AG, Sappi Limited, Torraspapel SA and Zanders Feinpapiere AG.
(69) In their written replies to the Statement of Objections Torraspapel(52), Divipa(53) and Zicuñaga(54) have contested any participation in any collusive agreement. However, most of the addressees of the Statement of Objections have admitted existence of the cartel and their participation in it.
(70) The undertakings which had previously admitted their participation in the cartel have to a large extent not contested the findings of the Commission described in the Statement of Objections except for the period after summer 1995. More precisely Sappi has indicated that its participation "ended prior to its approach of the Commission on 19 September 1996"(55). Mougeot has confirmed its participation to the cartel from September 1993 to summer 1995(56), as does Copigraph(57). AWA has not contested the facts set out in the Statement of Objections but regarding the period after summer 1995 indicates that "there were occasional meetings between sales managers at national level. [...] [S]ome of its individual national sales managers had not entirely broken contacts with their counterparts in other producers. [...] However, where it occurred it resulted from local initiatives by national managers and should not be viewed as a continuation of the cartel that existed until summer 1995(58)". Mitsubishi HiTech/ Stora has not contested the infringement over the period 1992 to summer/autumn 1995(59).
(71) Some undertakings that did contest any collusion in their replies to the requests for information from the Commission have admitted in their replies to the Statement of Objections their participation in the cartel. Carrs has admitted that it participated in the UK meetings during the period January 1993 to March 1997, the extent of Carrs participation varying over the period(60). Koehler has not contested some of the facts for the period from autumn 1993 to May 1995 inclusive(61). Zanders has not contested the description of the cartel made by the Commission for the period 1992 to autumn 1995(62).
1.4. DETAILS OF THE INFRINGEMENT
1.4.1. INTRODUCTION
(72) Most of the addressees have admitted participation in the cartel. However, these undertakings have sometimes given a different description and different times for the beginning and for the end of the existence of the cartel. The undertakings admitting the facts do never contest the existence of the cartel during the period from September 1993 to spring or summer 1995.
(73) As to the beginning of the period, Copigraph, Koehler and Mougeot deny any participation in the cartel before September 1993 and Stora (MHTP) before the end of 1992. However, statements made by Sappi suggest that there were contacts of a collusive nature between the European carbonless producers as long ago as the founding of their trade association, the AEMCP, in 1981, and in particular from the mid-1980s onward(63). The evidence provided by Sappi shows that there were cartel meetings starting in 1989 and continuing until a meeting on 2 February 1995 in Frankfurt.
(74) The Commission will in the present case limit its assessment from January 1992 onward, this date being the moment from which the Commission has converging statements from cartel participants and corroborated evidence of regular collusive contacts between carbonless paper producers.
(75) As to the end of the period, as described in the Statement of Objections, there is also some suspicion that at least some elements of the collusive arrangement put in place at the latest in January 1992 continued after September 1995. However, all parties except AWA, Carrs and Sappi deny any continuation of their participation in the collusion after September 1995 - including parties that admit their participation prior to that date (Copigraph, Mougeot, Stora, Zanders). Moreover, the statements made by AWA, Carrs and Sappi are substantially different from each other as to the nature and the dates of the alleged collusive contacts. Finally, the statements are not well enough documented nor corroborated by sufficient evidence to conclude that the behaviour at issue in these proceedings continued after September 1995.
(76) Therefore, the Commission will in the present case limit its assessment to the period up to September 1995, this date being the moment until which the Commission has corroborated evidence of the existence of the cartel.
1.4.2. BASIC PRINCIPLES OF THE CARTEL
1.4.2.1. Objectives
(77) The Commission's investigation revealed that the parties to the cartel agreed on an overall anti-competitive plan aiming essentially at improving the profitability of the participants by collectively increasing prices. In the framework of this global plan, the principal objective of the cartel was to agree price increases and also the schedule for the increases (effective dates of the increases). This was done by means of cartel meetings held at various levels (general, national or regional).
(78) Documentary evidence on the general cartel meetings shows that this plan was implemented through meetings where the participants agreed on several consecutive price increases expressed in percentage form for each EEA country. At the national and regional cartel meetings the cartel members agreed on percentage price increases and in most cases also monitored the implementation of the price increases fixed previously. In the case of the Spanish and Portuguese markets, instead of a percentage increase the parties often agreed on a target price for each type of the product (CB, CFB and CF). This target price was a minimum price.
(79) A document found on Sappi's premises explains the form of the agreed price increases, at least concerning the Spanish market, in the following way: "On the agreement taken, reels are discussed in terms of buying price, but sheets are discussed as selling price and is left to each supplier the margin he wants their merchants to obtain."(64). The terms "buying prices" and "selling prices" also appear in another document found on Sappi's premises, which summarises the price increases for the UK market from 7 February 1994 until November 1995(65). Given that sheets are mainly distributed via merchants, this means that sheet prices were agreed in the form of prices to merchants. Reels, on the other hand, are sold either directly to the end-users or via merchants, and it seems that reel prices were agreed in the form of prices to end-users. As this pattern of trade is common to all EEA countries, it is likely that the price increases were agreed in the same way for the whole area.
(80) As far as prices for reels are concerned, the producers also agreed to differentiate prices according to the purchasing power of the customer, at least on the Spanish and Portuguese markets. Three documents reporting on Spanish market meetings and one document reporting on a Portuguese market meeting show that the reels customers were divided into three groups - A, B and C - and that the agreed target prices for each of these groups were different(66). In addition, the document on the Portuguese market meeting, held on 9 February 1994, contains a "definition of a minimum price according to potential of purchases" and "customer classification according to potential of purchases"(67). During the investigation at Unipapel (Sappi's agent in the Portuguese market), [an Unipapel employee]* confirmed that clients were classified in categories A, B and C according to their purchasing power(68).
(81) In order to ensure implementation of the agreed price increases, in some national cartel meetings sales quotas were allocated and market shares were fixed for each participant(69). The agreements on volumes and market shares show the intention to avoid departures from the common scheme as well as to refrain from competition on other commercial aspects. The following statement by Mougeot illustrates this: "[an AWA employee]* added that this was a problem of prices rather than volumes, but that on the latter point he would see to it that the problems were sorted out as soon as we were participating in the restoration of profitability"(70).
1.4.2.2. Organisation
(82) Two levels of cartel meetings can be clearly distinguished - the general cartel meetings attended by chief executives, commercial directors or equivalent in the carbonless paper business, and the national or regional cartel meetings attended by national or regional sales managers, often together with those senior managers. Statements from Mougeot and Sappi support the Commission's conclusions on the structure of the cartel(71).
(a) General cartel meetings
(83) The EEA-wide planning and co-ordination of the cartel took place at the general cartel meetings convened under the cover of the official meetings of the trade association, the AEMCP.
(84) At the general cartel meetings the participants decided in principle on timing and the amount (in percentage form) of the price increases for each EEA country. They agreed on several consecutive price increases and for some months ahead.
(85) The AEMCP meetings functioned as cartel meetings at least from January 1992 until September 1993. From that date, separate general cartel meetings were held on the occasion of the official AEMCP meetings (either before or after) (see paragraphs 107) to (109)).
(86) The Commission has received copies of the minutes of the official AEMCP meetings starting from the meeting of 23 January 1992(72). Official AEMCP meetings were held five times a year from 1992 to 1995. Annex I, Table A lists official AEMCP meetings from 1992 onward and general cartel meetings for which there is documentary evidence, beginning with the meeting in September 1993 where separation of the trade association and cartel functions was decided.
(87) The AEMCP meetings were normally well attended, and at the time of the infringement all the then AEMCP members participated in those meetings: AWA, Binda, Copigraph, Koehler, Mougeot, Sappi, Stora, Torraspapel/Sarrió(73) and Zanders. Attendance was checked, and members were requested to explain reasons for any failure to attend. The minutes of the AEMCP meeting on 29 February 1996, for example, note that Sarriówas absent for the second time in succession, and that the chairman would contact the company and ask the reasons for its absence(74).
(88) The attendance of each producer in the official AEMCP meetings from January 1992 until summer 1995 is shown in the Annex I, Table B.
(b) National and regional cartel meetings
(89) The general cartel meetings were followed by a series of national or regional cartel meetings. The purpose of these meetings was to ensure market-by-market implementation of the price increases previously agreed at the general cartel meetings. It appears that the price increases, which were decided at the general cartel meetings by the senior managers, would not have been successful without participation of the regional and national managers.
(90) Concerning the reasons for holding cartel meetings market by market (i.e. separate national/regional meetings) Mougeot has stated that "AWA felt that unless the managers responsible for local markets were involved there was little chance of achieving the results hoped for, which explained the holding of meetings market by market". Mougeot continued by saying that: "the local managers were told by their superiors that they wanted a price rise, and had to decide between themselves how the rise should be secured in practice"(75).
(91) At the national and regional cartel meetings the price increases agreed at European level were confirmed or revised, if necessary, and adherence to the price increases agreed previously was checked. Mougeot's statement also confirms that the participants at these meetings agreed on steps to be taken to implement in practice the price increases.
(92) National and regional cartel meetings were usually held from one to three months prior to implementation of each price increase agreed at a general cartel meeting. Sometimes, however, a national cartel meeting too served to fix several consecutive price increases.
(93) The Commission has evidence that national or regional cartel meetings were held concerning the following markets: France, Portugal and Spain, the United Kingdom and Ireland(76), Austria, Germany, Italy, Benelux and the Nordic countries (paragraphs (129) to (188)).
(94) All the then AEMCP members attended some or all national or regional cartel meetings, and some non-members also attended several national cartel meetings. Of the non-members, in particular, Divipa and Zicuñaga attended the meetings concerning the Spanish market, and Carrs attended the meetings concerning the UK market.
(c) Other contacts between the producers
(95) Those cartel members who did not participate in a cartel meeting were informed by other cartel members of what had been decided, usually by telephone. Mougeot has explained how it received information on the concerted price increases if it did not participate in some cartel meetings: "Papeteries Mougeot received phone calls from one company or another, most often from AWA, announcing the details of price increases by market. This continued essentially until mid-1995"(77).
(96) Occasionally the agreed timetable for implementation of the increases needed to be revised, but there was neither time nor any necessity for a new meeting. On these occasions the competitors kept one another directly informed of their intentions regarding the course of conduct they were going to take. Usually this seems to have been done by telephone, and no traces were left, but there are two documents showing how AWA informed Sappi of its decision to revise some increase dates. The first document is a fax where AWA informs Sappi that the price increase of June 1993 should be withdrawn because competitors have failed to put up their prices(78). The second document, also coming from Sappi, says: "After our call I [a Sappi employee]* was advised by ARJ/W [Arjo Wiggins] that they have decided to go one month later in Scandinavia. E.g. 1/5/94"(79).
1.4.2.3. Monitoring system and sanctions
(97) The carbonless paper producers exchanged individual, confidential information in order to facilitate the reaching of the agreements on price increases and sales quotas and to monitor adherence to the agreements. During the national or regional cartel meetings the participants exchanged detailed and individual information on their prices and sales volumes(80). Mougeot has confirmed both the price and volume information exchange, and emphasised the role of AWA in this procedure(81).
(98) The official co-operation of the AEMCP members within the association includes the collection and distribution of statistical information on carbonless paper deliveries. Since the end of 1994 the statistical service has been run by Deloitte & Touche, and before that was run by COPACEL. AEMCP members supply individual data on a monthly basis to Deloitte & Touche, which collates the information and produced aggregated statistics for west European countries and combined statistics for both the other European countries and the overseas markets. These aggregated statistics provided for the AEMCP members do not identify the sales volumes of individual producers.
(99) However, on AWA's premises the Commission also discovered tables containing detailed information on individual carbonless paper producers' sales. The first type of table shows annual sales by individual producers in the years 1992, 1993 and 1994 and "forecast" sales for 1995 and "budgeted" sales for 1996 in the Benelux area(82). Tables of the same kind were also found on AWA's premises showing the individual producers' sales in the UK, Spanish and Portuguese markets in 1995 (and even 1996 and "forecasts" for 1997)(83). The second type of table lists individual producers' shares of the Dutch, Belgium/Luxembourg and total Benelux markets in 1993 and 1994, and "estimated" shares for 1995 (and "forecasted" shares for 1996)(84). Yet another set of tables shows the percentage growth or decrease in each producers' sales in the Benelux area in the periods 1993/1994, 1994/1995, 1995/1996 and 1992/1995(85). The market share and growth figures are given with an accuracy of one decimal place. All the tables are dated December 1995(86).
(100) Equally detailed market share figures (accurate to one decimal place) are shown in hand-written notes taken by Mougeot's representative at the meeting in Geneva on 6 December 1994(87). These notes list shares of the French market in 1994 and 1995 (1995 shares agreed in the meeting) for AWA, Copigraph, Zanders, Sarrió(Torraspapel), Koehler, Feldmühle (Stora) and Mougeot. Meeting minutes and company statements show that the cartel members also exchanged individual sales volume data(88).
(101) The tables found on AWA's premises and the minutes and notes of cartel meetings confirm that, in order to monitor the operation of the price-fixing and quota system, at least the AEMCP members exchanged their individual sales and market share figures outside the official arrangements for the collection and distribution of statistical information operating within the AEMCP.
(102) Standard form letters announcing price increases to customers were also used to ensure compliance with the price-fixing agreements. According to Mougeot, [an AWA employee]* required that the price increases should be announced by sending standarf form letters to customers(89). Mougeot has confirmed that AWA and "some of the main players on this market" used such price increase letters(90). The Commission has found and received from several producers numerous standard form letters.
(103) Mougeot claims that it received the competitors' price increase letters found on its premises from customers. Even if customers sometimes worked as the channel to transmit the information, it is clear that at least AWA kept its competitors directly informed of its price increase announcements. This is confirmed by a set of AWA's price increase letters to its customers found at Sappi's London offices with a signed AWA card "with compliments" from Arjo Wiggins Belgium s.a.(91).
(104) Mougeot's account of the meeting of 1 October 1993 indicates that there were sanctions for failure to comply with the agreements: "[an AWA employee]* said quite expressly that he would not tolerate any failure to follow this price increase and hat he would 'personally look after' anyone who did not 'play the game'"(92). When asked to describe the control mechanism and the reasons for the authority of [this AWA employee]* and AWA, Mougeot replied: "As far as we know there were no contracts, documents or legal circumstances which gave AWA any sort of authority. But they had a position of moral and economic leadership on the market. To the old manufacturers [he]* was the man who had successfully launched self-copying papier in Europe for AWA, and then secured encouraging results in the United States. AWA's financial and industrial weight enabled him to say that if any of these increases were not passed on AWA would make it its business to push the market right down by applying a price poliy that would leave most people high and dry. He showed quit clearly what he was capable of by crushing Binda in Italy"(93).
(105) AWA was (and still is) clearly the largest carbonless paper producer in Europe, with an EEA market share of approximately 30-35 %. It also had by far the largest production capacity, twice as much as the second or third competitor in the EEA. It appears, however, that AWA would not have been able to "crush" the largest of its competitors, Stora and Zanders.
(106) It appears that AWA's threats worked better on the smaller competitors. Mougeot claims that in view of the small scale of their production the sanctions and threats they received were limited to reprimands ("reproches"), to which they replied by promising to implement any future price increases. There are, however, indications that stronger measures were taken by AWA against Torraspapel (another smaller producer) in order to ensure compliance with the agreements. Indeed, in the French market meeting held on 6 December 1994 there was some disagreement between the cartel members on the accuracy of price increase and volume information exchanged in the course of the meeting(94). In order to verify the figures submitted, [an AWA employee]*, who doubted the figures supplied by Sarrió (Torraspapel), had asked and received permission to audit the information on Sarrió's sales volumes on Sarrió's premises(95).
1.4.3. THE CARTEL MEETINGS AND OTHER COLLUSIVE CONTACTS
1.4.3.1. General cartel meetings
(a) General cartel meetings up to restructuring of the AEMCP in 1993
(107) Sappi admitted that there was collusion between the competing manufacturers at regular meetings that took place at least from the beginning of 1992 onward. A Sappi employee stated that such meetings were held "at an EC-wide level" from 1991 onward. AWA admitted as well that such meetings took place as from the beginning of 1992. In addition, the period for which the Commission has extensive evidence of regular meetings and contact of a national or regional character begins in January 1992. The evidence relates in particular to meetings concerning the Spanish and Portuguese markets. Other meetings and contacts beginning at the same time concern the markets in France, Italy, the Nordic countries and the United Kingdom.
(108) Mougeot, which joined the AEMCP at the end of 1992(96), has given a statement concerning the contents of an official AEMCP meeting held in 1993, on the basis of which the Commission infers that the "reconstitution" of the association also involved a restructuring of the cartel. Mougeot says: "Probably on the occasion of the official AEMCP meeting in Frankfurt on 14 September 1993, or at the meeting before that, but certainly when [an AWA employee]*1993, or at the meeting before that, but certainly when [an AWA employee]* became head of AWA's self-copying division [he]*clearly decided to invite the main self-copying manufactureres on each market to thies unofficial meetings, and to change the organisation of the official AEMCP meetings. [He]* decided that from now on there would be a lawyer present at all AEMCP meetings in order to give them an official character and ensure that the proceedings were not open to criticism. Anything to do with prices would no longer be discussed at those meetings but only at 'unofficial' meetings, and to change the organisation of the official AEMCP meetings. [He]* decided that from now on there would be a lawyer present at all AEMCP meetings in order to give them an official character and ensure that the proceedings were not open to criticism. Anything to do with prices would no longer be discussed at those meetings but only at 'unofficial' meetings"(97).
(109) The statement quoted above shows that the election of [an AWA employee]* as the chairman of the AEMCP on 9 February 1993(98) triggered the subsequent restructuring of the cartel. Also according to this statement, at the AEMCP meeting of 14 September 1993 (or at the meeting before)(99) [An AWA employee]*. [An AWA employee]* informed other AEMCP members of his decision to start to organise carbonless paper producers cartel meetings outside those of the association. It appears that on the basis of AWA's proposal there was a consensus reached among the AEMCP members to seprate the trade association activities from the cartel activitites.
(110) As the first official AEMCP meeting with a lawyer was held on 18 November 1993(100), it appears that at least from that meeting onward the cartel activities were effectively moved from "official" AEMCP meetings to the "non-official" meetings, i.e. the general cartel meetings and the national/regional cartel meetings.
(111) Thus Mougeot's statement confirms that, before the reconstitution of the AEMCP, carbonless paper price-fixing agreements were concluded within the official AEMCP meetings, and, after that, those agreements were concluded outside those meetings.
(112) The following recollection of a Sappi employee who worked in Sappi Europe SA from February 1993 regarding his then superiors' and colleagues' participation in the cartel meetings confirms that prices were agreed at the official AEMCP meetings or at meetings held on the occasion of these meetings: "However, he admits that he had very strong suspicions, close to a degree of knowledge, that [two Sappi employees]* had been to meetings with competitors. He recollects that one or other of them would come back from meetings, including AEMCP meetings, with a very definite view on the price increases that were to be implemented and that they were relatively unconcerned by competitor reactions. He knew that they did meet competitors from time to time but was not aware of the details or structure. He assumed that the collusion related to prices and was EC-wide"(101).
(113) The Commission therefore concludes that, until restructuring of the association AEMCP and the cartel in September 1993, general cartel meetings already took place. The Commission infers from the Mougeot statement quoted in paragraph 108 that these meetings took place in the framework of the regular AEMCP meetings. The Commission has information on the dates and also minutes of the official AEMCP meetings since the meeting of 23 January 1992. The minutes of these meetings in the Commission's possession show that between January 1992 and the restructuring in September 1993 there were eight AEMCP meetings, all held in Zurich (see Annex I, Table A).
(114) The AEMCP meeting of 14 September 1993 was held in Frankfurt. Representatives of the following companies (all the then AEMCP members) attended this meeting and, therefore, participated in the restructuring of the cartel: AWA, Copigraph, Koehler, Mougeot, Sappi, Stora, Torraspapel and Zanders(102).
(b) General cartel meetings after the restructuring
(115) As regards the general cartel meetings held after the restructuring, the Commission has documentary evidence and statements which allow identification of the proceedings, outcome and participants of four such meetings:
- meeting on 19 January 1994 in Paris,
- meeting on 21 June 1994 in Frankfurt,
- meeting on 22 September 1994 in Frankfurt,
- meeting on 2 February 1995 in Frankfurt,
(116) All of those general cartel meetings were held on the occasion of an official AEMCP meeting.
(117) The first general cartel meeting in 1994, aiming at fixing and controlling the price increases of the first half of the year in the EEA, was held on 19 January in Paris(103). According to the minutes of the official AEMCP meeting of 19 January 1994, it opened at 13.55 and ended at 15.30(104). AWA has confirmed that the cartel meeting took place before the official AEMCP meeting and that AWA was represented in the meeting by [...]* (then Chief Executive, AWA Printing and Writing)(105) and [...]* (then Sales Director, AWA Carbonless Paper). As for the other participants, AWA says "This meeting is believed to have been attended by executives from some or all of Koehler, Stora-Feldmühle, and Zanders."(106). The Commission also has a travel expense form which shows that Koehler's representative in the official AEMCP meeting could have participated in the general cartel meeting before the official meeting(107). A copy of the diary of [a Mougeot employee]* shows that he was also in Paris on 19 January 1994(108).
(118) The Commission has found on Sappi's premises a table dated 21 January 1994 (two days after the meeting) setting out price increases for most EEA countries from January 1994 to May 1995(109). Some of these increases correspond to those shown in minutes of national cartel meetings held before the general cartel meeting of 19 January. The Commission has also evidence on implementation of the price increases set out in that table by those companies and some other carbonless paper producers. This all provides further evidence on the general cartel meeting and the agreements reached therein (see paragraphs to 189) to (206)).
(119) On 21 June 1994 an official AEMCP meeting took place in Frankfurt. According to the minutes the meeting opened at 11.00 and closed at 13.00(110). The official AEMCP meetings were normally well attended, and at the meeting of 21 June 1994 all AEMCP member companies (AWA, Copigraph, Koehler, Mougeot, Sappi, Stora, Torraspapel and Zanders) were represented. It appears that, following the established pattern, a general cartel meeting was held shortly before or after the official AEMCP meeting of 21 June. This is confirmed by a table dated 23 June 1994 (two days after the AEMCP meeting) setting out price increases for various EEA countries from 1 June 1994 to 1 October 1994(111) and the evidence on implementation of these price increases by the abovementioned companies (see paragraphs (207) to (216)).
(120) Another general cartel meeting, aimed at fixing price increases in the EEA, was held on the occasion of the official AEMCP meeting of 22 September 1994 in Frankfurt. The official AEMCP meeting opened at 11.00 hrs and ended at 13.30 hrs(112). The general cartel meeting was held just before that at Hotel Steinberger (Frankfurt), in the Jagdzimmer room starting at 08.30 hrs and it was convened by [an AWA employee]* ]*. Holding of the meeting is confirmed by AWA and Mougeot and by notes in the diary of Mougeot's representative(113). According to Mougeot, at the meeting [the AWA employee]* informed the participants of percentage price increases and the implementation dates decided country by country, and urged them to implement the same increases simultaneously(114).
(121) On the basis of the statements from AWA and Mougeot and travel expense forms of Koehler's and Stora's representatives(115), the Commission considers that representatives at least of AWA, Koehler, Mougeot, Stora and Zanders participated in this general cartel meeting. Tables found in Sappi, Torraspapel and AWA(116), setting out identical price increases, indicate that Sappi and Torraspapel were also represented at the meeting (see paragraphs (217) to (221)).
(122) The Commission has in its possession minutes of a general cartel meeting between the European producers of carbonless paper held on 2 February 1995 at Frankfurt airport(117). According to Sappi, the purpose of this secret meeting was to "discuss price increases in various countries"(118). On the same date there was also an official meeting of the AEMCP, which was held in a conference room at the Sheraton Hotel, at Frankfurt Airport, Terminal 1 and chaired by [a Koehler employee]*. The official meeting was held between 11.00 and 13.00 hrs and the participants continued with a lunch(119).
(123) The cartel meeting probably took place after the official AEMCP meeting. Sheraton Hotel had confirmed Koehler's reservation of a conference room for 25 persons from 11.00 until 18.00 hrs. Hand-written notes found on the premises of Koehler, dated 26 January, show that two different meetings were planned, of which the first is the official AEMCP meeting. The second meeting seems to be the cartel meeting, planned for a smaller group after the official meeting. The notes contain the following remarks on the time and place of the second meeting: "Room reservation for eight to ten persons, Airport Center, room No 19 ['room No 19' is written on the margin of the page], 2 February 1995 from 14.00 to 17.00 or 18.00, in the name of Koehler"(120).
(124) The minutes of the cartel meeting give the following list of participants(121):
- [three AWA employees]*
- [a Mougeot employee]*
- [two Zanders employees]*
- [two Stora employees]*
- [two Koehler employees]*
- [a Sappi employee]*
- [two Torraspapel employees]*.
(125) The Commission has pages from diaries, travel bills, tickets and oral explanations given during the investigations which prove that the representatives of AWA, Stora, Koehler and Torraspapel named in the cartel meeting minutes were in Frankfurt on the date of the meeting(122).
(126) Mougeot denies having participated in any cartel meeting on 2 February 1995, and says it knows nothing of a general price agreement of that date(123). Mougeot has provided statements and documents on its representatives' use of their time after the official meeting according to which [a Mougeot employee]* left Frankfurt at 14.33 hrs and [another Mougeot employee]* at 15.30 hrs(124). In any event it is clear from the evidence on Mougeot's participation in the price increase initiatives agreed in the meeting and the discussion concerning Mougeot's volume needs recorded in the meeting minutes that Mougeot did adhere to the agreements reached at the meeting (see paragraphs (237) and (250) to (251)). Therefore, its claim that it did not participate in the meeting is not relevant to the assessment of the case. The documentary evidence on implementation of the price increases agreed in the meeting provide further evidence also on other companies' participation (see paragraphs (228) to (240)).
(127) A document found on the premises of Koehler indicates that after the general cartel meeting of 2 February 1995 the parties had agreed to hold at least another three such meetings in 1995(125). Following the pattern already established, each of these meetings was to be held on the occasion of an official AEMCP meeting. The document, dated 14 February 1995, shows that [two Koehler employees]* (Koehler, the AEMCP chairman in 1995) and (Koehler, the AEMCP secretary in 1995) had arranged the reservation of meeting rooms for three AEMCP meetings(126) and after each of them for meetings in a smaller group(127) for 21 April, 28 June and 29 September 1995.
(128) The minutes of the official AEMCP meeting of 29 September 1995 report a dramatic drop in orders and deliveries in July, August and September. The minutes continues with the following statement: "the main problem in June were the increasing costs of raw materials and the fact that the paper price could not be increased as fast as necessary in the individual markets"(128). Discussion on the decline of the European carbonless market and on price development continued at the AEMCP meeting of 1 December 1995 and the AEMCP chairman, [a Koehler employee]*, emphasised that "every member has to make every effort to return to profitability in the carbonless sector". [He]* also went on to speak of the problem of over-capacity and declining carbonless prices in most countries, which he said would lead to zero profits and even to losses(129).
1.4.3.2. National and regional cartel meetings and collusive contacts
(a) General
(129) In addition to the general cartel meetings the Commission has been able to identify dates and often also venues of 20 national or regional cartel meetings between carbonless paper producers concerning the French, Portuguese, Spanish and United Kingdom (including Ireland) markets. Table 3 contains a list of these meetings. The Commission identified also other meetings for which the date cannot be established so precisely.
TABLE 3
National and regional cartel meetings from February 1992 until spring 1995.
TABLE
(130) For the meetings listed in Table 3, there is documentary evidence (including unofficial minutes) and statements detailing the object, proceedings, outcome and often also the participants.
(131) Participation of the carbonless paper producers, and their representatives if known, is shown meeting by meeting in Annex II. This identification of participants cannot be taken as exhaustive, as it has not been possible to establish all the participants for each meeting with certainty. For example the companies giving information on the participants have often indicated that there may have been also other participants in addition to those explicitly mentioned.
(132) In addition to the meetings listed in Table 3, the Commission concludes from AWA's and Copigraph's replies to the Commission request for information and from Sappi's statements that during the period 1992-1995 improper, anti-competitive contacts and meetings took place at least in the following periods and concerning the following markets(130):
- between 1992 and 1995 concerning the French, Italian, Portuguese and Spanish markets;
- between 1992 and 1995 concerning the UK, Irish, Benelux and the Nordic countries markets(131);
- between 1993 and 1994 concerning the Austrian and German markets.
(133) The information provided by AWA, Copigraph and Sappi, together with the documentation and statements concerning the meetings for the French, Portuguese, Spanish and the United Kingdom markets, indicates that the system of regular national or regional meetings covered the whole EEA territory.
(134) In addition to those national and regional cartel meetings there is a considerable amount of documentation on other anti-competitive contacts and meetings between carbonless paper producers during the same period. This documentation provides evidence of collusion in respect of the same markets, namely France, Portugal, Spain and the United Kingdom, and also Germany, the Nordic countries and Italy.
(b) France
(135) In its reply to the Commission's request for information, AWA has stated that there were meetings between competitors in Paris, Zurich and Geneva over the period 1992-1995 which were attended by [...]* (Sales Managers, Tenor brand France, AWA Carbonless papers) and sometimes by [...]* (then Sales Manager, Idem brand France, AWA Carbonless Papers), [...]* (then Sales Director, AWA Carbonless Papers) and [...]* (then Chief Executive, AWA Printing and Writing Papers)(132). According to AWA these meetings were among the "improper meetings ... at some of these ... carbonless paper prices were also discussed, including discussion of historical trends, but also extending to an exchange of intentions regarding announcements of price increases"(133).
(136) Sappi and Mougeot have in their statements confirmed holding of several French market cartel meetings. Based on the statements and documents from these two companies, the Commission has been able to identify dates and venues of eight of the cartel meetings held for the French market during the period from spring 1992 to spring 1995 (see Annex II for participants and Table 3).
(137) The first two of these meetings were held in Paris, one in spring 1992 and the other in spring 1993(134), both probably in April(135). Sappi states that the purpose of these meetings was "to exchange information, discuss customers and the prices that were being applied to those customers"(136).
(138) One French market cartel meeting was held on 1 October 1993 in Paris(137). An "attendance note" drawn up by Sappi's representative at the meeting records the outcome of the meeting(138). Both Sappi and Mougeot have admitted that the purpose of this meeting was to agree a price increase for the French market. The note of Sappi's representative shows that, in addition to price increases, participants also agreed "Q4 1993 quotas to allow price increases", that "merchants must be controlled" and that "AWA and Sarrio will make press releases re cost increases etc."(139).
(139) Mougeot's statement provides evidence of further five French market cartel meetings held respectively on 20 January 1994 in Châtillon, in spring 1994 in Nogent-sur-Marne, 6 December 1994 in Geneva, 20 January 1995 in Zurich and in spring 1995.
(140) The French market meeting of 20 January 1994 was held immediately after the general cartel meeting of 19 January 1994 in Paris and it was convened by [an AWA employee]*. The purpose of the meeting was to follow up the price increases of December 1993 (agreed in the meeting of October 1993) and to prepare an increase on the French market to take place on 1 April 1994(140).
(141) Another French market meeting was held in spring 1994. Mougeot has stated that it was probably held on 31 May at the Hotel Nogentel in Nogent-sur-Marne and that [an AWA employee]* convened this meeting also(141). Mougeot says that the object of this meeting was "monitoring the French market, price increase probably 1 July 1994" and that [an AWA employee]* "urged others to follow the price increase of 6 % which AWA intended to apply on 1 July 1994"(142).
(142) Regarding the meeting of 6 December 1994 held in the Mövenpick Hotel in Geneva, Mougeot has provided hand-written notes taken by its representative there(143). The Commission also has a page from the 1994 diary of [a Mougeot employee]*, which against the date of 6 December refers to Mövenpick, Geneva, and sets out some details of the meeting(144). The meeting reviewed the implementation of the price increases agreed previously, starting from the December 1993 increase and ending with the October 1994 increase. On the basis of the meeting notes, Mougeot confirms that for reels the following increases were decided at the following meetings:
- 10 % on 1 December 1993 decided at the meeting of 1 October 1993,
- 6 % on 1 April 1994 decided at the meeting of 20 January 1994,
- 6 % on 1 July 1994(145) decided at the meeting of 31 May 1994, and
- 10 % on 1 October 1994 [probably decided at a meeting on July 1994].
(143) As these increases were cumulative, the total increase was to be 36 %, whereas Mougeot increased its prices for reels by a total of only 29 %. Mougeot says that because of this [an AWA employee]* %. Mougeot says that because of this [an AWA employee] reproached it in the meeting for failing to comply with AWA's instructions(146).
(144) The note of Mougeot's representative on the meeting also sets out the following plan for the movement of the carbonless paper price from November 1994 until January 1996: "Nov 118 F, Decem. 132 F, Mi 95 ['mid-1995'] 165 F, Fin 95 ['end 1995'] 170 F"(147). This indicates that at the meeting the participants agreed on price increases and on their timing for the end of 1994 and for the year 1995. According to this scheme, the carbonless paper price was to be increased by FRF 70 by the end of 1995.
(145) Mougeot has stated that a 6 % increase for reels was agreed at the French market meeting of 6 December 1994, to be implemented on 1 January 1995(148). The general cartel meeting of 22 September 1994 referred to in paragraph (120), however, had agreed a 10 % increase for reels and a 5 % increases for sheets, both likewise to be effective from 1 January 1995 (see Table 6). The conclusion that these increases were in fact confirmed at the 6 December meeting is supported by the fact that at least AWA, Copigraph, Sappi, Stora, Torraspapel and Zanders announced these increases to take effect in January 1995 (Zanders's announcement concerned reels only).
(146) The next French market meeting was held on 20 January 1995 in Zurich. The participants at this meeting fixed a price increase for 1 April 1995 and reviewed the implementation of increases agreed previously. They also exchanged information on their individual sales volumes on the French market(149). The next French market meeting was held in spring 1995; at this meeting the participants agreed on price increases for July 1995 (see paragraphs (231) and (232))(150).
(147) There are also indications that in addition to the cartel meetings referred to in paragraphs (137), (138) and (139), two further French market meetings were held in 1994, one in July and another in October. Mougeot has stated that "Although we have no record or precise memory, it is likely that a meeting was held in July 1994 to prepare for a price increase in October the same year. Another meeting may have been held in October 1994"(151).
(148) AWA confirms in its reply to the Statement of Objections(152) that the meetings in spring 1992, spring and October 1993, 6 December 1994 and 20 January 1995 were among the "improper"(153) meetings between competitors referred to in its reply to the request for information.
(149) Those documents and statements from Sappi, Mougeot and AWA, together with some travel documents and diary remarks,(154) show that the following undertakings were represented at the French market cartel meetings: AWA, Copigraph, Koehler, Mougeot, Sappi, Stora, Torraspapel and Zanders. (See Annex II.)
(c) Germany
(150) In its reply to the Commission request for information AWA admits among the "improper" meetings four such meetings in Basel in Switzerland and in Ettlingen and Wiesbaden in Germany in 1993 and 1994, which were attended by [...]*, AWA Carbonless Papers' regional manager for Germany, Austria, Switzerland and Italy. According to AWA some or all of Koehler, Stora, Sarrió (Torraspapel), Hauffe and Eupaco(155) attended these meetings(156).
(151) Copigraph confirms that during the period 1993-1994 there were meetings between competitors, which were attended by the "joint Geschaftsführer" of Eupaco KG and Copigraph GmbH and executives from all the companies referred to in paragraph (150), including AWA. Copigraph recalls that in these meetings, one of which was held in Basel, "carbonless paper reels prices were raised"(157).
(152) The note by Sappi's representative in the French market meeting held in Paris on 1 October 1993 provides evidence of the planning of a German market meeting, which was scheduled to be held in late 1993: "Other markets; ... German meeting - 26.11.93"(158). Sappi has confirmed that this meeting took place and that its representative probably participated in the meeting(159). The exact number and identity of the participants is not known to the Commission.
(d) Spain and Portugal
(153) There is a large amount of documentation and statements providing evidence of collusion on the Spanish and Portuguese markets. These markets were characterised by the integration of producers into distribution. Copigraph and Sappi had sales offices in Spain and AWA and Torraspapel had their own merchant companies on the market. Divipa and Zicuñaga were both selling direct to printers. Only Koehler, Stora and Zanders (and until early 1994 also Sappi(160)) were not integrated into distribution in Spain (Zanders sold through Torraspapel). In addition, as already described at paragraph (17), two producers, Divipa and Zicuñaga were small non-integrated producers of carbonless paper sheets or small reels purchasing base papers and chemicals or even large reels ("jumbo reels") from other producers. The collusive contacts took place between all the producers (often qualified in the documentation as "distributors") including these small producers/processors.
(154) Concerning the Spanish and Portuguese markets, AWA admits among the "improper" meetings four such meetings in Lisbon and Barcelona between 1992 and 1994, which were attended by [...]* (then AWA Carbonless Papers' Sales Manager for Portugal) and [...]* (Area Manager for the Iberian Peninsula) and another three or four meetings in the period 1992 to 1994 attended by [...]* (then AWA Carbonless Papers' Sales Manager for Spain) with [...]*(161).
(155) Sappi admits its participation in the Spanish market cartel meetings starting from February 1992 and submits documents showing that there was a concerted price rise of ESP 10/kg at the beginning of February 1992 the application of which was discussed at cartel meetings on 17 February and 5 March 1992.
(156) The first document, a memo dated 9 March 1992 from Sappi's agent in Spain to Sappi Europe, speaks about a price increase of "PTAs 10.-" per kg at the beginning of February set as the target by the distributors (i.e. sellers of carbonless paper in Spain). The memo describes how difficult it was to have this price increase applied on the market. It mentions that "2) The merchants selling TRANSCRIPT seem to be the only ones, who have raised prices by PTAs 10.- per kg to all customers", "3) 'S' [Sarrió] claims that they have raised their prices to everybody", "4) The distributors selling 'K' [Koehler] have only in very few cases raised the prices ... Divipa has absolutely not raised prices" and that "5) WT [Wiggins Teape, today Arjo Wiggins Appleton] speaks loudly about the price increase and how firmly they stick to it". Sappi's agent argues in the memo that "... It is obvious that Sappi Europe cannot make the price go up, unless other suppliers follow", and suggests that Papelera Zicuñaga should also be integrated into the concerted price rises on the Spanish market(162).
(157) The memo indicates that the concerted increase of February 1992 was probably not followed by Koehler and Sarrió, who attempted to win over Sappi's customers. This led to the meeting of 17 February 1992. The gravity of the situation and the importance of the subject-matter of the meeting, of which [a Sappi employee]* informed [another Sappi employee]* by fax the same day, can be deduced from the haste shown by [the first one]*, who tried to contact [the latter one]* over a weekend: "I tried to ring you at the weekend regarding further information from our mutual friend at Sarrio but there was no reply and I assume you were out. I have spoken to [a Norandum employee]* today and the situation remains, to say at least, rather uncertain due to the conduct of Kohler and Sarrio. There is a meeting of interested parties today and I will be informed about this first thing tomorrow morning. I will phone you tomorrow to discuss"(163).
(158) The discussions continued in a meeting held on 5 March 1992. A memo dated 27 February 1992 from [a Sappi employee]* to his superior [a Sappi employee]* refers to "Carbonless market-Spain" and says that: "I have arranged to attend a meeting next week with other interested parties in Barcelona to discuss the recent moves that there have been in the Spanish market. The meeting is on Thursday 5th March and I will accompanied by [a Norandum employee]*"(164). Sappi has confirmed that this meeting between the European manufacturers of self-copying paper did take place. It maintains that the purpose was "to discuss recent moves in the Spanish market"(165). The increase of ESP 10/kg in February had apparently been applied only by Sappi, which had lost several customers as a result, and the situation which had arisen made it necessary to ensure that increases agreed in future would be applied by all the manufacturers on the market; this was no doubt discussed at the March meeting in Spain.
(159) Unipapel, Sappi's agent in Portugal has confirmed that on 16 July 1992 there was a cartel meeting in Barcelona regarding the marketsin Spain and Portugal. At this meeting it was decided to increase the prices of reels of self-copying paper in Spain and Portugal(166). According to Unipapel's representative, Sarrió (Torraspapel) and Stora were charging very low prices in Portugal, below the price of the base paper. He says that, in addition to Unipapel, the meeting was attended by representatives of Sarrió (Torraspapel), AWA and Koehler and that the purpose of the meeting was "to discuss price increases and market shares. The agreements are concerned mainly with 'reels'; there may be similar agreements regarding 'sheets', but he cannot confirm this". This shows that in the meeting an agreement was reached on price increases and market shares at least for reels. The Unipapel's representative indicates that there were more "meetings of this kind" and that in these meetings "information is exchanged on the quantities sold and the prices applied by each company"(167).
(160) Concerning the years 1993-1995, Sappi has submitted to the Commission evidence supplied by one of its employees on the operation of the cartel and, in particular, on price-fixing meetings between carbonless paper producers in Spain. Sappi says "he [the employee] had attended six or seven meetings in Barcelona with other suppliers. These meetings had taken place about four or five times a year. He believed that he had first attended such a meeting on 19 October 1993. He last attended a meeting in 1995"(168).
(161) As to the purpose and subject matter of the Spanish market cartel meetings in 1993-1995 Sappi says "the purpose of the meetings was to fix prices in the Spanish market" and "the meetings normally resulted in an agreed price percentage increase". Although Sappi claims that "the price agreements that were reached were never fully implemented or adhered to" it is clear that there was a concerted attempt to increase prices in the Spanish market(169).
(162) The Commission has several notes on Spanish market cartel meetings during the said period written by Sappi representatives in the meetings and one written by Mougeot's representative in a meeting. These notes record the outcome of the following meetings: 30 September 1993 in Barcelona, 19 October 1993, 3 May 1994 in Barcelona, 29 June 1994 in Barcelona and 19 October 1994 in Barcelona.
(163) Sappi has provided the Commission with a note written by its representative at the meeting of 30 September 1993 in Barcelona. The note shows that in the meeting an agreement was reached on "Q4 Quota" for each participant for year 1993 and on a price increase for both reels and sheets. There was also an agreement to "re-convene for confirmation that quotas adhered to"(170). Sappi has confirmed that the purpose of this meeting was "to agree on a price percentage increase"(171).
(164) Three further notes written by Sappi representatives record the outcome of Spanish market meetings held on 19 October 1993, 3 May 1994 and 29 June 1994(172). The last two meetings were both convened by [a Torraspapel employee]* and held in Barcelona whereas the location of the first meeting is not known. Also these meetings involved price-fixing. The note on the meeting of 3 May also shows that Torraspapel opened the discussion on price increases in the meeting.
(165) According to the note on the meeting of 19 October 1993 "all distributors ... except Copigraph" participated in the meeting(173). The note on the meeting of 3 May 1994 shows a table with prices for "today" ("hoy", i.e. 3 May 1994)(174) and 16 May 1994 and says that these prices were a result of "agreements between distributors" ("acuerdos entre los distribuidores"). The use of the term "distributors" in the meeting notes must be understood in the light of the fact that at the time of these meetings most of the carbonless paper suppliers selling in Spain were directly involved in distribution on this market, as already described in paragraph (153). Consequently, the Commission holds that the carbonless paper producers named in the meeting notes both attended the meetings and participated in the agreements on price increases reached in the meetings (see Annex II for participants).
(166) According to the notes on the Spanish market meeting of 29 June 1994, another cartel meeting for this market was scheduled for 23 September (the day after the general cartel meeting). It appears that around that date a Spanish market meeting or other collusive contacts took place whereby an agreement was reached on a price increase that was to be implemented on this market in November 1994. This follows from a Sappi internal fax, which indicates that the carbonless paper producers had agreed on a price increase for November 1994. The fax reveals that the Spanish market cartel leader, Torraspapel, had reduced prices, which the writer assumed would render the agreed November price increase ineffective: "Our leader (TP) [Torraspapel] has announced a price reduction of ESP 10, and everything suggests that the November increases will have no effect; so far no distributor has announced them"(175).
(167) The carbonless paper producers met again in Barcelona on 19 October 1994 to conclude another agreement on price increases for the Spanish market. A hand-written note of Mougeot's representative reports on this meeting. According to Mougeot, the meeting was convened by Torraspapel and the purpose of the meeting was "organisation of the Spanish market" ("Organisation du Marché Espagnol"). At the meeting, prices were fixed for the Spanish market depending on the size of the client(176).
(168) Concerning the Portuguese market, there was a cartel meeting in Lisbon on 9 February 1994, which was organised by Sarrió (Torraspapel), probably together with AWA(177). Sappi's agent Unipapel sent two faxes to Sappi on 31 January 1994 and 1 February 1994 concerning a forthcoming meeting between competitors and asking Sappi to confirm whether it would be represented at the meeting(178). As no one from Sappi was able to attend the meeting, [a Sappi employee]* told Unipapel by fax that they had to represent Sappi, and also gave him instructions to try to increase prices. Hand-written notes in this fax message shows that the presence of the agent as representative of Sappi at "secret mill meetings" was subject of discussion at Sappi(179).
(169) Unipapel sent a report on this "Portuguese market suppliers meeting 09.02.94" to Sappi Europe by fax dated 14 February 1994(180). In the oral explanations given during the investigation at Unipapel, the company representative claimed that he did not participate in the meeting, and that the information in the report was supplied by [...]*, the then AWA Carbonless Papers Sales Manager for Portugal(181). Even supposing that the representative of Unipapel did not attend the meeting, he was well informed on the outcome and communicated it to Sappi as something he had agreed to on behalf of Sappi.
(170) AWA confirms in its reply to the Statement of Objections that all the above-identified Spanish and Portuguese market meetings during the period 1992-1994 were among the "improper" meetings between competitors referred to in its reply to the request for information(182).
(171) Most of those documents on Spanish and Portuguese market meetings contain also a list of the participants while some of them give indirect indication on the participants. Often these participants are the same as those that AWA identifies as participants to meetings in the period 1992-1994(183). Sappi and Mougeot have confirmed and completed the participants identified in or deduced on the basis of the meeting reports originating from their companies(184). These documents and statement together with some travel documents and diary remarks(185) show that the following undertakings were represented in some or all of the Spanish and Portuguese market cartel meetings: AWA, Binda, Copigraph, Divipa, Koehler, Mougeot, Sappi, Stora, Torraspapel, Zanders and Zicuñaga (see also Annex II).
(172) In addition to those Spanish and Portuguese market meetings, Sappi has indicated several other dates for meetings between competitors concerning specifically the Spanish market. Sappi says that its employee who had always attended Spanish market meetings with [a Sappi employee]* from Sappi "believed ... that all the pages in his diary marked with [a Sappi employee]*'s name or initials indicated that meetings with competitors had been held. Relevant pages of his diary are attached ... and these show that meetings appear to have occurred on 24 January 1994, 18, 19 or 20 April 1994, 29 June 1994 ... and 19 December 1994."(186).
(173) That the price-fixing cartel continued on the Spanish market in 1995 is confirmed by a Sappi document that gives some details of attempted price increases on that market from February until September/October 1995(187). According to Sappi this document, dated 26 September 1995, is part of an internal survey of price movements on its main markets(188). Concerning reels, the document reads: "But, at the end, the increases agreed were the increases applied (keeping everybody at the same level except for Zicuñaga, 10 % lower). These increases are the result of secret agreements, so everybody coincides in date and amount. Big accounts always enjoy special prices, but we have not done any special operation"(189).
(174) As for the Portuguese market, a report by Sappi's agent, Unipapel, on a meeting held on 9 February 1994 says that at this meeting the participants agreed on a set of cartel meetings to be held concerning the Portuguese market in the following months in 1994: April, May, June, September and November(190). In all these months, except in May, official AEMCP meetings were also held. The provisional timetable for the Portuguese market meetings is consistent with the pattern of holding general cartel meetings on the occasion of the official AEMCP meeting and of holding national cartel meetings following each general cartel meeting.
(175) There is also evidence that the collusion continued in the Portuguese market in 1995. A fax from Unipapel to Sappi, describing the movement of reels prices, indicates that competitors had colluded on attempted price increases in Portugal from January to September 1995. The fax refers to "an intention to apply 15 % increase (no one respected)" on 1 January 1995, and says that on 1 April 1995 there was "again an intention to increase prices (no one respected)". On 1 September 1995 there was some "other intention to rectify prices"(191). During the first eight months of 1995 total market consumption in Portugal decreased by 4,4 %. Hence, it seems that the carbonless paper producers tried to offset their losses in sales volumes by collusive price increases.
(176) In his reply to oral questions during the investigation a representative of Unipapel described the Portuguese market and the reasons for the collusion by stating that "Customers were saying that all producers had increased prices at the same time ... There was a feeling that there was a market logic at the European level between the producers. Events in the Portuguese market could fit into this scheme."(192).
(e) United Kingdom
(177) Sappi has acknowledged its involvement in the carbonless paper producers' cartel activities in the UK market from 1989/1990(193). A memorandum from [a Sappi employee]* to [a Sappi employee]* dated 24 September 1990 refers to two "club agreements" reached in 1989, based on confidential discussions among "the UK market participants" in Zurich, aiming at increasing the price of carbonless reels. The document refers to another "pricing committee" meeting held on 15 January 1990 in Zurich and to "the March price increase" that "went through in the main quite successfully"(194).
(178) In addition, Sappi has admitted its participation in UK market cartel meetings on "various dates in 1992, 1993, 1994"(195). AWA has also admitted the existence of "improper meetings" during the period from 1992 to 1994 attended by [...]*, AWA Carbonless Papers' Regional Manager for the UK and Ireland(196).
(179) Sappi has submitted to the Commission evidence supplied by one of its sales employees who participated in those meetings in the United Kingdom(197). That employee confirms that "he attended three such meetings one in each 1992, 1993 and 1994. He also may have attended one or two (but not more) further meetings". He adds, "The practice of holding such meetings was already established by this industry when he entered carbonless sales". According to this statement, "two meetings had taken place at the Heathrow airport(198) and one at the Intercontinental Hotel in London".
(180) Based on the statements and documents from Sappi and Mougeot, the Commission has been able to identify dates and venues of two of the UK market cartel meetings held during the period from 1992 to 1994: a meeting on 14 January 1993 and another meeting on 9 November 1993.
(181) The meeting of 14 January 1993 was held at the Heathrow Business Centre at Terminal 2 at 10.00 and Arjo Wiggins "led" the meeting. On the subject matter of the meeting, from Sappi statements it appears that "[t]he meeting was primarily concerned with the exchange of information as to which supplier was selling to which customers, markets trends and expectations." According to Sappi "No agreement was reached"(199).
(182) The meeting of 9 November 1993 was convened and organised by [...]* then Sales Director of AWA Carbonless Papers and it was held in the Orlon hall at the London Sheraton Sky hotel at Heathrow airport. The object of the meeting was a price increase in the UK market on 1 February 1994(200).
(183) AWA confirms in its reply to the Statement of Objections that both of these meetings were among the "improper" meetings between competitors referred to in its reply to the request for information(201).
(184) The statements of Sappi, Mougeot and AWA together with some travel documents and diary remarks(202) show that the following undertakings were represented at the UK market cartel meetings: AWA, Binda, Carrs, Copigraph, Koehler, Mougeot, Sappi, Stora, and Torraspapel(203). (For details see Annex II).
(185) There is also evidence of collusive contacts in the UK market in summer 1993. As a "significant piece of documentary evidence in relation to the cartel's activities", Sappi has given the Commission a letter dated 2 August 1993 from [an AWA employee]* to Sappi referring to the UK market, which includes the following: "Idem [AWA brand] price increase June 93. It appears that to remain competitive we must withdraw our price increase and fall back into line with our competitors who eventually preferred not to put their prices up"(204).
(186) Moreover, a document found on Sappi's premises suggests that all price increases in the UK market from December 1993/January 1994 until September 1995 were based on collusion between the AEMCP members(205). This document compares Sappi's price increases with "AEMCP/AEMP"(206) price increases on this market. Both Sappi's and the AEMCP's price increases for the years 1994 and 1995 are identical to price increases agreed either at the general cartel meetings on 19 January 1994, 21 June 1994 and 2 February 1995, or at the national cartel meeting held on 9 November 1993. This document indicates that these meetings were not confined to legitimate practices but that they resulted in concerted price increases.
(187) Carrs admitted in its reply to the Statement of Objections(207) that it participated in the UK meetings over the whole period (Carrs indicates that from the end of 1994 it generally no longer attended the meetings but was kept informed by telephone of the conclusions of these meetings by AWA).
(f) Other EEA countries
(188) In its reply to the Commission request for information, AWA also refers to some other "improper meetings" between competitors at some of which "carbonless paper prices were also discussed... extending to an exchange of intentions regarding announcements of price increases" during the period from the beginning of 1992 to summer 1995(208).
- At least four of these meetings relate to the Italian market: meeting in Milan in January or February 1992 between AWA, Koehler, Binda, Zanders and Stora and three or four meetings in Lugano in 1994 and 1995 between AWA, Koehler, Stora and Zanders;
- At least three of these meetings relate to the Nordic countries' markets (Denmark, Finland, Norway and Sweden): two meetings in spring 1992 and 1993 between AWA ([...]*, Regional Manager for Scandinavia and [...]*, then Sales Director for AWA Carbonless Papers), Koehler, Stora and Zanders; a meeting in Paris in August 1995 between AWA ([...]*, Carbonless Papers' Regional Manager for Scandinavia and [...]*, AWA Carbonless Papers' Sales Director) and Zanders, Koehler and Stora-Feldmühle.
1.4.4. PRICE INCREASE, SALES QUOTA AND MARKET SHARING AGREEMENTS
1.4.4.1. Price increase agreements
a) December 1993 to May 1994
(a)(1) Agreements reached
(189) The Commission found a table on Sappi's premises that sets out price increases for various national markets from 1 January 1994 to 1 May 1994(209). Later Sappi submitted to the Commission a copy of Sappi's price increase instructions to its sales network, dated 21 January 1994 (two days after the general cartel meeting), which has the same table of price increases as an annex(210). The table found on Sappi's premises is reproduced as Table 4.
TABLE 4
Agreed price increases from January to May 1994
(document found on Sappi's premises)
TABLE
(190) The Commission considers that Table 4 sets out future price increases agreed at the general cartel meeting held on 19 January 1994 and some price increases agreed previously and already announced. This conclusion is supported by the fact that Sappi has included Italy, Finland and Denmark in the document on price increases, but it did not sell carbonless paper in these countries in 1994(211). Sappi has also included a price increase for reels in Portugal on 1 April 1994, despite the fact that in December 1993 it had decided to concentrate on sheets in Portugal(212). Another document, annexed to the version of the table found initially, proves that Sappi had no reels business in Portugal at the time of the above price increases(213). Hence Table 4 cannot have been purely internal or relating to Sappi's own business alone.
(191) Furthermore, a comparison of Table 4 with the documentation on national meetings held at the end of 1993 reveals that the 1 January 1994 price increases for France and Spain were agreed at meetings between competitors on 30 September 1993 in Barcelona and on 1 October 1993 in Paris respectively.
(192) The note on the meeting of 30 September 1993 in Barcelona(214) shows that the participants agreed at this meeting on a 10 % price increase for reels and sheets to be implemented on the Spanish market on 1 January 1994. Discussions on this agreed price increase continued on a meeting held on 19 October 1993(215). Apparently the second meeting was being held because it seemed that on the reels market the agreed 10 % increase would not be feasible. Reels are sold both direct to end-users or via merchants, and price increases were usually fixed in the form of increases in the end-users prices (see paragraph (79)). At the meeting of 19 October 1993 the participants agreed that the reels price increase for end-users should be 8 %. They also agreed to notify "the manufacturer" (either their own parent company or another supplier) that they would accept only a 7,5 % increase in the manufacturers' prices. This would lead to a 0,5 % increase in the distributor's margin.
(193) As regards the French market, the note on the meeting of 1 October 1993 in Paris(216) shows that the participants agreed at this meeting on two price increases for the French market: a 10 % price increase for reels effective from 1 December 1993, and a 6 % price increase for sheets effective from 1 January 1994. Mougeot has confirmed(217) that [an AWA employee]* made a presentation at this meeting on the financial situation of different producers, showing that all of them were losing money on the carbonless paper market. He said that AWA would increase its prices by 10 % on the French market starting from 1 Decembe 1993, and asked everybody to do the same; he said he would not tolerate any failure to follow this price increase. [He]* also requested that producers should announce these price increases to customers by using standard form letters. The 6 % increase (both for reels and sheets) decided during the general cartel meeting of 19 January 1994 for the French market to be effective from 1 April 1994 was confirmed at the French market cartel meeting held on 20 January 1994(218).
(194) Mougeot's statement concerning the UK market meeting of 9 November 1993 shows that also in this meeting (as at the French market cartel meeting of 1 October 1993) AWA took the initiative and proposed a 10 % price increase effective on 1 February 1994, which it persuaded the others to follow(219). It follows from Mougeot's statement that the participants agreed at this meeting to implement the 10 % price increase for reels on the UK market on 1 February 1994 as proposed by AWA(220).
(195) The Commission considers that the collusion on February 1994 price increases in the UK covered both reels and sheets. This is shown by a document comparing Sappi's price increases with "AEMCP/AEMP" price increases on the UK market(221). The document indicates that the AEMCP members had agreed increases for both reels and sheets, but that originally the increase for reels (10 %) was to be implemented in December 1993 and the increase for sheets (6 %) in January 1994. Apparently the original decision was revised so that the increase for sheets became 7,5 % and both increases were to be implemented in February. This may also explain why these UK market increases do not appear in Table 4 drawn in the general cartel meeting of 19 January.
(196) It is likely that the other increases for January and February (spring 1994) presented in Table 4 were also agreed at meetings held during the last quarter of 1993, or were based on other collusive contacts between competitors during that period. This conclusion is supported by the minutes of Koehler's supervisory board meeting on 8 December 1993, which state: "It is planned that the prices of the main types of carbonless paper should be increased in the various countries by an average of 5 %. In Italy, where a special situation has arisen owing to the take-over of Binda by Wiggins Teape, a price increase of 10 % is to be announced on 1 January and again on 1 April."(222). According to this document, the implementation of the increases depended on the success of an 8 % price increase on the French market effective from 1 December 1993(223). The price increases presented in the Koehler document are same or close to those set out in Table 4 for January and February(224).
(197) Table 4 presents also price increases for April and May 1994. Regarding the Portuguese market, it shows that at the general cartel meeting there was an agreement on an 8 % price increase from 1 April 1994 for both reels and sheets. The report from the Portuguese market meeting of 9 February 1994, written by Sappi's agent Unipapel, shows for carbonless paper sheets a table of "Actual prices and proposal for price increase to distributors S suggested to be invoiced to the distributors /S "(225). This Unipapel table confirms that at the meeting target prices were agreed for sales of sheets to distributors by each of the following producers: AWA, Koehler, Sarrió, Stora and Zanders. These prices were to be effective from 1 April. The target prices for the first three companies referred to were the same, but the targets for Stora and Zanders were higher. Given that before the agreement the producers' actual average prices were different, the percentage price increases for AWA, Koehler and Sarrió ranged from around 8 % to more than 13 %. Hence, while the minimum increase for sheets was kept at 8 % as agreed at the general meeting, it was agreed at the national meeting that the increase would be higher for some producers(226).
(198) At the national cartel meeting of 9 February 1994 the timing of the increase for reels was also changed. Based on Sarrió's proposals, the participants agreed increased target prices for reels, to be effective from 1 March. The prices were set as minimum prices for each product type and differentiated for customer groups A, B and C. Customers were classified into these three groups according to their purchasing power. An annex to the report lists several customers in groups A and B. In his oral explanations during the inspection at Unipapel, the company representative who had written the report on the meeting confirmed the customer classification, and also confirmed that the agreed prices were minimum prices(227). In addition to the price increase to take place in March, new, higher minimum prices for reels were agreed which were to be implemented in June 1994.
(199) Turning to the Spanish market, the note on the meeting of 3 May 1994 shows that all participants agreed to increase the sheets price by 5 % from 1 June (Koehler by 7 %). Concerning reels, the note shows an agreement on an approximately 10 % price increase in May. The note also shows that customers for reels were classified into groups A, B and C, and that different target prices for reels were agreed for each of these groups(228).
(a)(2) Implementation of the agreed price increases(229)
(200) Sappi's instructions to its sales network show its determination to implement the price increases agreed at the general cartel meeting of 19 January 1994: "we must now announce our intention to apply further increases, which will be applied rigidly in each market"(230). A letter to a Sappi distributor in the Netherlands confirms Sappi's determination and also indicates that the January agreement resulted in an overall price increase: "Everywhere in Europe, and in Holland too, carbonless prices are going up and I do not see why your customers should not get it."(231). Another document suggests that Sappi was determined to hold on the agreed January price increases for Spain even if the increase for sheets was only partially successful(232).
(201) AWA's fax to its sales subsidiaries around the EEA shows similar determination to implement the increases agreed for April/May: "As we continue to be very tight in capacity, I insist that prices are rigorously increased. The April/May increase must be enforced with all determination."(233).
(202) A document found on Sappi's premises shows that implementation of some price increases set out in the table from the January meeting were rescheduled, whereas others were successful(234). It appears that this document refers to a rescheduling of the agreed increases on the market in general, and not a rescheduling by Sappi alone. The February increases were delayed by one month in the case of Austria and by 15 days in the case of Belgium and the Netherlands. As for the Spanish market, this document states that the 10 % increase for reels was rearranged for 1 April 1994, but that Sappi at least had implemented the 10 % increase for sheets. The document states that on the Portuguese market the price increase for sheets was postponed until 1 April 1994, which, however, is the date indicated in Table 4. As regards the French market, the document indicates that the increase for sheets agreed for December 1993 and the increase for reels agreed for January 1994 were in fact implemented(235). In the case of the Swedish market, the price increase for reels took place on 1 February 1994 as agreed.
(203) Regarding the increases agreed for 1 December 1993 (10 % for reels) and 1 January 1994 (6 % for sheets) in the French market meeting on 1 October 1993, two graphs found on Stora's premises show exactly the same increases(236). On 12 October 1993 AWA announced the same increases to its customers(237). There is also evidence that Mougeot took measures to implement the agreed 10 % increase for reels to apply from 1 December 1993, and that it announced it to customers(238). A document found on Koehler's premises indicates that Koehler too had decided on an increase to apply from 1 December 1993, but that this increase was 8 % instead of 10 %. Other producers have not provided price increase information for this period.
(204) Starting from the price increases of January 1994 the Commission has more comprehensive evidence of producers' price increase instructions to their sales networks, announcements to customers and internal documentation relating to price increases that correspond with the price increases agreed at the general cartel meeting of 19 January 1994. Concerning the period from January to March 1994 this information shows that on some or all of the following markets AWA, Koehler, Sappi, Stora and Torraspapel announced price increases identical to those agreed or confirmed at the general cartel meeting of 19 January 1994 (for details of the price increases see Annex V, Table A): Belgium and Luxembourg, Denmark, Germany, Italy, the Netherlands, Norway, and Sweden(239).
(205) The documentation available also shows that the price increases agreed in November 1993 were implemented when both AWA and Sappi announced a 10 % increase for reels for the UK market (see Annex V, Table A). The AWA price increase was due to become effective from 1 February, and Sappi's increase from 7 February 1994. In addition, the documents show that AWA, Sappi and Carrs all announced a 7,5 % increase for sheets, likewise in February 1994 (Carrs was not selling reels).
(206) AWA, Koehler, Mougeot, Sappi, Stora and Torraspapel also announced price increases for April and May which were identical to those agreed at the general cartel meeting of 19 January on some or all of the following markets (Annex V, Table B): Denmark, France, Germany, Italy, Norway(240), Sweden(241), the United Kingdom and Ireland(242).
(b) June to October 1994
(b)(1) Agreements reached
(207) On the premises of both Sappi and its Portuguese sales agent Unipapel, the Commission found a table dated 23 June 1994 (again two days after a general cartel meeting) setting out price increases for various national markets from 1 June 1994 to 1 October 1994(243). Later Sappi submitted to the Commission a copy of the same table attached to a fax giving instructions for price increases to its sales network(244). The table submitted by Sappi is reproduced as Table 5.
TABLE 5
Agreed price increases from June to October 1994
(table submitted by Sappi)
TABLE
(208) Once again, as in Table 4 from the meeting on 19 January, Sappi has included Italy, Finland, Denmark and Portugal in the list of price increases even though it had no sales in these markets (in the case of Portugal it was selling sheets but not reels). Like Table 4, therefore, Table 5 cannot have been purely internal or relating to Sappi's own business alone. Instead it shows price increases resulting from collusive contacts between competitors.
(209) The Commission considers that Table 5 sets out future price increases agreed between competitors at the general cartel meeting held on 21 June 1994 and some price increases agreed previously and already announced to customers.
(210) In particular, concerning the 1 July 1994 price increase for reels on the French market (see paragraph (141)), there was already in May 1994 cooperation between the carbonless paper producers. Mougeot has stated that in a French market cartel meeting held probably in May 1994, [an AWA employee]* "urged others to follow the price increase of 6 % which AWA intended to apply on 1 July 1994"(245). Mougeot's statement shows that AWA clearly tried to influence the conduct of its competitors in the French market by disclosing to them exact information on the price increase that it had decided to implement. As a result an agreement appears to have been reached. This is shown by Table 5 drawn up at the general cartel meeting of 21 June 1994.
(211) At the general cartel meeting on 21 June 1994 a price increase for Spain was also planned, which was to be effective on 1 September 1994. Instead of giving the amount of the increase, Table 5 setting out the agreed price increases says that the Spanish increase is "to be advised"(246). The report from the Spanish market meeting of 29 June 1994 shows that an agreement on the September price increase was reached in this meeting. For reels the note shows an agreement on a 10 % increase on 1 September and on target prices (ESP/kg) for direct sales to printers, which were divided into three groups (A, B and C), with different target prices for each group (by product type). On sheets, the report says that the prices agreed previously have not been complied with, and that the price has fallen back to the previous level. At this meeting it was agreed that the price would be increased in two stages on 1 July and on 1 September 1994, both times by 5 %(247).
(b)(2) Implementation of the agreed price increases
(212) The Commission has in its possession a document reporting on the implementation of some of the price increases agreed at the general cartel meeting of 21 June 1994. This document shows that the price increases agreed for Germany, France, the United Kingdom and Italy were implemented for the most part and in some cases even exceeded. The document, found on the premises of Torraspapel, shows that the September price increases in Germany (for sheets and reels) and the October price increases in Italy (also for sheets and reels) were implemented in practice, though there were some difficulties with the implementation of the price increase for sheets in Germany. In the United Kingdom there was an 8 % increase in the price of reels and a 6 % increase in the price of sheets in September 1994. The increase in the price of sheets is the same as that agreed at the meeting, but the increase for reels is higher. As regards the French market the Torraspapel document says that in October there was a 10 % price increase for reels and a 6 % price increase for sheets. The first of these increases is exactly the same as the one agreed at the meeting of 21 June 1994(248).
(213) On 23 June 1994 Sappi Europe SA sent its sales subsidiaries and agents in different European countries a table summarising the price increase schedule agreed at the general cartel meeting, and on 28 June and 1 July 1994 it gave each of them instructions for the implementation of the price increases(249). The Commission also has other documentary evidence of price increase announcements sent by various competitors to their customers or sales networks and internal documentation relating to price increases, which correspond to the increases agreed at the general cartel meeting of 21 June 1994.
(214) The 6 % reels price increase which it had been agreed should take place on the French market on 1 July 1994 was announced by AWA, Mougeot and Sappi(250) for 1 or 4 July (see Annex V, Table C). The graph showing price movements for reels which was found on Stora's premises shows the same increase for this period(251).
(215) For September and October 1994 AWA, Sappi, Stora, Torraspapel and Zanders(252) announced price increases identical to those agreed at the meeting of 21 June 1994 on some or all of the following markets (see Annex V, Table D): Denmark, Finland, France, Germany, the Netherlands, Norway, Sweden, the United Kingdom and Ireland(253).
(216) As regards the implementation of the increases agreed at for the Spanish market in the meeting of 29 June 1994, a document received from Sappi says that the increase in the price of reels was "applied in full" but that the first increase for sheets was "abandoned by Sarrio due to merchant pressure"(254). The document confirms that in spite of Sarrió's withdrawal Sappi was determined to implement the September price increase for sheets too. Also an AWA's internal price increase instruction confirms that there were price increases both on 1 July and on 1 September(255). Another Sappi document shows that the Spanish market leader, Sarrió, had already delayed implementation of the first price increase for sheets agreed in June, which led Sappi to conclude that it had misunderstood the agreement: "Would you please note that the price increase of 1 September in Spain on carbonless sheets is in fact the June increase, which Sarrio(256) have delayed. We originally understood that the market was moving by two increases of 5 %, but this is not the case"(257).
(c) December 1994 to February 1995
(c)(1) Agreements reached
(217) At the general cartel meeting of 22 September 1994 [an AWA employee]* informed the participants of percentage price increases and the implementation dates decided country by country, and urged them to implement the same increases simultaneously(258). The Commission considers that at this meeting the participants agreed on price increases for the period from December 1994 to February 1995. These price increases are set out in a document found on the premises of Sappi, reproduced as Table 6(259).
TABLE 6
Agreed price increase from December 1994 to February 1995
(document found on Sappi's premises)
TABLE
(218) Once again, as in the other two tables found on Sappi's premises (see Tables 4 and 5), Sappi has included Italy, Finland, Denmark and Portugal in the list of price increases for both reels and sheets even though it was not selling reels in any of these countries and was not selling sheets in Italy, Finland and Denmark. This confirms that the table cannot have been purely internal or relating to Sappi's own business alone.
(219) The Commission has in its possession documents found on the premises of Torraspapel(260) and AWA(261) which support the conclusion that Table 6 contains price increases agreed between competitors. Both these documents set out price increases that are identical to the price increases in Table 6. The document found on Torraspapel's premises sets out "forecasts" for December 1994 price increases in Germany and the United Kingdom and for January 1995 price increases in France and Italy that are identical to the increases in Table 6. The only difference is that Table 6 does not give price increases for the United Kingdom. Torraspapel's document "forecasts" price increases of 10 % for reels and 5 % for sheets on the UK market in December. It appears that these increases were also agreed at the general cartel meeting of 22 September 1994.
(220) The document found on AWA's premises lists "price increase assumptions" for February 1995 in Germany, France and Italy which are identical to the December and January price increases set for these countries in the documents found at Sappi and Torraspapel. In addition, AWA's "price increase assumption" for the Benelux countries is exactly the same as the December 1994 price increases indicated in Table 6 for both Belgium and the Netherlands. Similarly, AWA's "price increase assumption" for Scandinavia is identical to the December 1994 and January 1995 price increases for Norway and Denmark indicated in the Sappi document.
(221) Those documents also confirm the participation of Sappi and Torraspapel in the general cartel meeting of 22 September 1994.
(222) The general cartel meeting on 22 September 1994 did not agree any price increase for Spain, but Table 6 setting out the agreed price increases contains the phrase "To be advised" in the place of the Spanish increase. This indicates that the Spanish increase was to be agreed at a Spanish market meeting after the general cartel meeting. The hand-written note of Mougeot's representative at the Spanish market meeting of 19 October 1994 shows that at the meeting the participants agreed on price increases (without showing the size of the increase) and target prices (ESP/kg) that were to be applied in Spain from 3 January 1995(262). Participants agreed different prices for three classes of customer -A, B and C- and for each product type. The prices recorded in the note are prices for reels. As Mougeot was selling only reels, it was natural that it should be interested in those prices only(263). It cannot be excluded, however, that at this meeting price increases were also agreed for sheets.
(223) At the Spanish market meeting of 19 October 1994 Zicuñaga and Mougeot were authorised to sell somewhat below the agreed prices. The above mentioned meeting note of Mougeot says "Zicuñaga and Mougeot authorized to sell ESP 5/kg below (what a gift)"(264). Mougeot confirmed in reply to oral questions during an investigation that the large producers did indeed authorise this. Mougeot also said, "As for Mougeot, Sarrio, who was a customer of ours and the principal operator on the Spanish market, asked us not to sell more than ESP 5 below the regular market price"(265). Later Mougeot said "we were reminded that we should not sell under ESP 5 below the announced minimum prices"(266), indicating that the agreed target prices were minimum prices.
(224) Concerning the French market, the price increases decided at the general cartel meeting were confirmed at the French cartel meeting of 6 December 1994 (see paragraph (145)).
(c) (2) Implementation of the agreed price increases
(225) Concerning the period from December 1994 to February 1995, the Commission has discovered that all the participants at the general cartel meeting of 22 September 1994 -AWA, Koehler, Sappi, Stora, Torraspapel and Zanders- announced price increases identical to those agreed at the meeting for some or all of the following markets: France, Germany, Italy, the United Kingdom and Ireland (for details of the price increases see Annex V, Table E)(267).
(226) Concerning the French market, at least AWA, Copigraph, Sappi, Stora, Torraspapel and Zanders announced the increases confirmed at the 6 December 1994 meeting to take effect in January 1995, Zanders's announcement having concerned reels only (see paragraph (145)). The graphs of price movements found on the premises of Stora indicate a 10 % price increase for reels at the beginning of 1995(268).
(227) For the United Kingdom and Ireland, AWA, Koehler, Sappi and Torraspapel all announced or planned almost identical increases (10-11 % for reels and 5-6 % for sheets) for different dates from the end of November 1994 to January 1995. A document found on the premises of Sappi confirms that in spite of the different implementation dates this increase was based on collusion. AWA and Stora are explicitly mentioned as participating in the collusion. The document reads: "As I hope you are aware, [an AWA employee]* decided to withdraw their November/December price increase on the day of implementation due to 'logistical problems'. They therefore postponed until 3 January and duly implemented their increase accordingly. We alongside Feldmuhle [Stora] elected to hold out for our increase, in the belief that if we withdrew, the market place would collapse and we would rapidly get back to a price war." The document also confirms that AWA, Sappi and Stora implemented the UK and Irish market increases(269).
(d) February to September 1995
(d)(1) Agreements reached
(228) The minutes of the general cartel meeting of 2 February 1995 list the price increases which were agreed for various countries, and specify dates when they were to become effective(270). A document received from AWA lists exactly the same increases as in the minutes(271). This document shows that AWA management decided those increases just before the cartel meeting. Therefore, it appears that at the general cartel meeting of 2 February, as at the meeting of 22 September 1994, AWA submitted price increases that it had planned beforehand for agreement to the other cartel members. According to the minutes, the increases agreed for EEA countries from February to October 1995 were as set out in Table 7.
TABLE 7
Agreed price increases from February to September 1995
(from the minutes of the general cartel meeting of 2 February 1995)
TABLE
(229) Like the price increase tables drawn up at the general cartel meetings held in 1994, Table 7 sets out both future price increases agreed at the meeting and other increases agreed previously. In particular, the April price increase for France had been agreed at the national cartel meeting of 20 January 1995.
(230) Mougeot recalls that the participants in the 20 January 1995 French market meeting agreed on a 6 % increase to be implemented on 1 April 1995(272). From other documents, however, it appears that the agreed price increase may have been 10 %. A 10 % increase for reels to take effect on 1 April figures not only in the minutes of the general cartel meeting of 2 February 1995 but also in the price development graph found at Stora(273). Furthermore, a Mougeot "Note de Service" dated 15 March 1995 confirms that the competitors had announced an increase of 10 % for reels in France for the second quarter of 1995, but that the market leaders would not apply it. Mougeot decide also to adjust its own increase aiming at 5 to 6 %(274).
(231) The minutes of the general cartel meeting show planning of two further price increases for the French market: a 10 % price increase for sheets was to be implemented on the 1 May 1995 and another price increase on 1 July 1995 was to be agreed later ("TBA"). Mougeot's recalls that in spring 1995 there was a French market cartel meeting the purpose of which was to decide on an increase in July(275). The producers appear to have agreed in that meeting on a 10 % increase for both reels and sheets for July. These are the figures marked for mid-1995 in the graphs of French market price movements found on the premises of Stora, which indeed reproduce precisely the agreements reached on price increases until then(276).
(232) It follows that at least Mougeot and Stora participated in the French market cartel meeting held in spring 1995. As for the other usual participants in the French market cartel meetings (AWA, Copigraph, Koehler, Torraspapel and Zanders), the evidence does not allow it to be said with certainty whether they participated in this particular meeting. However, they have all continued to adhere to the cartel scheme, and therefore they can be held responsible for the increases agreed at this meeting too.
(233) At the general cartel meeting of 2 February 1995 the participants also agreed on a system for launching the price increases according to which AWA would lead the price increases and others would follow. As stated in the minutes: "AWA will lead announcement of following increases per market. To follow, Koehler AG, Zanders, Stora, Sappi, Torras"(277).
(234) Moreover, during the official meeting [an AWA employee]*, while making a presentation on pulp price increases (which would normally have been done by the chairman, [a Koehler employee]* on that occasion), said (according to Mougeot) that "anyone who did not adapt their prices in the light of this increase would find themselves in a difficult financial situation"(278). This is further confirmation of AWA's active role in the cartel.
(d) (2) Implementation of the agreed price increases
(235) The Commission is in possession of documents coming from AWA(279) and Sappi(280) that show price increases for most of the EEA countries corresponding to the increases agreed at the meeting. Sappi itself has compared the agreed price increases with the ones which it subsequently announced, and come to the conclusion that "the price increases that appear to have been agreed between the competitors at the meeting in Frankfurt correspond to a large degree to the price increases which Sappi later announced to its customers"(281).
(236) The Commission also has evidence of other producers' price increase instructions to their sales networks, announcements to customers and other documentation relating to price increases that correspond with the price increases agreed at the general cartel meeting of 2 February. This information, together with the data from AWA and Sappi, shows that for the period from March to April 1995 AWA, Sappi, Stora, Torraspapel and Zanders, of the producers who participated in the meeting, announced price increases corresponding to the increases agreed at the general cartel meeting on some or all of the following markets (see Annex V, Table F): Denmark, France,(282) the Netherlands, Spain, the United Kingdom and Ireland(283).
(237) Regarding the UK market increase, a fax from Mougeot dated 2 February 1995 and sent on 3 February 1995 to a UK distributor, J & H Paper reads: "The U.K. market will increase by 8 % the 6th of March so we propose you our best offer."(284). This fax corroborates Mougeot's participation in the agreement reached at the general cartel meeting of 2 February 1995.
(238) As regards the increases on the Spanish market agreed for March and April, AWA, Sappi, Stora and Torraspapel announced the agreed increases, as is shown by Table F in Annex V. This is confirmed by a document dated 16 February, which was received from Sappi. The document includes the following: "the increase of 6 % [reels] on 1.3.1995 is announced by the markets leaders Sarrio/Stora/AWA. Therefore if we go for more we are out of the market"(285). Another document from Sappi says that in Spain in early 1995 there were some difficulties in implementing agreed increases in the price of reels. As for sheets, the document confirms that there were price increases in February and April which corresponded to those agreed at the general cartel meeting of 2 February 1995: "The market increased effectively by 5 % on February and 10 % on April"(286).
(239) Of those who participated in the general cartel meeting, AWA, Koehler, Sappi, Stora and Zanders announced identical price increases for the period from May to July on some or all of the following markets (see Annex V, Table G): Belgium and Luxembourg, France, Germany, the Netherlands, the United Kingdom and Ireland. Of these increases those for Belgium and Luxembourg, France and Germany do not appear in the table of price increases agreed at the general cartel meeting of 2 February 1995. As regards the French market, there is evidence that the announced 10 % increase was agreed at a separate national cartel meeting which was held later in spring 1995 (see paragraph (231)). The increase for the Netherlands was announced by AWA, Koehler, Sappi and Stora for the same date as agreed at the meeting, but all of them had raised it from 8 % to 10 %. The percentage agreed at the meeting must have been revised accordingly.
(240) AWA and Sappi also announced increases in the United Kingdom and Ireland for September 1995 which are same as the increases agreed at the general cartel meeting of 2 February 1995 (see Annex V, Table H)(287).
1.4.4.2. Allocation of sales quotas and market sharing
(241) The Commission has found evidence showing that, in order to support the implementation of the agreed price increases, in some national cartel meetings sales quotas were allocated and market shares were fixed for each participant.
(242) Sales quotas were allocated at least in the Spanish market cartel meeting held on 30 September 1993 in Barcelona(288) and in the French market cartel meeting held on 1 October 1993 in Paris(289).
(243) In these meetings the participants agreed on sales quotas for the Spanish and French markets respectively for each of them for the last quarter of 1993, using confidential information as a device for fixing the quotas. In the Spanish market meeting the information exchanged was individual average monthly sales for years 1992 and 1993. In the French market meeting the participants used individual sales data for the eight-month period from January to August for years 1992 and 1993 in fixing the quotas.
(244) The Commission requested the carbonless paper producers to provide information on their annual and monthly sales volumes, but only a few of them gave monthly information for the years 1992 and 1993. Even this limited information on real sales figures shows a close correlation with the quotas agreed and with the sales volume information exchanged at the meetings of 30 September and 1 October 1993 (see Annex III). This demonstrates that the carbonless paper producers took the information exchange and the quota agreement seriously.
(245) Also the report from the Spanish market meeting of 29 June 1994 indicates that there were sales quotas agreed for reels, and that the producers were selling the complete amounts allocated to them(290).
(246) Agreements on market shares were concluded at least in the French market meetings held in spring 1994 in Nogentel and on 6 December 1994 in Geneva. Regarding the meeting in spring 1994, Mougeot states that AWA described its sales volumes at the meeting and, that once the other participants had also described their "activities" (i.e. sales volumes), "[an AWA employee]* [an AWA employee] indicated what each one's share of the French carbonless paper market should be"(291). Hence, it appears that on the basis of AWA's proposal there was a consensus reached among the participants that these market shares would be respected.
(247) The hand-written notes taken by Mougeot's representative from the French market cartel meeting of 6 December 1994(292) indicates the participants' 1994 and 1995 market shares. Comparison of these market shares shows that some adjustments were agreed for the market shares fixed for 1995 as compared with 1994: AWA's share was reduced, and the shares of Zanders, Sarrió, Koehler and Stora were increased.
(248) Mougeot says in its statement that "There was some disagreement expressed at this meeting between the leaders on the French carbonless market, as the price increases were not linked to indications of volume."(293). The notes reporting the meeting also shows that the participants exchanged detailed information on their 1993 and 1994 sales volumes on the French market. Comparison of these figures with information on real sales figures confirms that the sales volume information exchanged at the meeting was accurate (see Annex IV). This shows that the carbonless paper producers took the information exchange seriously. Mougeot's statement indicates that the volume information exchanged was used to verify whether there were important changes in market shares, which might be due to a failure to comply with the price increase agreements.
(249) Confidential information on sales volumes was exchanged also in the Portuguese market meeting of 9 February 1994. The purpose of this meeting was to increase carbonless paper prices in Portugal. The meeting report(294) shows that in preparing the price increases participating companies' (AWA, Koehler, Sappi, Stora and Torraspapel) sales volumes on 1992 and 1993 and prices in 1993 were collected and compared. Account was also taken of a comparison of the sales volumes of Binda, Zanders and Copigraph. Concerning the source of the individual items of information in the report of the meeting, [an Unipapel employee]* confirmed in his oral explanations that "the data in question was drawn up to serve as a basis for the exchange of information between the participating companies and was discussed at these meetings"(295). Concerning the sales volume information exchanged at the meeting the report says, "All the presents agreed that there was is(296) a decrease on the consumption of 2,8 % in reels and 9,2 % in sheets from 1992 to 1993"(297). In spite of the clear decrease in consumption the producers pressed ahead with price increases.
(250) There are indications that the sales volumes and market shares were also on the agenda of the general cartel meetings. The following sentences in the minutes of the general cartel meeting of 2 February 1995 indicate that the participants discussed volumes and market shares: "Mougeot needs market share. AWA will propose giving certain tonnage. Separate meeting, Paris TBA [to be agreed](298)." An internal Mougeot "Note de Service" dated 15 March 1995 indicates that Mougeot had problems with insufficient sales on the French market at least, which seems to give meaning to the above phrases(299).
(251) Mougeot has confirmed that it had a bilateral discussion with AWA on sales volumes the morning before the official AEMCP meeting of 2 February, but says that this was concerned only with AWA's breach of an agreement to buy certain volumes per year from Mougeot(300). Although Mougeot claims that it was not present at the general cartel meeting, it is clear from the minutes that Mougeot's need for market share was discussed there, and that it was decided that AWA would be the one to reduce its sales for Mougeot's benefit. This type of decision can not be explained if Mougeot was not participating in the price agreement reached in the meeting of 2 February 1995.
1.4.5. ASSESSMENT OF THE FACTUAL EVIDENCE
1.4.5.1. The evidence relating to the cartel as a whole
(252) The Commission has been able to establish that the undertakings concerned had been engaged for years in an overall anti-competitive plan agreed upon at least in 1992, by means of secret-price fixing arrangements which they have, at least on some occasions, complemented with sales quota and market-sharing arrangements and exchanges of information. The Commission relies in particular on the following evidence (this list is not exhaustive):
- the setting up of a system of regular general and national/regional cartel meetings which provided the structure for continuing collusion;
- the statements of Mougeot and Sappi and the evidence provided by AWA on "improper" meetings in its reply to the Commission request for information;
- the detailed report of the general cartel meeting on 2 February 1995;
- the detailed reports and statements concerning the national/regional cartel meetings obtained from Mougeot and Sappi;
- the price lists and notes on price increases found on the premises of or obtained from AWA, Sappi, Torraspapel and Unipapel (Sappi's agent in Portugal);
- the notes, letters/faxes and statements from several different sources indicating collusive contacts between the competitors;
- the pattern of virtually exact correspondence in the timing, amount and announcement dates of the price increases which each producer implemented on the various national markets, coupled with the documents indicating collusive contacts.
(253) Collusion on prices and the fixing of sales quotas and market shares were inextricably linked aspects of the same overall plan. Consequently, the agreements reached on various occasions, in particular at the meetings identified in the Decision, cannot be considered as separate infringements. The uniform announcements of price increases, of which there is documentary evidence since January 1994 until September 1995 (these being the effective dates of the increases), demonstrate implementation of the overall plan.
(254) At an AEMCP meeting in September 1993 it was decided that the cartel should be restructured by separating the general meetings, at which prices could be fixed for the major European markets, from the official AEMCP meetings (see paragraphs (107) to (109)). This shows that until that time the official meetings had served the same purpose with regard to the collusive conduct as the separate meetings did subsequently.
(255) The period for which the Commission has extensive evidence of regular meetings and contacts of a national or regional character begins in January 1992. The evidence relates in particular to meetings concerning the Spanish and Portuguese markets. Other meetings and contacts beginning at the same time concern the markets in France, Italy, the Nordic countries and the United Kingdom. Moreover, several parties have admitted in their statements and replies to the Commission request for information (as well as in their replies to the Statement of Objections) their direct participation to the regular collusive meetings that took place at least from the beginning of 1992 onward.
(256) The concurrence of this factual evidence allows the beginning of the cartel to be dated no later than January 1992.
(257) Within the period from January 1992 to September 1995, the available evidence shows not only that there was a framework of collusive contacts and that price agreements were reached within that framework, but that these agreements were in fact implemented, in particular between January 1994 and September 1995.
1.4.5.2. The evidence on individual participation
(a) Introduction
(258) In view of the facts described in chapter, the Commission considers that the agreements and concerted practices which were found to exist formed part of systems of regular meetings and other contacts aimed at price fixing -supported by the fixing of sales quotas, market share allocation, and the exchange of sensitive commercial information- and that all of this behaviour formed part of an overall plan pursuing a common objective of distorting the movement of prices.
(259) The proper approach in a case such as the present one is to demonstrate the existence and operation of the cartel as a whole, and then to link each of the participants to it, showing its participation in the common scheme and for what period each producer participated(301).
(260) In order to find that a given producer participated in the cartel, it is not necessary to prove its participation in every manifestation of that cartel. When it has been found that an undertaking has contributed by its own conduct to the common objective of the cartel, it can also be held responsible, throughout the entire period of its participation in that infringement, for conduct engaged in by other undertakings in the context of the same infringement. The Commission must in such cases show that the undertaking in question was aware of the actual conduct planned or put into effect by other undertakings in pursuit of the same objective, or that it could reasonably have foreseen it and that it was prepared to take the risk(302).
(261) According to the case-law of the Court of Justice, as long as the Commission has been able to establish that an undertaking has participated in the meetings at which price initiatives had been decided on, planned and monitored, it is for that undertaking to adduce evidence that it had not subscribed to those initiatives. There must be indeed a presumption that the undertakings participating in concerted arrangements and remaining active on the market take account of the information exchanged with their competitors when determining their conduct on that market. Following the concerted action decided upon at the meetings of the producers, an undertaking is bound to take account, directly or indirectly, of the information obtained during the course of those meetings in determining the policy that it intends to follow on the market. Similarly, its competitors are bound to take into account, directly or indirectly, the information disclosed to them by that undertaking about the course of conduct which it has itself decided upon or which it contemplates adopting on the market(303). It follows that the participation of an undertaking in the collusion may be considered established at least until the date of the last decision to be implemented following a meeting in which that undertaking has participated, unless it has provided evidence that it dissociated itself from decisions reached on agreed action. In this respect, any failure to put the concerted decisions into effect is another matter and does not suffice to refute such participation.
(262) The available evidence shows the participation of each of the producers concerned. It also allows the role of each participant to be identified. In what follows the principal items of evidence (direct or indirect) of participation in the cartel are summarised for each participant.
(b) AWA, Koehler, Sappi, Stora, Torraspapel and Zanders
(263) AWA, Koehler, Sappi, Stora, Torraspapel and Zanders were the largest suppliers in the Community and the EEA during the entire period for which there is evidence of continuous cartel activity. All of the six undertakings were selling carbonless paper in all or most of the Member States and also in Norway and Iceland. For all these companies, except Sappi, there is evidence that they were clearly playing leading roles in the cartel.
(264) Starting from at least January 1992(304) and until September 1993 the participation of those six companies in the cartel can be established in the first place by statements from Sappi, Mougeot and AWA as well as by their membership of the AEMCP and regular participation in its meetings. These companies had all been AEMCP members before the year 1992. Until the separation of the cartel and the trade association activities in or after the meeting of 14 September 1993, the AEMCP members used the association's meetings for price-fixing purposes (see paragraphs (107) to (113)).
(265) For the same period there is evidence showing that all six companies also participated in national and/or regional cartel meetings.
(266) Those six companies all participated in the AEMCP meeting of 14 September 1993 where a decision was taken to "restructure" the cartel, i.e. to separate the cartel and trade association activities (see paragraph (113)). After that meeting each of them continued to participate regularly in national and/or regional cartel meetings. The documentary evidence shows that AWA, Koehler, Stora and Torraspapel participated in all of the national and regional cartel meetings identified, and that Sappi and Zanders participated in most of them (see Annex II).
(267) From the "restructuring" of the cartel onward, all of them formed part of the cartel at European level, and thus continued to be full members of it. Indeed, they also participated in some or all of the general cartel meetings for which the Commission has found evidence. In particular, they all participated in the general cartel meetings of 22 September 1994 (see paragraphs (117), (121), (124), (125), (189) and (207)).
(268) The documentary evidence on price increases agreed at the meetings shows a close relationship between the increases agreed at the general cartel meetings and those agreed at the national/regional cartel meetings. This fact, together with the evidence on participation in the national/regional cartel meetings, confirms that the six producers adhered to the general cartel plan and to the co-ordination of the cartel at the European level.
(269) Concerning the end of the collusion, although some elements may suggest that the cartel continued afterwards, the Commission limits itself to the period up to September 1995 for the purposes of the present proceedings for the reasons set out in paragraph (75). Indeed, during the general cartel meeting on 2 February 1995, price increases were decided for a period ending in September 1995 (price increases in Italy and the United Kingdom)(305). AWA, Koehler, Sappi, Stora, Torraspapel and Zanders adhered to the agreements reached at this general cartel meeting that included the decision to increase prices in September 1995. Nothing suggests that they distanced themselves from the decisions taken at the meeting held on 2 February 1995.
(270) AWA admits participation in the cartel from January 1992 until summer 1995, Stora (MHTP) from the end of 1992 to the middle of 1995 and Zanders from 1992 to autumn 1995. Koehler does not contest some of the facts for the period from autumn 1993 to May 1995 (inclusive). Sappi admits participation in the cartel "from January 1992 until a date prior to its approach to the Commission on 19 September 1996"(306).
(271) On that basis, the Commission concludes that AWA, Koehler, Sappi, Stora, Torraspapel and Zanders participated as full members in the cartel from at least January 1992 until at least September 1995, i.e. as long as an element of the overall agreement was applicable.
(c) Other AEMCP members: Mougeot and Copigraph (Bolloré)
(272) Mougeot has admitted participation in the cartel from September 1993 until July 1995. Representatives of Mougeot first attended an AEMCP meeting on 26 May 1992, even if Mougeot itself claims that it joined the association only at the end of that year. Mougeot also participated in a French market cartel meeting in spring 1992. That meeting was probably held in April, but as there is no date specified for it the Commission considers that Mougeot was a member of the cartel from at least May 1992.
(273) Mougeot was an AEMCP member and regularly attended the associations' meetings, which were directly concerned with price fixing until September 1993. Moreover, Mougeot attended the AEMCP meeting of 14 September 1993 where the restructuring of the cartel was agreed. Mougeot has admitted that after that date it participated in one further general cartel meeting held on 22 September 1994. Moreover, it is established that Mougeot adhered to the agreements reached at the general cartel meeting held on 2 February 1995. In addition, it has admitted regular participation in French market cartel meetings and in two other national cartel meetings between October 1993 and summer 1995. Mougeot has also confirmed that even when it did not attend a meeting it received information on the price increases agreed at the meeting from other participants. Since Mougeot adhered to the agreements reached at the general cartel meeting held on 2 February 1995 and this included decision of increasing the prices in the United Kingdom and Italy in September 1995, the Commission concludes that Mougeot adhered to the cartel from May 1992 until at least September 1995.
(274) Copigraph (Bolloré) was also a member of the AEMCP and regularly attended the association's meetings during the whole period when they were directly concerned with price fixing, i.e. from at least January 1992 to September 1993. During the same period it also participated in national cartel meetings at least concerning the French and Spanish markets.
(275) Copigraph (Bolloré) attended the AEMCP meeting of 14 September 1993 where the restructuring of the cartel was agreed. There is evidence that Copigraph participated in a considerable number of national cartel meetings after September 1993 until spring 1995. Copigraph admits in its reply to the Statement of Objections its participation in the cartel until summer 1995(307). In addition, there are no particular circumstances showing that Copigraph has distanced itself from the cartel scheme between spring 1995 and September 1995.
(276) On that basis, it must be concluded that Copigraph (Bolloré) stood by the other cartel members throughout the whole duration of the infringement and the Commission considers therefore that Copigraph's adherence to the common cartel plan continued until September 1995.
(d) Non-AEMCP members: Carrs, Divipa and Zicuñaga
(277) The available evidence does not allow it to be said with certainty when the non-AEMCP companies, Carrs, Divipa and Zicuñaga, began to take part in the cartel.
(278) In its statements, Sappi has confirmed that Carrs attended UK market meetings in 1992, but it has not specified any dates for these meetings. The first meeting date which has been identified for Carrs is 14 January 1993, and its participation in the cartel is accordingly regarded as having started then at the latest. After that date it participated in at least one further meeting, which was held on 9 November 1993. The prices fixed at this meeting were to be applied in February 1994. Carrs admits in its reply to the Statement of Objections that it was active in the collusion relating to the UK market (including the Irish market) as from January 1993. It recalls that its participation was active during 1993 and 1994 and that from the end of 1994, "although it generally no longer attended meetings, it was kept informed of the conclusions of these meetings by telephone - generally by IDEM [AWA]". Carrs can not directly confirm on what dates it attended UK market cartel meetings, but it confirms that during its participation there were more meetings than those identified in the Commission Statement of Objections(308).
(279) After February 1994 Carrs regularly announced to customers the price increases for sheets which had been agreed at the general cartel meetings for the UK and Irish markets(309).
(280) As described in paragraph (228), an increase for the UK market to be implemented on 1 September 1995 was decided at the general cartel meeting of 2 February 1995. It can be concluded that Carrs was informed of the decision taken at this general cartel meeting and adapted its competitive behaviour to that decision. Carrs has not contested its participation in the cartel up to the end of the period subject to the present proceedings.
(281) Even if Carrs was a small player in the European level, it was a much more important actor in the UK market. According to Sappi's estimates, in 1995 Carrs was the fifth largest supplier to the UK market (after AWA, Sappi, Stora and Koehler), with a market share only a little smaller than that of Koehler (both ± 10 %)(310). Carrs has also been an innovator in the carbonless paper market, constantly developing more sophisticated and advanced products. It was thus in its interest to keep carbonless paper prices up in the UK market. Given Carrs' position on the UK market, it is not likely that the cartel could have functioned in that particular area without Carrs' participation.
(282) On that basis, the Commission considers that Carrs participated in the cartel from January 1993 until September 1995.
(283) The first cartel meetings Divipa and Zicuñaga attended were held on 5 March 1992(311) and 19 October 1993(312) respectively, from which dates their participation in the cartel may be said to have started. The last meeting for which there is evidence of participation by Divipa and Zicuñaga was held on 19 October 1994(313). At that meeting the participants including Divipa and Zicuñaga agreed on price increases and target prices to be implemented in January 1995(314). The Commission concludes that Divipa and Zicuñaga participated in the cartel at least until January 1995.
(284) Carrs maintains that it only participated in cartel meetings concerning the UK and Irish markets and that it had no knowledge or realisation that these meetings were one part of an alleged cartel that covered the whole of the EEA. It claims that "as a producer of sheets, whose primary market was the UK, a country with a unique distribution and pricing structure, Carrs had no interest in any wider arrangements"(315).
(285) Divipa and Zicuñaga contest in their replies to the Statement of Objections any participation to any collusion neither in Spain nor on other European markets or at European level; contacts, if any, were only with Spanish competitors. Therefore these two companies deny any participation in nor even knowledge of collusion at European level.
(286) The Commission considers that, although Carrs, Divipa and Zicuñaga have been found to have participated only in national cartel meetings, and only those concerning the UK market (Carrs) or the Spanish market (Divipa and Zicuñaga), they must have understood that the cartel covered the whole territory that became the EEA in 1994.
(287) The two levels of meetings were indeed closely intertwined and no participants to the national meetings could ignore the fact that the purpose of these meetings was complementary to the general cartel meetings (see paragraphs (89) to (94), and, for example (197), (211), (279), (280)). In addition, all the major carbonless paper producers, who were known to be selling their products throughout the EEA, participated alongside them in the cartel activities on the UK and Spanish markets. Certain of these companies also played leading roles in the cartel with respect to these two markets.
(288) The Commission has detailed information on sales in the territory that became the EEA in 1994, by country, covering most of the reference period of the cartel, for the following companies: AWA, Divipa, Koehler, Mougeot, Sappi, Stora, Torraspapel, Zanders and Zicuñaga(316). It may be recalled that at the time of the infringement more than 56 % of the carbonless paper companies' aggregate sales in the EEA was outside their respective domestic markets (see paragraph (30)). The reference period of the cartel was also characterised by significant trade flows between the Community and different EFTA countries. In 1994, substantial quantities of carbonless paper were sold to Austria, Finland and Sweden. From 1994 onwards trade flows also existed with Iceland and Norway.
(289) Under all these circumstances, Carrs, Divipa and Zicuñaga could not have considered that the national cartel activities they were involved in were lacking any wider dimension. Therefore, they have to be held responsible for the infringement as a whole, and not only with respect to the above-mentioned particular markets(317).
1.4.5.3. Assessment of the parties' factual arguments
(a) As to the objectives of the cartel
(290) AWA, MHTP (Stora) and Koehler argue that the cartel concerned mainly price-coordination and that sales quotas or market shares were agreed only occasionally. Koehler submits that there was no agreement on sales quotas or market shares at general European level(318).
(291) MHTP (Stora) and Koehler also argue that there was no general exchange of individual sales figures. They argue that the exchanges referred to by the Commission clearly constitute isolate incidents. Koehler submits that no detailed, individual information about firms' prices and sales volumes at general European level was exchanged. It argues that "exchanges of past sales volumes was confined to a few specific regional cases"(319).
(292) The Commission maintains that, while the principal objective of the global anti-competitive plan was to agree price increases, in certain national cartel meetings sales quotas were allocated and market shares were fixed(320). The purpose of these measures was to ensure implementation of the price increases. In addition, the minutes of the general cartel meeting held on 2 February 1995 indicate that the sales volumes and market shares were also on the agenda of the general cartel meetings. The Commission also underlines that several meeting minutes provide evidence on exchange of confidential information in relation to the allocation of sales quotas and fixing of market shares. Finally, its should be noted that in most cases when there are minutes or other reports on the cartel meeting, the documents contain direct evidence or references to allocation of sales quotas, fixing of market shares and/or exchange of sensitive information.
(b) As to the evidence on cartel meetings
(b) (1) AEMCP meetings and general cartel meetings
(293) Koehler, Mougeot and Copigraph contest the Commission finding on the anti-competitive nature of the AEMCP meetings before September 1993. Koehler argues that the factual description of the cartel does not give any evidence or details of anti-competitive content of the official AEMCP meetings up to September/October 1993(321). Mougeot contests its previous statement by claiming that "the Statement of Objections does not prove that the AEMCP meetings would have served as a framework for collusive mechanisms before restructuring of the association in September 1993". Mougeot also claims that it first attended an AEMCP meeting as a member of the association on 9 February 1993 and that before that it was only an observer(322).
(294) Copigraph submits that the whole cartel was launched when [an AWA employee]* proposed during an AEMCP meeting held in Frankfurt on 14 September 1993 a cartel mechanism for European carbonless paper producers. Copigraph argues that before that, the companies did not exchange within the AEMcP any anti-competitive information(323).
(295) The Commission considers that Sappi, Mougeot and AWA statements read together prove that general cartel meetings were held from at least 1992 onwards. Moreover, the evidence from Sappi confirm that before September 1993 collusion took place also in AEMCP meetings or in meetings held at the occasion of these meetings (paragraphs (112), (113)). The fact that Mougeot was not yet an AEMCP member at the time of the first association's meetings it attended, does not excuse it from the collusion that took place in the meetings, as there is evidence that Mougeot participated in collusive contacts during general cartel meetings as from May 1992. As for Copigraph's argument, it must be reminded that the documentary evidence obtained by the Commission clearly shows that the cartel was operating before September 1993 both at national/regional and general level (i.e. European wide level in the context of the AEMCP meetings).
(b)(2) National or regional cartel meetings
(296) With regard to the national or regional cartel meetings Copigraph, Koehler and Mougeot contest the evidence received from Sappi and AWA on their participation in the cartel meetings before September 1993. Copigraph, Koehler and Zanders also refute the evidence given by AWA on their participation in the cartel meetings after spring 1995.
(297) Copigraph argues that AWA's evidence concerning the period before September 1993 is nullified by the evidence given by Sappi, because Sappi does not explicitly mention Copigraph among the participants in the French market meetings it has identified for the same period(324).
(298) Koehler claims that the statements and documents from Sappi and AWA are vague, in particular, because they merely state that Koehler is believed to have attended the meetings or that the employee giving the statement is not sure whether Koehler attended. Regarding the content of the meetings, Koehler argues(325) that AWA's statement means little and proves nothing when its says that "at some of these meetings described above, carbonless paper prices were also discussed, including discussions of historical trends, but also extending to an exchange of intentions regarding announcements of price increases"(326). It also claims that none of the documentary evidence concerning national cartel meetings before September/October 1993 gives support to the Commission finding that these meetings involved collusion(327).
(299) Koehler also claims that there can not have been a cartel from January 1992 to around September 1993 in which Koehler was involved because its prices fell - with some fluctuations - during the said period. Koehler argues that "this alone shows that there was no cartel during this period"(328).
(300) The Spanish companies, Torraspapel, Zicuñaga and Divipa contest in totality the findings made by the Commission in the Statement of Objections. These companies pretend that the Commission has failed to provide direct evidence of any collusion and/or participation of them to these arrangements and misinterpreted the existing documents. In addition, they argue that the statements made by Sappi, Mougeot and AWA can not be held as valid proofs of an infringement and that the statements are even suspect since those are not vouching their authenticity. According to the Spanish companies, the Commission has merely accepted the statements of Sappi, AWA and Mougeot without checking them and carrying out the necessary investigations. Zicuñaga also claims that the documents given by Sappi do not constitute a proof of the cartel because Sappi was not vouching for their authenticity. Furthermore, the Spanish companies claim that Sappi, AWA and Mougeot have an interest in concentrating the Commission's attention on the markets of Spain and Portugal, which are minor compared to those where Sappi, AWA and Mougeot have more important activities (like UK and France)(329).
(301) The Commission does not have any reason to believe that Sappi, AWA and Mougeot would have misrepresented the truth in the statements, documents and replies they have provided. This evidence makes it abundantly clear that they have themselves participated as full members in the cartel. Their statements and replies are against their own interests and are wholly credible in the light of the documentary evidence available.
(302) The arguments that Mougeot's and Sappi's statements as well as AWA's reply are "vague" or "imprecise" and that they therefore prove nothing must also be dismissed. In most cases a considerable amount of time had elapsed between the cartel meetings and the statements or replies. Therefore it is understandable that the persons telling about the cartel have used cautious expressions. The Commission considers that due to this the information may be incomplete in some areas, but there is no reason to believe that something in the statements is incorrect. The Commission believes that the persons and companies giving the statements would not have named other companies even as potential participants in cartel meetings if they were not involved in the cartel during that period. The uncertainties relate only to the question whether certain cartel members participated in an individual meeting, not to their participation in the overall anti-competitive plan. This problematic is comparable to the fact that the companies have found it more easy to identify the period during which meetings with a view to implement the overall cartel strategy were held than to identify the venues of individual cartel meetings. Moreover, there is abundant direct evidence concerning participants in meetings and agreements reached that fits together with the statements made by Mougeot and Sappi.
(303) The Commission must also dismiss Zicuñaga's claim that the documents provided by Sappi do not constitute reliable evidence, because Sappi itself has stated that it can not validate the documents. Only in its initial letter to the Commission, dated 29 September 1996, did Sappi express reservations about the authenticity and validity of the cartel documents provided by its former employee. Sappi has explained that, as the documents were given to it in the context of a compensation negotiation due to dismissal of the person in question, it did not know how the documents should be interpreted. After this initial contact, Sappi launched an internal investigation in the matter and in its subsequent submissions to the Commission no such reservations were made on any of the documents and statements provided to the Commission. This includes Sappi's statement of 11 November 1996 and submission of 18 May 1999 compiling and assessing the main elements of evidence provided to the Commission starting from the first documents given on 29 September 1996.
(304) It should also be noted that the participation of Koehler, Mougeot and Copigraph in the cartel before September 1993 and the overall participation of the Spanish companies is in each case proven by more than one statement or document.
6. PART II - LEGAL ASSESSMENT
2.1. JURISDICTION
(305) The arrangements between the undertakings concerned applied to the whole territory of the EEA.
(306) The EEA Agreement, which contains provisions on competition analogous to the EC Treaty, came into force on 1 January 1994. The present Decision therefore includes the application as from that date of the rules on competition of the EEA Agreement (in particular Article 53(1)) to the arrangements to which objection is taken(330).
(307) In so far as the arrangements affected competition in the common market and trade between Member States of the Community, Article 81 of the Treaty is applicable. In so far as the cartel operations had an effect on trade between Community and EFTA countries or between EFTA countries which were part of the EEA, Article 53 of the EEA Agreement is applicable.
(308) If an agreement or practice affects only trade between Member States of the Community, the Commission retains competence, and applies Article 81 of the Treaty. On the other hand if an agreement affects trade only between EFTA States, then the EFTA Surveillance Authority (ESA) is alone competent and will apply the EEA competition rules in Article 53 of the EEA Agreement(331).
(309) In the present case the Commission is the authority competent to apply both Article 81(1) of the Treaty and Article 53(1) of the EEA Agreement, on the basis of Article 56 of the EEA Agreement, since at any rate the cartel had an appreciable effect on trade between EC Member States and competition in the common market.
2.2. APPLICATION OF ARTICLE 81 OF THE TREATY AND ARTICLE 53 OF THE EEA AGREEMENT
2.2.1. ARTICLE 81(1) OF THE EC TREATY AND ARTICLE 53(1) OF THE EEA AGREEMENT
(310) Article 81(1) of the Treaty prohibits as incompatible with the common market all agreements between undertakings, decisions by associations of undertakings or concerted practices which may affect trade between Member States and which have as their object or effect the prevention, restriction or distortion of competition within the common market, and in particular those which directly or indirectly fix purchase or selling prices or any other trading conditions, limit or control production and markets, or share markets or sources of supply.
(311) Article 53(1) of the EEA Agreement (which is modelled on Article 81(1) of the Treaty) contains a similar prohibition. However the reference in Article 81(1) to trade "between Member States" is replaced by a reference to trade "between contracting parties" and the reference to competition "within the common market" is replaced by a reference to competition "within the territory covered by ... (the EEA) agreement".
2.2.2. AGREEMENTS AND CONCERTED PRACTICES
(312) Article 81(1) of the Treaty and Article 53(1) of the EEA Agreement prohibit agreements, decisions of associations and concerted practices.
(313) An agreement can be said to exist when the parties adhere to a common plan which limits or is likely to limit their individual commercial conduct by determining the lines of their mutual action or abstention from action in the market. It does not have to be made in writing; no formalities are necessary, and no contractual sanctions or enforcement measures are required. The fact of agreement may be express or implicit in the behaviour of the parties.
(314) In its judgement in Joined Cases T-305/94 etc. Limburgse Vinyl Maatschappij and Others v Commission ("PVC II")(332), the Court of First Instance stated that "it is well established in the case law that for there to be an agreement within the meaning of Article [81(1)] of the Treaty it is sufficient for the undertakings to have expressed their joint intention to behave on the market in a certain way"(333).
(315) Article 81 of the Treaty(334) draws a distinction between the concept of "concerted practices" and that of "agreements between undertakings" or of "decisions by associations of undertakings"; the object is to bring within the prohibition of that Article a form of co-ordination between undertakings which, without having reached the stage where an agreement properly so-called has been concluded, knowingly substitutes practical co-operation between them for the risks of competition(335).
(316) The criteria of co-ordination and co-operation laid down by the case law of the Court, far from requiring the elaboration of an actual plan, must be understood in the light of the concept inherent in the provisions of the Treaty relating to competition, according to which each economic operator must determine independently the commercial policy which he intends to adopt in the common market. Although that requirement of independence does not deprive undertakings of the right to adapt themselves intelligently to the existing or anticipated conduct of their competitors, it strictly precludes any direct or indirect contact between such operators the objet or effect whereof is either to influence the conduct on the market of an actual or potential competitor or to disclose to such a competitor the course of conduct which they themselves have decided to adopt or contemplate adopting on the market(336).
(317) Thus conduct may fall under Article 81(1) of the Treaty and Article 53(1) of the EEA Agreement as a "concerted practice" even where the parties have not subscribed to a common plan defining their action in the market but knowingly adopt or adhere to collusive devices which facilitate the co-ordination of their commercial behaviour(337).
(318) Although in terms of Article 81(1) of the Treaty the concept of a concerted practice requires not only concertation but also conduct on the market resulting from the concertation and having a causal connection with it, it may be presumed, subject to proof to the contrary, that undertakings taking part in such a concertation and remaining active in the market will take account of the information exchanged with competitors in determining their own conduct on the market, all the more so when the concertation occurs on a regular basis and over a long period. Such a concerted practice is caught by Article 81(1) even in the absence of anti-competitive effects on the market(338).
(319) It is not necessary, particularly in the case of a complex infringement of long duration, for the Commission to characterise it as exclusively one or other of these forms of illegal behaviour. The concepts of agreement and concerted practice are fluid and may overlap. Indeed, it may not even be possible realistically to make any such distinction, as an infringement may present simultaneously the characteristics of each form of prohibited conduct, while considered in isolation some of its manifestations could accurately be described as one rather than the other. It would however be artificial analytically to sub-divide what is clearly a continuing common enterprise having one and the same overall objective into several discrete forms of infringement. A cartel may therefore be an agreement and a concerted practice at the same time. Article 81 lays down no specific category for a complex infringement of the present type(339).
(320) In its PVC II judgement(340) the Court of First Instance stated that "[i]n the context of a complex infringement which involves many producers seeking over a number of years to regulate the market between them, the Commission cannot be expected to classify the infringement precisely, for each undertaking and for any given moment, as in any event both those forms of infringement are covered by Article [81] of the Treaty".
(321) An "agreement" for the purposes of Article 81(1) of the Treaty and Article 53(1) of the EEA Agreement does not require the same certainty as would be necessary for the enforcement of a commercial contract at civil law. Moreover, in the case of a complex cartel of long duration, the term "agreement" can properly be applied not only to any overall plan or to the terms expressly agreed but also to the implementation of what has been agreed on the basis of the same mechanisms and in pursuance of the same common purpose.
(322) As the Court of Justice (upholding the judgement of the Court of First Instance) has confirmed in Case C-49/92 P Commission v Anic,(341) it follows from the express terms of Article 81(1) of the Treaty that agreement may consist not only in an isolated act but also in a series of acts or a course of conduct.
(323) A complex cartel may thus properly be viewed as a single continuing infringement for the time frame in which it existed. The agreement may well be varied from time to time, or its mechanisms adapted or strengthened to take account of new developments. The validity of this assessment is not affected by the possibility that one or more elements of a series of actions or of a continuous course of conduct could individually and in themselves constitute a violation of Article 81(1) of the Treaty and Article 53(1) of the EEA Agreement.
(324) Although a cartel is a joint enterprise, each participant in the agreement may play its own particular role. One or more may exercise a dominant role as ringleader or ringleaders. Internal conflicts and rivalries or even cheating may occur, but will not prevent the arrangement from constituting an agreement or concerted practice for the purposes of Article 81(1) of the Treaty and Article 53(1) of the EEA Agreement where there is a single common and continuing objective.
(325) The mere fact that each participant in a cartel may play the role which is appropriate to its own specific circumstances does not exclude its responsibility for the infringement as a whole, including acts committed by other participants but which share the same unlawful purpose and the same anti-competitive effect. An undertaking which takes part in the common unlawful enterprise by actions which contribute to the realisation of the shared objective is equally responsible, for the whole period of its adherence to the common scheme, for the acts of the other participants pursuant to the same infringement. This is certainly the case where it is established that the undertaking in question was aware of the unlawful behaviour of the other participants or could have reasonably foreseen or been aware of them and was prepared to take the risk(342).
2.2.3. SINGLE, CONTINUOUS INFRINGEMENT
(326) The statements and documentation given by Sappi show that there have been collusive contacts between European carbonless paper producers at least since the mid-1980s. However, neither documentary evidence nor statements from the other cartel participants are available to enable the Commission to assess the nature of this behaviour in terms of Article 81 of the Treaty during the period from the mid-1980s to 1992.
(327) From the beginning of 1992, however, there is ample evidence to show the existence of a single and continuous collusion inside the territory that became the EEA in 1994. The agreement to enter into this global plan with a view to restrict competition can therefore be dated back at least to the beginning of 1992. This collusion was in pursuit of a single anti-competitive economic aim: increasing carbonless paper prices in the whole territory that became the EEA in 1994.
(328) It results from the evidence collected by the Commission and in particular from Mougeot's statement and the evidence from Sappi and AWA that there was a general cartel plan for the whole EEA aiming at increasing carbonless paper prices. It is indeed clear that the undertakings used AEMCP meetings to carry out this plan up to September 1993 and implemented it subsequently through non-AEMCP meetings. The working out of the plan via regular meetings and frequent price increases is not to be seen as a set of separate agreements but rather as the implementation of the same overall and illegal scheme under various different operational arrangements. The types of conduct in question can be regarded as constituent elements of a single infringement because they formed part of an overall plan pursuing a common objective(343).
(329) The Commission collected evidence of collusion between competitors during all the period from the beginning of 1992 to September 1995.
(330) This plan, which was subscribed to by all the AEMCP member companies - AWA, Binda, Copigraph, Koehler, Sappi, Stora, Torraspapel, Zanders and Mougeot, which joined the AEMCP in 1992 - and also by the non-AEMCP companies Carrs, Divipa and Zicuñaga, was implemented over a period of more than three and a half years employing the same mechanisms and pursuing the same common purpose of eliminating competition. The participants in these unlawful conducts knew, or ought to have known, that it was part of an overall plan in pursuit of that common unlawful object(344).
(331) Given the common design and common objective of eliminating competition in the carbonless paper industry, which the producers pursued steadily, in spite of the suspension period in the cartel, the Commission considers that the conduct in question constituted a single continuing infringement of Article 81(1) of the Treaty and Article 53(1) of the EEA Agreement.
2.2.4. RESTRICTION OF COMPETITION
(332) The complex of arrangements in the present case had the object and effect of restricting competition in the Community and EEA.
(333) Article 81(1) of the Treaty and Article 53(1) of the EEA Agreement expressly mention as restrictive of competition agreements and concerted practices which:
- directly or indirectly fix prices or any other trading conditions;
- limit or control production or markets;
- share markets or sources of supply.
(334) The cartel has to be considered as a whole and in the light of the totality of the circumstances. The principal aspects of the complex of agreements and arrangements in this cartel which can be characterised as restrictions of competition within the meaning of Article 81(1) of the Treaty and Article 53(1) of the EEA Agreement are:
- agreeing concerted price increases;
- allocating sales quotas and fixing market shares (mainly in some national cartel meetings);
- devising and applying a monitoring system to ensure the implementation of the restrictive agreements;
- adapting their individual conduct and pricing in order to ensure the implementation of the restrictive agreements;
- participating in regular meetings and other forms of contact in order to agree those restrictions and to implement or modify them as required.
(335) Those kinds of arrangements have as their object the restriction of competition within the meaning of Article 81(1) of the Treaty and Article 53(1) of the EEA Agreement. The arrangements are described in detail in Part I of this Decision. This description is supported by widespread and clear evidence, systematically referred to throughout the text.
(336) Whilst the competition-restricting object of the agreements and concerted practices is sufficient to conclude that Article 81(1) of the Treaty and Article 53(1) of the EEA Agreement apply, the competition-restricting effects of the arrangements in question have nonetheless also been established (see paragraphs to (382) to (387)).
2.2.5. EFFECT UPON TRADE BETWEEN MEMBER STATES OF THE COMMUNITY AND BETWEEN EEA CONTRACTING PARTIES
(337) The continuing agreement between the producers had an appreciable effect upon trade between Member States of the Community and between Contracting Parties of the EEA Agreement.
(338) Article 81(1) of the Treaty is aimed at agreements which might harm the attainment of a single market between the Member States of the Community, whether by partitioning national markets or by affecting the structure of competition within the common market. Similarly, Article 53(1) of the EEA Agreement is directed at agreements that undermine the realisation of a homogeneous European Economic Area.
(339) As demonstrated in the section on Inter-state trade (paragraphs (29) to (31)), the carbonless paper market is one which is characterised by a substantial volume of trade between Member States of the Community. There is also a considerable volume of trade between the Community and EFTA countries which are members of the EEA. All those EFTA countries, including Austria, Finland and Sweden prior to their accession to the Union, import all their requirements of carbonless paper.
(340) The application of Article 81(1) of the Treaty and Article 53(1) of the EEA Agreement to a cartel is not, however, limited to that part of the members' sales which actually involve the transfer of goods from one State to another. Nor is it necessary, in order for these provisions to apply, to show that the individual conduct of each participant, as opposed to the cartel as a whole, affected trade between Member States(345).
(341) In the present case, the cartel arrangements covered virtually all trade throughout the Community and EEA. The existence of price-fixing, allocation of sales quotas and market shares must have resulted, or was likely to result, in the automatic diversion of trade patterns from the course they would otherwise have followed(346).
2.2.6. PROVISIONS OF COMPETITION RULES APPLICABLE TO AUSTRIA, FINLAND, ICELAND, LIECHTENSTEIN, NORWAY AND SWEDEN
(342) The EEA Agreement entered into force on 1 January 1994. For the period prior to that date during which the cartel operated, the only provision applicable to the present proceedings is Article 81 of the Treaty; in so far as the cartel arrangements within that period restricted competition in Austria, Finland, Iceland, Liechtenstein, Norway and Sweden (then EFTA Member States), they were not caught by that provision.
(343) In the period 1 January to 31 December 1994, the provisions of the EEA agreement applied to the six EFTA Member States, which had joined the EEA; the cartel thus constituted a violation of Article 53(1) of the EEA Agreement as well as of Article 81(1) of the Treaty, and the Commission is competent to apply both provisions. The restriction of competition in these six EFTA states during this one-year period falls under Article 53(1) of the EEA Agreement.
(344) After the accession of Austria, Finland and Sweden to the Union on 1 January 1995, Article 81(1) of the Treaty became applicable to the cartel insofar as it affected competition in those markets. The operation of the cartel in Norway, Iceland and Liechtenstein remained in violation of Article 53(1) of the EEA Agreement.
(345) In practice, it follows that insofar as the cartel operated in Austria, Finland, Norway, Sweden, Iceland and Liechtenstein it constituted a violation of the EEA and/or Community competition rules as from 1 January 1994.
2.2.7. DURATION OF THE INFRINGEMENT
(346) Although Sappi's statements indicate that there were collusive contacts between carbonless paper producers from at least the mid-1980s, the Commission will in the present case limit its assessment under Article 81 of the Treaty and Article 53 of the EEA Agreement and the application of any fines to the period from January 1992 onward. This is the moment from which the Commission has evidence of regular collusive contacts between carbonless paper producers. It should of course be noted that in so far as the cartel affected Austria, Finland, Norway, Sweden, Iceland and Liechtenstein this does not constitute an infringement of the competition rules before 1 January 1994, when the EEA Agreement came into effect.
(347) The participation in the infringement of most of the addressees of this Decision is established from that date or a date close to it. Most of the addressees were already AEMCP members and many of them had been so since the AEMCP was set up in 1981.
(348) No date at which the cartel itself ceased to exist can be established but the Commission has a strong body of documentary evidence up to September 1995. It cannot be excluded that the collusion continued after that. However, for the purposes of assessing fines, the Commission will proceed on the basis that the cartel ended in September 1995.
(349) On that basis and the summary of the factual evidence concerning the participation of each company in the cartel, presented in paragraphs (263) to (288), the duration of the infringement established for each of them is as follows:
TABLE
2.3. LIABILITY FOR THE INFRINGEMENT
(350) It is established by the facts that throughout the specified periods Carrs, Divipa, Mougeot and Koehler participated directly and autonomously in the cartel. They are not, and were not at any material time, subsidiaries of other companies and will consequently be addressees of the present Decision.
(351) The question of the appropriate addressees of this Decision arises in the remaining cases, where the issue of the attribution of the liability to the subsidiary or to its parent company must be discussed or where a question of succession arises.
2.3.1. ARJO WIGGINS APPLETON
(352) Over the entire period of reference Arjo Wiggins Appleton plc, the parent company of the Arjo Wiggins group, participated directly and autonomously in the cartel through its division Arjo Wiggins Carbonless Paper Operation. Arjo Wiggins Appleton Limited (new name of Arjo Wiggins Appleton plc since 29 November 2001) will thus be an addressee of this Decision. The fact that AWA plc was taken over on 27 July 2000 (the very day of the adoption of the Statement of Objections) by the French undertaking Compagnie Worms & Cie (itself a subsidiary of the Agnelli Group) does not modify the choice of the Commission to address this Decision to AWA.
2.3.2. COPIGRAPH AND BOLLORÉ
(353) Copigraph SA was a wholly owned subsidiary of Bolloré SA (formerly known as Bolloré Technologies SA) during the time of the infringement and was acquired by AWA in November 1998. Copigraph ceased activity on 2 February 2000 with effect from 30 December 2000(347). Bolloré claims that it cannot be held responsible for Copigraph's behaviour, because Copigraph had complete economic autonomy. According to Bolloré this autonomy stems from the following: the management structures of Copigraph and Bolloré were strictly separate; Copigraph had its own infrastructure and Copigraph's commercial policy was independent because it acquired almost 35 % of its raw-material requirement from outside the Bolloré group, one of the sources being a competitor(348).
(354) Copigraph belonged to Bolloré's special papers division and the then head of division, [...]*, was simultaneously the Managing Director of Copigraph(349). In addition, the then Commercial Director of Copigraph, [...]*, had also held a sales position at the Thonon mill since 1994(350). Consequently, Bolloré SA was necessarily informed of its subsidiary's participation in the cartel.
(355) There is also evidence implicating the parent company, Bolloré SA directly in the cartel activities. Bolloré was a member of the AEMCP, whose official meetings also served as cartel meetings from January 1992 until September 1993. Bolloré's representative, the head of its special papers division [...]*, attended these cartel meetings together with the Commercial Director of Copigraph. The head of Bolloré's special papers division also participated in the French market cartel meeting of 1 October 1993. In all subsequent cartel meetings where individual representatives of Copigraph are identified the meeting was attended by the Commercial Director of Copigraph. All these meetings took place in 1994 and, as mentioned, the Commercial Director of Copigraph also held simultaneously a sales position in Bolloré.
(356) On that basis, the Commission concludes that Bolloré should be held responsible not only for its own conduct but also for the conduct of Copigraph in relation to the cartel, for the whole of the specified period.
2.3.3. SAPPI
(357) Sappi's carbonless paper business in Europe was managed at the time of the infringement by Sappi (UK) Limited and Sappi Europe SA. The individuals participating in the meetings between competitors and implementation of the decisions taken during these meetings were employed by these two subsidiaries of Sappi Limited. Sappi (UK) Limited was a subsidiary reporting directly to the parent company of the group Sappi Limited and, after May 1995, a wholly owned subsidiary of Sappi Europe Limited, itself a wholly owned subsidiary of Sappi Limited. Sappi Europe SA was a joint venture of Sappi UK Limited and another Sappi Limited wholly owned subsidiary reporting to the ultimate parent company (see paragraph (42)). Moreover, under the said circumstances, the participation of more than one subsidiary confirms that the participation in the cartel was a policy effectively decided by the parent company.
(358) The correspondence with the Commission prior to the Statement of Objections was made on behalf of Sappi Limited, Sappi Europe Limited and Sappi UK Limited. It is true that the reply to the Statement of Objections sent by the Commission to Sappi Limited alone was given on behalf of Sappi Europe Limited and Sappi (UK) Limited. The reply claimed that the Statement had been addressed to the wrong party without however giving any reason for this claim.
(359) The Commission maintains that Sappi Limited should be held responsible for the infringement and this Decision will be addressed to it.
2.3.4. STORA
(360) During the time of the infringement the Stora group carried on its carbonless activity through Stora Feldmühle AG and Stora Carbonless Paper GmbH. Until the end of 1992 the carbonless paper operations of the group were carried on directly by Stora Feldmühle AG. At the beginning of 1993 this business was confined to a new subsidiary of Stora Feldmühle AG, which was named Stora Carbonless Paper GmbH (SCP)(351).
(361) A concentration between Stora Kopparbergs Bergslags AB and Enso Oyj was cleared by the Commission in 1998(352). As a result, Stora Enso Oyj became the new parent company of the group at the end of December 1998. On 31 December 1998, Stora Enso Oyj sold a majority holding in SCP to Mitsubishi Paper Mills Ltd. After the acquisition SCP's name was changed to Mitsubishi HiTech Paper Bielefeld GmbH.
(362) On that basis, the Commission finds that Mitsubishi HiTech Paper Bielefeld GmbH should be held responsible for the conduct throughout the infringement period. In particular, SCP (now renamed Mitsubishi HiTech Paper Bielefeld GmbH) was for the purposes of the present proceedings the economic successor to Stora Feldmühle AG, having taken over its carbonless paper business within the group at the beginning of 1993. This Decision will therefore be addressed to Mitsubishi HiTech Paper Bielefeld GmbH.
2.3.5. TORRASPAPEL
(363) Sarriopapel y Celulosa SA (Sarrió) was at all material times (and still is) a wholly owned subsidiary of Torraspapel SA (Torraspapel). There is also evidence implicating the parent company directly in the cartel activities. In particular, persons from both Sarrióand Torraspapel participated in cartel meetings such as the AEMCP meeting on 14 September 1993, where the decision to separate the cartel and the trade association functions was taken. In addition, Torraspapel SA, addressee of the Statement of Objections, has not denied responsibility for the behaviour of Sarriopapel. Consequently, the present Decision will be addressed to Torraspapel SA.
2.3.6. ZANDERS
(364) Although International Paper had a majority shareholding in Zanders Feinpapiere, there is no indication that International Paper knew about the participation of Zanders to the cartel or was otherwise involved in it. Under these circumstances, the present Decision should be addressed to Zanders.
2.3.7. ZICUÑAGA
(365) Papelera Guipuzcoana de Zicuñaga SA became a subsidiary of Iberpapel Gestión S.A only in 1997. Zicuñaga claims, in its reply to the Statement of Objections, not to have been the carbonless paper producer, but a processor and distributor client of its French subsidiary "Papeteries de l'Atlantique SA". Nevertheless the evidence relating to the Spanish and Portuguese markets show the participation of "Zicuñaga". In addition, during the Oral Hearing, Zicuñaga confirmed that it is responsible for setting price policies for all paper products of the group and consequently, takes all price decisions also concerning Papeteries de l'Atlantique products. Therefore this Decision will be addressed to Papelera Guipuzcoana de Zicuñaga SA.
(366) On the basis of those considerations, this Decision will be addressed to the following:
- Arjo Wiggins Appleton Limited,
- Bolloré SA,
- Carrs Paper Ltd,
- Distribuidora Vizcaina de Papeles S.L.,
- Mitsubishi HiTech Paper Bielefeld GmbH,
- Papelera Guipuzoana de Zicuñaga SA,
- Papeteries Mougeot SA,
- Papierfabrik August Koehler AG,
- Sappi Limited,
- Torraspapel SA,
- Zanders Feinpapiere AG.
2.4. REMEDIES
2.4.1. ARTICLE 3 OF REGULATION NO 17
(367) Where the Commission finds there is an infringement of Article 81(1) of the Treaty or Article 53(1) of the EEA Agreement, it may require the undertakings concerned to bring such infringement to an end in accordance with Article 3 of Regulation No 17(353).
(368) In the present case the participants in the cartel went to considerable lengths to conceal their unlawful conduct. Virtually all documentary traces of the activities of the cartel were suppressed: almost no minutes, records, lists of participants or invitations survived. In these circumstances it is not possible to declare with absolute certainty that all the participants have put an end to the infringement. It is therefore necessary for the Commission to require the undertakings to which this Decision is addressed to bring the infringement to an end (if they have not already done so) and henceforth to refrain from any agreement, concerted practice or decision of an association which might have the same or a similar object or effect.
2.4.2. ARTICLE 15(2) OF REGULATION NO 17
2.4.2.1. General considerations
(369) Under Article 15(2) of Regulation No 17, the Commission may by decision impose upon undertakings fines of from EUR 1000 to EUR 1 million, or a sum in excess thereof not exceeding 10 % of the turnover in the preceding business year of each of the undertakings participating in the infringement where, either intentionally or negligently, they infringe Article 81(1) of the Treaty and Article 53(1) of the EEA Agreement.
(370) In fixing the amount of any fine the Commission must have regard to all relevant circumstances and particularly the gravity and duration of the infringement, which are the two criteria explicitly referred to in Article 15(2) of Regulation No 17.
(371) The role played by each undertaking party to the infringement will be assessed on an individual basis. In particular, the Commission will reflect in the fine imposed any aggravating or mitigating circumstances and will apply, as appropriate, the Notice on the non-imposition or reduction of fines in cartel cases(354).
2.4.2.2. The amount of the fines
(372) The cartel constituted a deliberate infringement of Article 81(1) of the Treaty and Article 53(1) of the EEA Agreement: with full knowledge of the restrictive character of their actions and, moreover, of their illegality, the leading producers combined to set up a secret and institutionalised system designed to restrict competition in a significant industrial sector.
(373) The amount of the fines is determined by the calculation of a basic amount that will be increased to take into account of aggravating circumstances or reduced to take account of attenuating circumstances.
(a) The basic amount
(374) The basic amount is determined according to the gravity and duration of the infringement.
(a)(1) Gravity of the infringement
(375) In its assessment of the gravity of the infringement, the Commission takes account of its nature, its actual impact on the market, where this can be measured, and the size of the relevant geographic market. It will also take into account the economic capacity of the offender to cause significant damage to other operators, in particular consumers, and the need to set the fine at a level that ensures that it has a sufficiently deterrent effect.
(a)(1)(i) Nature of the infringement
(376) It follows from the facts described in Part I that the present infringement consisted of price fixing market sharing practices, which are by their very nature the worst kind of violations of Article 81(1) of the Treaty and Article 53(1) of the EEA Agreement.
(377) The cartel arrangements involved all major operators in the EEA and were conceived, directed and encouraged at high levels in each participating company. By its very nature, the implementation of that type of cartel leads automatically to an important distortion of competition, which is of exclusive benefit to the producers participating in the cartel and is highly detrimental to customers and, ultimately, to the general public.
(378) The Commission therefore considers that the present infringement constitutes by its nature a very serious infringement of Article 81(1) of the Treaty and Article 53(1) of the EEA Agreement.
(379) AWA requests the Commission to take into account in setting the fines that in the present case the cartel was very limited in the scope, because there was no clear institutional structure, the cartel was essentially limited to price co-ordination, there was no effective monitoring and the carbonless paper producers continued to compete with each other. According to AWA, a distinction should be made between the present case which concerns "not a fully institutionalised cartel" and "strong" cartels with clear institutional structures like for instance the Cement cartel(355).
(380) Sappi also compares the present case to the Cement cartel case. Sappi argues that in accordance with the Cement case, the maximum figure for any fines should be set by reference to the European turnover in the product concerned. In addition, Sappi pleads that price fixing and market sharing are the only serious infringements(356).
(381) The Commission rejects AWA's and Sappi's arguments. Firstly it is clear that price-fixing and market sharing cartels by their nature jeopardise the proper functioning of the single market. Secondly, the structure established by the cartel participants has indeed sufficed to achieve the objectives of the overall plan. Moreover, the Court of First Instance has rejected in the Cement case(357) the parties' argument that some particular institutional structures were required to achieve a cartel agreement: "The infringement constitutes a single agreement by virtue of the identical nature of the objective pursued by each participant in the [...] agreement, not by virtue of the methods of implementing that agreement". Methods of implementing must only be proportionate to the objective of the agreement, and this is the case in the present proceedings. Finally, in the present case there is evidence that the cartel involved monitoring of the agreements' implementation and that this was mainly done by AWA itself (see also paragraphs (418) to (423)).
(a)(1)(ii) The actual impact of the infringement
(382) The Commission considers that the infringement, committed by undertakings which during the period covered by this Decision accounted for about 85-90 % of the supply of carbonless paper to the EEA, had an actual impact on the carbonless paper market (both regarding reels and sheets) in the EEA. The Commission has a large amount of evidence on implementation of the price agreements. Occasional quota and market sharing agreements have also occurred and appear to have been respected to at least a certain extent (see paragraph (244)), which shows that the cartel inevitably had an impact on the behaviour of the market participants and, thus, on the market.
(383) Concerted price increases formed the corner stone of the cartel. The Commission collected during the investigations carbonless paper producers' own documents on price increases. This information was complemented by a request for the producers to provide information on all price increases of general application (in percentage form) that each of them had announced since 1 January 1992. Even if the information provided by the companies did not cover the whole period and in some cases it was in a disparate form, these documents together show that the price increases agreed between producers were to large extent actually announced to customers (to printers and/or merchants). In certain cases where no price increase letters were available, the Commission has found documents reporting on internal decisions to implement the price increases.
(384) In particular, the documentary evidence shows that most of the price increases agreed at the general and national/regional cartel meetings for the period from January 1994 to September 1995 were actually announced to customers. The agreed or concerted increases thus served as a reference point in individual negotiations on transaction prices with customers.
(385) The members of the cartel accounted for almost the entire supply of carbonless paper on the EEA carbonless paper market. As a result of the collusive price increase initiatives, customers were faced with uniform price increases announcements, with hardly any possibility of obtaining supplies from a producer not involved in the cartel.
(386) There is also evidence that the implementation of agreed price increases was monitored and that failure to implement them would be discussed at the national or regional cartel meetings (see for instance paragraphs (97) to (106)). This strengthens the conclusion on actual impact of the cartel.
(387) The Commission has also found evidence that at least in some national meetings the parties agreed on the allocation of sales quantities and fixing of market shares as well as exchanged confidential information on their sales volumes. Comparison of the sales quotas agreed and the volume information exchanged in those meetings with the information received from the producers on their real sales figures shows a close correlation (see paragraphs to (241) to (251)). This demonstrates that the information exchange and the quota agreements had an impact on the sales volumes of the producers.
(388) AWA, Carrs, MHTP (Stora), Koehler, Sappi and Zanders claim that the actual impact of the cartel on the carbonless paper market in the EEA was very limited or that the cartel had no negative impact at all. In this respect, they concentrate on arguing that there was limited or no impact on prices, because the prices actually realised on the market were lower than the agreed or announced increases. According to these cartel participants, this shows that the agreed price increases were not implemented in practice. They have put forward many arguments to support this assertion, which include in particular the following claims: prices and producers' margins have fallen substantially; carbonless paper prices essentially reflect changes in pulp costs and demand, and during the later phases of the cartel the capacity constraints; competition between the producers continued; and producers had to negotiate price increases with customers on individual basis.
(389) AWA, MHTP (Stora), Koehler and Sappi refer to the unfavourable development of the carbonless paper prices for the producers and to the decreasing producer margins. AWA submits that over the 1990s carbonless paper prices have fallen substantially. AWA also argues that its margins have fallen even more than carbonless prices, which it claims, shows that the cartel was limited in scope and that carbonless paper consumers have been able to appropriate much of the benefit of cost reductions achieved by AWA. Also Sappi argues that due to rapid discounting of prices and losses in its business, it is unclear that paper buyers suffered any, or any significant, loss. MHTP (Stora) states that in 1992 and 1993 carbonless paper prices fell substantially, but that prices improved in autumn 1993 and until autumn 1995. A graph in AWA's reply shows a similar development. According to MHTP (Stora) this recovery only returned prices to the 1992 level and the increase occurred in parallel with pulp prices, which were rising steeply(358).
(390) AWA has submitted an expert report(359), the main purpose of which is to demonstrate that although concertation did take place during the period from 1992 to mid 1995, it was not effective in raising prices above levels that would have prevailed in the absence of any cartel meetings.
- The characteristics of the carbonless paper market make successful price fixing very difficult. The report underlines in this respect the lack of sufficient concentration on the supply side, disparity in size of firms, low barriers to entry and high fixed costs.
- In the period 1994-1997 there is little relationship between the price increases announced and the actual prices obtained. To a large degree realised prices moved in line with the price of pulp.
- Identical price increases can be explained by economic theory, and do not necessarily signify concerted behaviour.
- The fluctuations in AWA's market shares in different countries shows that no effective concerted behaviour took place.
- Excerpts from AWA's business plans for the period 1993-1997, each of which provide commentary on market outcomes in the previous year, indicate that competition between carbonless producers continued to be vigorous with customers being won and lost.
(391) Koehler submits that it felt compelled to counteract the dramatic losses it had experienced in 1992 and 1993 (due to falling carbonless prices) by joining the cartel. As Koehler did not manage to keep its carbonless paper business profitable in spite of participation in the cartel, it claims that the cartel could not have had any negative impact on the market. Koehler concludes that the price agreements had no negative impact on the customers, because customers were not supplied at fair market prices but at prices below-cost(360).
(392) The Commission must dismiss AWA's, MHTP's (Stora), Koehler's and Sappi's arguments. Above all, the mere fact that price announcements were made in amount and timing following concertation suffices to show an impact on the market. During the period covered by this Decision the carbonless paper market was declining; there was large structural over-capacity and demand was decreasing. There were short, temporary increases in demand only due to customers' stock-building. Moreover, several parties to the cartel have reported in their replies to the Statement of Objections on large and persistent losses during the period concerned. Some confirm that these losses were a reason for them to join the cartel. Minutes of the official AEMCP meetings even record that, faced with these difficulties, the parties were considering the sending of a crisis cartel exemption application to the Commission. The Commission accepts that in such a market situation the prices can be expected to decrease, but considers that this does not exclude that the cartel managed to control or limit the price decrease. Consequently, the cartel may have impeded the production capacity to adjust naturally to the demand by maintaining inefficient competitors in the market longer than they would have stayed under normal conditions of competition.
(393) MHTP (Stora) submits that carbonless paper prices could be increased only when that was made possible by economic circumstances, in particular rising pulp prices and increasing demand(361). AWA, which has submitted an expert report to support its argument on limited impact of the cartel, claims that the carbonless paper prices are strictly linked to changes in the cost of pulp. AWA's expert report argues that during the period from early 1994 to mid 1995 carbonless paper producers could increases prices only by the same amount as the actual change in the cost of pulp(362).
(394) Both AWA and MHTP (Stora) claim that the competition between producers continued and, as a result, announced price increases were frequently not passed on to customers(363). AWA submits that carbonless producers continued to make competitive aggressive approaches to each other's customers, offering particularly favourable prices and also competing on service levels and that, as a result, there were considerable customer switching between suppliers, and variations of market shares at national level (while at European level there were no dramatic variations). AWA also submits that the fall in prices was the result of continued competition.
(395) MHTP (Stora) argues that the Statement of Objections provides numerous illustrations of differences of opinion between the members of the cartel and of failure to implement agreements. MHTP (Stora) concludes that the cartel did not have any real success because of disagreement within the group of participants. Zanders refers to four documents annexed to the Statement of Objections, which it says show that attempted price and quota agreements were not implemented(364).
(396) The Commission dismisses the arguments of AWA, MHTP (Stora) and Zanders. Regarding AWA's arguments on customer allocation and agreements to limit competition on service levels, these do not appear to be constitutive elements of the overall anti-competitive plan. Therefore, even if the participants would have continued to compete on these factors, it does not prove as such that the cartel could not have had any effect or could only have had a limited effect on the pricing of carbonless paper.
(397) As for the examples that MHTP (Stora) and Zanders have extracted from the Statement of Objections, the Commission notes that for the most part those examples do not show any complete failure to implement the agreements. The evidence on the meetings and price increases (see Chapters and ) shows that occasionally the agreed increases were postponed to later dates, somewhat smaller increases were implemented (e.g. 6 or 7,5 % instead of 10 %) or further meetings were arranged to revise the agreement. The cartel thus had an impact on the pricing policies of the cartel members even if the implemented increases occasionally fell short of the agreed levels or they were implemented later.
(398) AWA claims that with respect to prices, the cartel was necessarily limited in scope and effectiveness because the producers had to negotiate price increases with customers on an individual basis. According to AWA, this made deliberate disregard for agreements with competitors both easy and frequent. AWA submits that "any price increases announced by agreement with competitors served merely as an opening position for subsequent negotiations with customers on prices"(365).
(399) Carrs submits that the meetings and other collusive contacts in which it participated concerned movements in so called "List Prices", which are prices quoted on the price lists issued by producers, and that its participation in discussions on "List Prices" for sheets had very limited market effects. According to Carrs, this is due to the fact that the sheets are sold through merchants with which the producer has to negotiate in order to get List Price increases passed on to printers. In the sheets business suppliers use heavy discounts and other promotional schemes to arrive at the price to printers, which is called "Net Price".
(400) According to Carrs, the price collusion had considerable importance to reels manufactures, but limited or no significance to sheet manufacturers, because the pricing of sheets is fundamentally different from the reel market where the customer is generally the printer, not a merchant. Carrs submits that, as reels are mostly sold directly to final customers, reels prices are not generally quoted as List Prices and Net Prices and, therefore, any agreement to change prices for reels would directly affect final customer prices(366).
(401) In the light of the Court of First Instance's judgements in the "Cartonboard" case(367), the fact that the undertakings actually announced the agreed price increases and that the prices so announced served as basis for fixing individual transaction prices suffices in itself for a finding that the collusion on prices had both as its object and effect a restriction of competition. As already concluded, this has been proven in the present case. Therefore, it is not necessary to analyse whether the changes in the realised transaction prices followed those in announced prices in order to show that the cartel had an actual impact on the EEA carbonless paper market.
(402) Finally, the Commission concludes that it is inconceivable that the parties would have repeatedly agreed to meet in locations across Europe to fix price increases, and in some cases also to allocate sales quotas, over such a long period, having regard inter alia to the risks involved, if they had perceived the cartel as having no impact or only a limited impact on the carbonless paper market in the EEA.
(a)(1)(iii) The size of the relevant geographic market
(403) The cartel covered the whole of the common market and, following its creation the whole of the EEA. Every part of the common market, and later the EEA was under the influence of the collusion. For the purposes of assessing the gravity of the infringement as a whole, the Commission therefore considers the entirety of the Community and, following its creation, the EEA, to have been affected by the cartel.
(a)(1)(iv) Conclusion of the Commission on the gravity of the infringement as a whole
(404) Taking into account the nature of the behaviour under scrutiny, its actual impact on the carbonless paper market and the fact that it covered the whole of the common market and, following its creation, the whole EEA, the Commission considers that the undertakings concerned by this Decision have committed an infringement of Article 81(1) of the Treaty and Article 53(1) of the EEA Agreement, which was very serious.
(405) Within the category of very serious infringements, the proposed scale of likely fines makes it possible to apply differential treatment to undertakings in order to take account of the effective capacity of the offenders to cause significant damage to competition and to set the fine at a level which ensures it has sufficient deterrent effect. The Commission notes that this exercise seems particularly necessary where, as in the present case, there is considerable disparity in the size of the undertakings participating in the infringement.
- Classification of cartel participants
(406) In the circumstances of this case, which involves several undertakings, it will be necessary in setting the basic amount of the fines to take account of the specific weight and therefore the real impact of the offending conduct of each undertaking on competition. For this purpose the undertakings concerned can in principle be divided into four categories established according to their relative importance in the market concerned, subject to adjustment where appropriate to take account of other factors and especially the need to ensure effective deterrence.
(407) As the basis for the comparison of the relative importance of an undertaking in the market concerned, the Commission considers it appropriate to take in the present case the EEA-wide product turnover. This approach is supported by the fact that this is an EEA-wide cartel, the principal object of which was inter alia to agree concerted price increases throughout the EEA. The comparison is made on the basis of the EEA-wide product turnovers in year 1995. Table 1(b) in paragraph (18) provides the relevant figures.
(408) AWA is by far the largest carbonless paper producer in the EEA and, therefore, it will be placed alone in the first category. MHTP, Zanders and Koehler, which are (or were) the medium-sized operators in the carbonless paper market in EEA, will constitute the second category. Torraspapel and Bolloré, which had significantly lower relative market shares in the EEA level, are placed in the third category. Sappi and Mougeot, which are significantly smaller in the EEA, are placed in the fourth category. Divipa, Zicuñaga and Carrs, which had sales mainly in one or a few EEA countries, are placed in the fifth category.
(409) On that basis, the Commission sets the amounts of the fines determined for gravity as follows:
- AWA: EUR 70 million,
- MHTP, Zanders, Koehler: EUR 24,5 million,
- Torraspapel, Bolloré: EUR 10,5 million,
- Sappi, Mougeot: EUR 5,6 million,
- Divipa, Zicuñaga, Carrs: EUR 1,4 million.
- Sufficient deterrence.
(410) In order to ensure that the fine has a sufficient deterrent effect, the Commission will further determine whether any adjustment of the starting amount is needed for any firm.
(411) In the cases of AWA, Sappi and Bolloré the Commission considers that the appropriate starting amount for a fine resulting from the criterion of the relative importance in the market concerned requires further upward adjustment to take account of their size and their overall resources.
(412) On that basis, the Commission considers that the need for deterrence requires that the starting amount for the fines determined under paragraph (409) should be increased by 100 % to EUR 140 million as regards AWA, to EUR 21 million as regards Bolloré and to EUR 11,2 million as regards Sappi.
(a)(2) Duration of the infringement
(413) The Commission has found that AWA, Copigraph (Bolloré), Koehler, Sappi, MHTP (Stora), Torraspapel and Zanders infringed Article 81(1) of the Treaty and Article 53(1) of the EEA Agreement from January 1992 until September 1995. Mougeot committed the same infringement from May 1992 until September 1995, Carrs from January 1993 until September 1995, Divipa from March 1992 until January 1995 and Zicuñaga from October 1993 until January 1995.
(414) The Commission concludes that the infringement was of medium duration (one to five years) for every undertaking involved.
(415) AWA, Copigraph (Bolloré), Koehler, Sappi, MHTP (Stora), Torraspapel and Zanders committed an infringement of three years and nine months. The starting amounts of the fines determined for gravity (see paragraph (409)) are therefore increased for each of them by 35 % in total.
(416) In the case of Mougeot, Carrs, Divipa and Zicuñaga, the duration of the infringement varied between one year and four months and three years and five months. The starting amounts of the fines determined for gravity are therefore increased by 30 % for Mougeot, by 25 % for Carrs, by 25 % for Divipa and by 10 % for Zicuñaga.
(a)(3) Conclusion on the basic amount
(417) The Commission accordingly sets the basic amounts of the fines as follows:
TABLE
(b) Aggravating circumstances: role of leader in the infringement
(418) There is no doubt that AWA, which is the leading producer of carbonless paper in Europe, was the principal leader of the cartel throughout the EEA. The factual evidence on meetings presented in Part I shows that several cartel meetings were convened and conducted by representatives of AWA. AWA was also the instigator of the restructuring of the cartel.
(419) There are also indications that the price increases agreed by at least two general cartel meetings and several national meetings originated from AWA, and that AWA demanded that the other participants make the same increases. AWA's position as the cartel leader is further corroborated by the minutes of the general cartel meeting of 2 February 1995, which state explicitly that AWA will lead the announcements of the price increases agreed at the meeting(368). Indeed, the documentary evidence on price increase announcements show that AWA was often the first to announce the price increases to the market, and that other competitors "followed" those announcements(369).
(420) AWA claims that there was no principal leader, but that "cartel meetings were held as a result of mutual agreement on the need for a meeting". According to AWA cartel meetings "were 'convened' by any single company, although clearly one of the companies involved had to take responsibility for arranging a room for the meeting". AWA submits that, in addition to itself and Torraspapel, at least Koehler, Mougeot and Stora reserved meeting rooms(370).
(421) AWA argues that the concertation between carbonless producers took place by mutual consent and did not require threats or sanctions. AWA refutes Mougeot's statements and argues that the wordings used by Mougeot reflect its own attitude rather than objective facts about AWA. AWA also alleges that it is in Mougeot's financial interests today to portray itself as the victim of coercion. AWA argues that it was smaller than Stora and International Paper (the then owner of Zanders) and in the same league as Bolloré (the then owner of Copigraph) and Sappi.
(422) AWA also disagrees with the Commission finding that at least some price increases originated from AWA and that it demanded the others to follow its increases. AWA accepts that on various occasions it made particular suggestions as to price announcements that it might make, but claims that other companies made such suggestions too. It stresses that carbonless producers acted out of a common view of their mutual interests and that cartel meetings involved a genuine exchange of views and suggestions from all those present.
(423) The Commission rejects AWA's arguments. A coherent set of evidence shows that AWA, which had an economic leadership in the carbonless paper market and was in a position to exercise pressure on its competitors due to the fact that it acquired or distributed(371) large proportions of some small producers output, had also a key role in monitoring and ensuring the compliance with the agreements(372). On this point, Mougeot's declarations, which themselves form part of a presentation generally in line with the rest of the evidence, fits with these indications on AWA's role in the cartel. Moreover, it should be noted that AWA does not contest Mougeot's statement that AWA audited Sarrió's sales volume information.
(424) With regard to this aggravating factor, it is appropriate to increase the basic amount of the fine by 50 % for AWA.
(c) Attenuating circumstances
(c)(1) An exclusively passive or "follow-my-leader" role
(425) Carrs, Copigraph and Torraspapel claim that they played an exclusively passive role in the infringement and that they were forced to participate in the cartel due to the pressure exercised on them by the cartel leader AWA. Koehler also submits that threats by AWA were a factor pushing it to take part in the collusion(373).
(426) The Commission rejects those arguments. Firstly, the Commission notes that in a cartel and for the purpose of determining the appropriate fine there can be three categories of cartel members: leaders, active members and passive members. In the present case, AWA was the overall cartel leader. The Commission considers that all the other cartel members, including Carrs and Copigraph (Bolloré), were active members. Carrs and Copigraph participated regularly in the cartel meetings on their national markets. Carrs has even stated that it participated in a larger number of UK and Irish market meetings than identified in the Statement of Objections. Copigraph (Bolloré), which had more sales outside its home market than Carrs, was also a regular participant in the general cartel meetings. There is also large amount evidence on their participation in the price increase initiatives showing that they regularly announced to the customers the agreed or concerted price increases.
(427) Secondly, the Commission considers that the threats (in this case from the cartel leader) cannot justify infringements of the Community and EEA competition rules. Instead of joining the cartel, the companies should have informed the competent authorities, including the Commission, of the illegal behaviour of their competitors in order to put an end to it.
(c)(2) Termination of the infringement
(428) MHTP claims that the cartel came to an end by autumn 1995 and thus before the first inspections were carried out. According to MHTP, this should be regarded as an attenuating circumstance when setting the fines(374).
(429) However, the Commission has taken into account for the assessment of this infringement only the limited period of time for which it considered to have sufficient evidence. Since this is an obvious infringement, the claim of MHTP to have early termination considered as an attenuating circumstance must be rejected.
(c)(3) Other attenuating circumstances
(430) AWA argues that the critical situation in the European carbonless paper sector should be in itself viewed as an attenuating circumstance. AWA submits that the sector was in crisis and long-term decline and that the Commission has in recent decisions concerning Alloy surcharges and Seamless steel tubes cartels(375) taken account of such matters(376). Copigraph (Bolloré), Koehler and Mougeot plead that the Commission should take into account as a mitigating factor that their carbonless businesses made losses during the period covered by the present decision(377). Copigraph (Bolloré) refer in this respect to the Court of First Instance's judgement in the Enichem Anic SpA case(378).
(431) The Commission does not consider that, in general, the lack of benefit from a cartel constitutes an attenuating circumstance in the fixing of the fine, or that there would be a right of the undertakings to a reduction in such a case. In addition, the information received in the replies to the Statement of Objections and the MHA report commissioned by the AEMCP(379) does not support the conclusion that the carbonless paper sector was in a serious crisis comparable to the sectors concerned in the previous cartel cases mentioned by the undertakings, during the infringement period 1992-1995.
(c)(4) Conclusion on the attenuating circumstances
(432) The Commission concludes that in the present case there are no attenuating circumstances.
(d) Conclusion on the amounts of fines prior to any application of the Commission notice on the non-imposition or reduction of fines in cartel cases
(433) The Commission accordingly sets the amounts of the fines prior to any application of the Commission notice on the non-imposition or reduction of fines in cartel cases ("Leniency Notice") as follows:
TABLE
(434) However, since the final amounts calculated according to that method may not in any case exceed 10 % of the world-wide turnover of the addressees (as laid down by Article 15(2) of Regulation No 17), the fines will be set as follows:
TABLE
(e) Application of the Commission's Leniency Notice
(435) Some of the addressees of this Decision have cooperated with the Commission at different stages of the investigation and in relation to different periods of the infringement covered by this Decision for the purpose of receiving favourable treatment as set out in the Leniency Notice. In order to meet the legitimate expectations of the undertakings concerned as to the non-imposition or reduction of the fines on the basis of their cooperation, it is necessary to examine whether the parties concerned satisfied the conditions set out in the Leniency Notice.
(e)(1) Non-imposition of a fine or a very substantial reduction in its amount
(436) Sappi submits that it is entitled to total exemption from any fine levied in respect of the cartel agreements covered by this Decision(380).
(437) The Commission acknowledges that Sappi submitted to the Commission information about the cartel covered by this Decision before the Commission had undertaken any investigation. The Commission also acknowledges that when on 11 November 1996 Sappi submitted a written statement regarding its participation in the cartel, the Commission did not have sufficient information to establish the existence of the alleged cartel.
(438) Sappi was the first of the cartel members to adduce evidence of the cartel's existence. After its initial submission to the Commission, Sappi provided further information and documents on the cartel in several submissions from 1996 to 1999. The evidence provided by Sappi consists essentially of minutes of cartel meetings, minutes of AEMCP meetings, employee statements on functioning of the cartel (including descriptions of cartel meetings, persons present and agreements reached), documentation on price increases and information on the market and the association AEMCP.
(439) The information provided by Sappi enabled the Commission to establish existence, content and participants of several cartel meetings and existence of collusive contacts during the period subject to the present proceedings. The Commission concludes that the evidence provided by Sappi, even if it does not cover all aspects of the cartel, has given decisive proof on existence of the cartel. The Commission also considers that Sappi has maintained continuous and complete cooperation throughout the investigation.
(440) Sappi submits that it put a complete end to any cartel activity from the date at which it disclosed it to the Commission. It also submits that it even decided not to participate in the following AEMCP meetings, in order to avoid even the appearance of any opportunity for collusive contact with competitors and to underline that it was not going to be party to any collusive action in the future(381).
(441) The Commission acknowledges that Sappi had put an end to its participation into the operation of the cartel at the date of its first approach to the Commission on 19 September 1996 and of its written submission on 11 November 1996.
(442) Finally, Sappi has not compelled any other enterprise to take part in the cartel and it has not acted as an instigator in the cartel nor has it been the ringleader.
(443) The Commission considers that this allows Sappi to benefit from section B of the Leniency Notice. Accordingly, the Commission grants Sappi a 100 % reduction of the fine that would have imposed if it had not cooperated with the Commission.
(e)(2) Substantial reduction in a fine
(444) Mougeot was the second cartel member to adduce evidence of the cartel. On 14 April 1999, after the Commission had undertaken investigations ordered by decision and sent a request for information to Mougeot, Mougeot provided to the Commission a statement and documents relevant to the case.
(445) The Commission considers that at the time when Mougeot started to co-operate with it, Sappi had already submitted sufficient information to establish the existence of the cartel. Consequently, the Commission concludes that Mougeot's co-operation does not meet the conditions laid down in point (b) of Section B of the Leniency Notice and that it does not, therefore, qualify for a substantial reduction in the fine pursuant to Section C of the Leniency Notice.
(e)(3) Significant reduction in a fine
(e)(3)(i) Evidence provided to the Commission before the Statement of Objections
(446) Before the Commission adopted its Statement of Objections, Mougeot, AWA, MHTP (Stora) and Copigraph provided the Commission with information and/or documents. There are, however, considerable differences in the extent and quality of their co-operation.
(447) Mougeot voluntarily provided statements and documents giving detailed information on cartel meetings (mainly concerning its home market France), including information on dates of the meetings, participants, contents of the meetings and agreements reached.
(448) AWA voluntarily submitted to the Commission information on cartel meetings detailing the periods during which in various Member States of the Community such meeting were held and listing participating companies. On the contents of the meetings AWA stated that "at some of these meetings ... carbonless paper prices were discussed ... extending to an exchange of intentions regarding announcements of price increases"(382).
(449) In addition to strictly replying to the request for information, Copigraph admitted that one of its executives had attended two or three meetings between competitors in 1993-1994 where price increases were agreed and listed other participants to these meetings.
(450) MHTP (Stora)'s reply was the most obscure; it admitted discussions between competitors on prices, but claimed that no agreement on increases was reached. This vague and unsubstantiated indication cannot be qualified as information or documents that contributed to establishing the existence of the infringement and therefore does not justify any reduction on fine.
(451) In addition, Koehler argues that it is entitled to a significant reduction in the fine because it gave a detailed reply in response to the Commission's request for information. The Commission observes that undertakings have an obligation to supply the information requested by the Commission under Article 11 of Regulation No 17. Regulation No 17 imposes on undertakings an obligation to cooperate actively, which implies that they must make available to the Commission all information relating to the subject matter of the investigation(383). Cooperation which falls under such an obligation does not justify any reduction of fines.
(452) Those considerations and the facts set out in paragraph (70) justify a reduction of the fines by 50 % for Mougeot, by 35 % for AWA and by 20 % for Bolloré (Copigraph).
(e)(3)(ii) Non-contesting the facts after receiving the Statement of Objections
(453) After receiving the Commission's Statement of Objections, Carrs, Koehler, MHTP and Zanders pleaded for a significant reduction in fines for not contesting the facts.
(454) Carrs admits existence of the cartel and its participation in it for the whole duration specified in this Decision.
(455) Zanders submits that it does not contest the thrust of the Commission's comments in the Statement of Objection for the period from 1992 to autumn 1995.
(456) MHTP states that it does not contest the facts on which the finding of an infringement from 1992 to mid-1995 is based.
(457) Koehler states that it does not contest some of the facts set out in the Statement of Objections. However, Koehler contests substantial parts of the factual evidence on its participation in the cartel throughout the whole period. In particular, Koehler contests the description made by the Commission of agreements on sales quotas and market shares and the existence of a monitoring system(384). The Commission concludes therefore that there is no effective cooperation on the part of Koehler.
(458) The Commission grants Carrs, MHTP and Zanders a 10 % reduction for not substantially contesting the facts.
(f) Ability to pay
(459) Carrs has presented arguments relating to its ability to pay in a specific social context. This social context relates primarily to the company's current level of debt repayments and its low profitability level.
(460) In order to consider this argument, the Commission requested detailed information on the company's financial position(385). After examining the company's confidential presentation during the Oral Hearing and the reply of 8 October 2001 as well as the further submissions made on 10, 13 and 14 December 2001(386), the Commission concludes that it is not appropriate to adjust the amount of the fine in the present case. To take account of the mere fact of an undertaking's difficult financial situation due to general market conditions would be tantamount to conferring an unjustified competitive advantage on an undertaking.
(g) The final amounts of the fines imposed in the present proceedings
(461) In conclusion, the fines to be imposed, pursuant to Article 15(2)(a) of Regulation No 17, should be as follows:
TABLE
HAS ADOPTED THIS DECISION:
Article 1
Arjo Wiggins Appleton Limited, Bolloré SA, Carrs Paper Ltd, Distribuidora Vizcaína de Papeles S.L., Mitsubishi HiTech Paper Bielefeld GmbH, Papelera Guipuzcoana de Zicuñaga SA, Papeteries Mougeot SA, Papierfabrik August Koehler AG, Sappi Limited, Torraspapel SA and Zanders Feinpapiere AG have infringed Article 81(1) of the Treaty and Article 53(1) of the EEA Agreement by participating in a complex of agreements and concerted practices in the sector of carbonless paper.
The duration of the infringement was as follows:
TABLE
Article 2
The undertakings referred to in Article 1 shall forthwith bring the infringement referred to therein to an end, if they have not already done so. They shall refrain from any agreements or concerted practices in relation to their activities in carbonless paper which may have the same or a similar object or effect as the infringement.
Article 3
The following fines are imposed on the undertakings referred to in Article 1 in respect of the infringement referred to therein:
TABLE
The fines shall be paid within three months of the date of the notification of this Decision into
Bank Account N° 642-0029000-95 (Code SWIFT: BBVABEBB - code IBAN BE76 6420 0290 0095) of the European Commission with
Banco Bilbao Vizcaya Argentaria (BBVA) S.A.,
Avenue des Arts, 43,
B-1040 Bruxelles/Brussel
After expiry of that period, interest shall automatically be payable at the interest rate applied by the European Central Bank to its main refinancing operations on the first day of the month in which this Decision is adopted, plus 3,5 percentage points, namely 6,77 %.
Article 4
This Decision is addressed to:
Arjo Wiggins Appleton Limited St Clement House
Alençon Link
Basingstoke Hampshire RG21 7SB United Kingdom Bolloré SA Tour Bolloré
31-32, quai de Dion-Bouton
92811 Puteaux cedex France Carrs Paper Ltd Cranmore Boulevard Shirley, Solihull West Midlands B90 4LJ United Kingdom Distribuidora Vizcaína de Papeles S.L
Poligono Industrial Neinver
Barrio Astince n 12-14 48160 Derio, Vizcaya España Mitsubishi HiTech Paper Bielefeld GmbH Niedernholz 23 33699 Bielefeld Deutschland Papelera Guipuzoana de Zicuñaga SA Barrio Zicuñaga 20120 Hernani, Guipúzcoa España Papeteries Mougeot SA 34, Rue Maurice Mougeot 88600 Laval sur Vologne France Papierfabrik August Koehler AG Hauptstraße 2-4 77704 Oberkirch Deutschland Sappi Limited Sappi House
48 Ameshoff Street
2001 Braamfontein
Johannesburg
Republic of South Africa Torraspapel SA Gran Via de les Corts Catalanes 678 08010 Barcelona España Zanders Feinpapiere AG An der Gohrsmühle 51465 Bergisch Gladbach Deutschland
This Decision shall be enforceable pursuant to Article 256 of the Treaty.
Done at Brussels, 20 December 2001.
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COUNCIL DIRECTIVE of 15 July 1980 amending the Directives laying down the basic safety standards for the health protection of the general public and workers against the dangers of ionizing radiation (80/836/Euratom)
THE COUNCIL OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Atomic Energy Community, and in particular Articles 31 and 32 thereof,
Having regard to the proposal from the Commission, drawn up after obtaining the opinion of a group of persons appointed by the Scientific and Technical Committee from among scientific experts in the Member States,
Having regard to the opinion of the European Parliament (1),
Having regard to the opinion of the Economic and Social Committee (2),
Whereas the Treaty establishing the European Atomic Energy Community prescribes that the basic standards for the protection of the health of the general public and workers against the dangers arising from ionizing radiation, as provided for in particular in Article 30 thereof, must be laid down in order to enable each Member State, in accordance with Article 33, to lay down the appropriate provisions, by legislation, regulation or administrative action, to ensure compliance with the basic standards, to take the necessary measures with regard to teaching, education and vocational training and to lay down such provisions in harmony with the provisions applicable in this field in the other Member States;
Whereas on 2 Februrary 1959, the Council adopted Directives laying down such basic standards (3), which were last amended by Directive 76/579/Euratom (4);
Whereas the usefulness of some review of these Directives has become apparent in the light of the development of scientific knowledge concerning radiation protection;
Whereas the protection of the health of workers and the general public requires that any activity involving danger arising from ionizing radiation must be made subject to regulation;
Whereas the basic standards must be adapted to the conditions under which nuclear energy is used ; whereas they vary according to whether they are concerned with the individual safety of workers exposed to ionizing radiation or with the protection of the general public;
Whereas the protection of the health of workers exposed to ionizing radiation requires, on the one hand, the organization of measures to prevent exposure and procedures for measuring exposure and, on the other hand, an adequate degree of medical surveillance;
(1) OJ No C 140, 5.6.1979, p. 174. (2) OJ No C 128, 21.5.1979, p. 31. (3) OJ No 11, 20.2.1959, p. 221/59. (4) OJ No L 187, 12.7.1976, p. 1. Whereas the protection of the health of the general public entails a system of surveillance, inspection and, in the case of accident, intervention;
Whereas the studies conducted on the risks of ionizing radiation are of an exemplary nature, particularly in relation to those carried out on other risks ; whereas the positive results achieved in radiation protection are important ; whereas it is clear that Community harmonization of basic standards has a role to play;
Whereas the Member States are obliged to take the measures necessary to comply with Directive 76/579/Euratom before 3 June 1980 ; whereas some of the basic standards laid down in this Directive and in the aforementioned Directive are common to both Directives ; whereas amendments to national laws in this field at excessively short intervals should be avoided ; whereas it is necessary, therefore, to authorize Member States not to comply with the aforementioned Directive and to prescribe a sufficiently long period to comply with this Directive for Member States that do not take advantage of this authorization and a shorter period for those that do take advantage of it,
HAS ADOPTED THIS DIRECTIVE:
TITLE I DEFINITIONS
Article 1
For the purposes of this Directive, the following terms have the meaning hereby assigned to them: (a) Physical terms, quantities and units
Ionizing radiation : radiation consisting of photons or of particles capable of producing ions directly or indirectly.
Activity (A) : the quotient of dN by dt, where dN is the number of spontaneous nuclear transformations which occur in a quantity of a radionuclide in the time interval dt. PIC FILE= "T
This definition does not apply to the words "activity" and "activities" in Articles 2, 3, 4, 6 and 13.
Becquerel (Bq) : the special name of the SI unit of activity. PIC FILE= "T
In this Directive the values to be used when the activity is expressed in curies are also given. PIC FILE= "T PIC FILE= "T
Gray (Gy) : the special name of the SI unit of absorbed dose. PIC FILE= "T
In this Directive the values to be used when the absorbed dose is expressed in rads are also given. PIC FILE= "T
For radiation protection calculations, all the transferred energies are included, so that PIC FILE= "T
PIC FILE= "T
(b) Radiological, biological and medical terms
Exposure : any exposure of persons to ionizing radiation. A distinction is made between: - external exposure : exposure resulting from sources outside the body;
- internal exposure : exposure resulting from sources inside the body;
- total exposure : the sum of external and internal exposure.
Continuous exposure : prolonged external exposure the intensity of which may, however, vary with time, or internal exposure due to continuous intake although its level may vary with time.
Single exposure : external exposure of short duration, or internal exposure resulting from the intake of radionuclides over a short period. PIC FILE= "T
Dose equivalent (H) : the product of the absorbed dose (D), the quality factor (Q) and the product of all other modifying factors (N). Where the word "dose" is used alone the meaning is always that of "dose equivalent".
Sievert (Sv) : the special name of the SI unit of dose equivalent. PIC FILE= "T
In this Directive the values to be used when the dose equivalent is expressed in rems are also given. PIC FILE= "T
Deep dose equivalent index (HI,d) at a point : the maximum dose equivalent within the 28-cm-diameter core of a 30-cm-diameter sphere centred at this point and consisting of material equivalent to soft tissue with a density of 1 g 7 cm-3.
Shallow dose equivalent index (HI,s) at a point : the maximum dose equivalent within the volume between 0 707 mm and 1 cm from the surface of a 30-cm-diameter sphere centred at this point and consisting of material equivalent to soft tissue with a density of 1 g 7 cm-3. It is not necessary to determine the dose equivalent in the outer layer of thickness 0 707 mm.
Effective dose : the sum of the weighted average dose equivalents in the various organs or tissues.
Whole body exposure : exposure regarded as uniform throughout the body.
Partial body exposure : exposure predominantly of part of the body or of one or more organs or tissues, or exposure which is not regarded as uniform throughout the body.
Committed dose : the dose to an organ or to a tissue over a period of 50 years, resulting from an intake of one or more radionuclides.
Genetic dose : the genetic dose to a population is the dose which, if it were received by each person from conception to the mean age of reproduction, would result in the same genetic burden to the whole population as do the actual doses received by the individuals of this population. The genetic dose can be assessed as the annual genetically significant dose multiplied by the mean age of reproduction, which is taken to be 30 years.
Annual genetically significant dose : the average dose to a population of the individual annual gonad doses, weighted in the case of each individual dose for the probable number of children conceived subsequent to irradiation.
Collective dose : the collective dose (S) to a population or group is given by the summation PIC FILE= "T
where Hi is the dose to the whole body or to a specified organ averaged over the Pi members of the ith subgroup of the population or group.
Radioactive contamination : the contamination of any material, surface or environment or of a person by radioactive substances. In the specific case of the human body, this radioactive contamination includes both external skin contamination and internal contamination irrespective of method of intake.
Dose limits : the limits laid down in this Directive for the doses resulting from the exposure of exposed workers, apprentices and students, and members of the public, excluding the doses resulting from natural background radiation and exposure of individuals as a result of medical examination and treatment undergone by them. The dose limits apply to the sum of the doses received from external exposure during the period considered and the committed doses resulting from the intake of radionuclides during the same period.
Intake : the activity entering the body from the external environment.
Limit of annual intake : for a given individual, the activity which, when introduced into the body, results in a committed dose equal to the appropriate limit of annual dose laid down in Articles 8, 9, 10 and 12.
Derived limit of concentration of radionuclides in inhaled air : the annual mean concentration in the air expressed in units of activity per unit volume which, inhaled over 2 000 hours of work per year, gives an intake equal to the limit of annual intake.
Radiotoxicity : the toxicity attributable to ionizing radiation emitted by an incorporated radionuclide and its daughters ; radiotoxicity is related not only to the radioactive characteristics of the radionuclide but also to its chemical and physical state and to the metabolism of the element in the body or in the organ.
(c) Other terms
Source : an apparatus or substance capable of emitting ionizing radiation.
Sealed source : a source consisting of radioactive substances firmly incorporated in solid and effectively inactive materials, or sealed in an inactive container of sufficient strength to prevent, under normal conditions of use, any dispersion of radioactive substances.
Radioactive substance : any substance that contains one or more radionuclides, the activity or the concentration of which cannot be disregarded as far as radiation protection is concerned.
Natural background radiation : all ionizing radiation from natural terrestrial and cosmic sources, to the extent that the exposure which it causes is not significantly increased by man.
Critical assembly : an assembly of fissile materials in which it is feasible to maintain a chain reaction.
Whole population : the entire population, including exposed workers, apprentices, students and members of the public.
Exposed workers : persons subjected, as a result of their work, to an exposure liable to result in annual doses exceeding one-tenth of the annual dose limits laid down for workers.
Reference groups (critical groups) of the population : groups comprising persons whose exposure is reasonably uniform and representative of that of the more highly exposed individuals in the population.
Members of the public : individuals in the population, excluding exposed workers, apprentices and students during their working hours.
Controlled area : an area subject to special rules for the purposes of protection against ionizing radiation and to which access is controlled.
Supervised area : an area subject to appropriate supervision for the purpose of protection against ionizing radiation.
Intervention level : a value of absorbed dose or dose equivalent or a derived value fixed in connection with the drawing-up of emergency plans.
Approved medical practitioner : a medical practitioner responsible for the medical surveillance of workers of category A as defined in Article 23, whose capacity to act in this respect is recognized by the competent authorities.
Qualified expert : person having the knowledge and training needed to carry out physical or technical tests, or radiochemical tests, or to give advice in order to ensure effective protection of individuals and correct operation of protective installations, as the case may be, whose capacity to act as a qualified expert is recognized by the competent authorities.
Accident : an unforeseen event that causes damage to an installation or disrupts the normal operation of an installation, and is likely to result for one or more persons in a dose exceeding the dose limits.
Planned special exposure : an exposure causing an annual dose to exceed one of the annual dose limits laid down for exposed workers, permitted exceptionally in certain situations during normal operations when alternative techniques which do not involve such exposures cannot be used.
Accidental exposure : exposure which is of a fortuitous and involuntary nature and whereby one of the dose limits laid down for exposed workers is exceeded.
Emergency exposure : an exposure justified in abnormal conditions in the interests of bringing help to endangered individuals, preventing exposure of a large number of people or saving a valuable installation, whereby one of the dose limits laid down for exposed workers is exceeded, and whereby the limits for planned special exposures may also be exceeded. Emergency exposures shall apply only to volunteers.
Apprentice : a person receiving training and instruction within an undertaking with a view to exercising a specific skill.
TITLE II SCOPE, REPORTING AND AUTHORIZATION
Article 2
This Directive shall apply to the production, processing, handling, use, holding, storage, transport and disposal of natural and artificial radioactive substances and to any other activity which involves a hazard arising from ionizing radiation.
Article 3
Each Member State shall make the reporting of the activities referred to in Article 2 compulsory. Without prejudice to Article 5 and in the light of possible dangers and other relevant considerations, these activities shall be subject to prior authorization in cases decided upon by each Member State.
Article 4
Without prejudice to Article 5, these requirements for reporting and obtaining prior authorization need not be applied to activities involving (a) radioactive substances where the quantities involved do not exceed in total the values given in Annex I;
(b) radioactive substances of a concentration of less than 100 Bq g-1 (0 70027 ¶Ci g-1), this limit being increased to 500 Bq g-1 (0 7014 ¶Ci g-1) for solid natural radioactive substances;
(c) the use of navigation instruments or timepieces containing radioluminescent paint, but not their manufacture or repair except as provided for in (a);
(d) apparatus emitting ionizing radiation and containing radioactive substances in quantities exceeding the values specified in (a), provided that: 1. it is of a type approved by the competent authority;
2. it possesses advantages in relation to the potential hazard that, in the opinion of the competent authority, justify its use;
3. it is constructed in the form of sealed sources ensuring effective protection against any contact with the radioactive substances and against any leakage of them ; and
4. it does not cause, at any point situated at a distance of 0 71 m from the accessible surface of the apparatus and under normal operating conditions, a dose rate exceeding PIC FILE= "T
(e) apparatus other than that referred to in (f) emitting ionizing radiation but not containing any radioactive substances, provided that: 1. it is of a type approved by the competent authority;
2. it possesses advantages in relation to the potential hazard that, in the opinion of the competent authority, justify its use ; and
3. it does not cause, at any point situated at a distance of 0 71 m from the accessible surface of the apparatus and under normal operating conditions, a dose rate exceeding PIC FILE= "T
(f) cathode ray tubes intended for the display of visual images which do not cause, at any point situated at a distance of 0 705 m from the accessible surface of the apparatus, a dose rate exceeding PIC FILE= "T
Article 5
Apart from the prohibitions provided for by national law, and irrespective of the degree of danger involved, a system of prior authorization must be applied in respect of: (a) the administration of radioactive substances to persons for purposes of diagnosis, treatment or research;
(b) the use of radioactive substances in toys and the importation of toys containing radioactive substances;
(c) the addition of radioactive substances in the production and manufacture of foodstuffs, medicinal products, cosmetics and products for household use (except for the instruments and timepieces referred to in Article 4 (c)) and the importation for commercial purposes of such goods if they contain radioactive substances.
TITLE III LIMITATION OF DOSES FOR CONTROLLABLE EXPOSURES
Article 6
The limitation of individual and collective doses resulting from controllable exposures shall be based on the following general principles: (a) every activity resulting in an exposure to ionizing radiation shall be justified by the advantages which it produces;
(b) all exposures shall be kept as low as reasonably achievable;
(c) without prejudice to Article 11, the sum of the doses and committed doses received shall not exceed the dose limits laid down in this Title for exposed workers, apprentices and students and members of the public.
The principles set out in (a) and (b) shall apply to all exposures to ionizing radiation and include medical exposures. The principle set out in (c) shall not apply to the exposure of individuals as a result of medical examination and treatment undergone by them.
CHAPTER I LIMITATION OF DOSES FOR EXPOSED WORKERS
Article 7
1. Workers under 18 years of age may not be assigned to any work which would result in their being exposed workers.
2. Nursing mothers shall not be employed in work involving a high risk of radioactive contamination ; if necessary, a special watch will be kept for bodily radioactive contamination.
Article 8
Whole body exposure
1. The dose limit for whole body exposure of exposed workers shall be 50 mSv (5 rems) in a year.
2. For women of reproductive capacity, the dose to the abdomen shall not exceed 13 mSv (1 73 rems) in a quarter.
3. As soon as pregnancy is declared, measures shall be taken to ensure that exposure of the woman concerned in the context of her employment is such that the dose to the foetus, accumulated over the period of time between declaration of pregnancy and the date of delivery, remains as small as is reasonably practicable and in no case exceeds 10 mSv (1 rem). In general, this limitation can be achieved by employing the women in working conditions appropriate to category B workers.
Article 9
Partial body exposure
In the case of partial body exposure: (a) the effective dose limit evaluated by the method set out in Annex II, Section E, shall be 50 mSv (5 rems) in a year ; the average dose in each of the organs or tissues involved shall not exceed 500 mSv (50 rems) in a year.
(b) In addition: - the dose limit for the lens of the eye shall be 300 mSv (30 rems) in a year;
- the dose limit for the skin shall be 500 mSv (50 rems) in a year. Where exposure is the result of radioactive contamination of the skin, this limit shall apply to the dose averaged over any area of 100 cm2;
- the dose limit for the hands, forearms, feet and ankles shall be 500 mSv (50 rems) in a year.
CHAPTER II LIMITATION OF DOSES FOR APPRENTICES AND STUDENTS
Article 10
1. The dose limits for apprentices and students aged 18 years or over who are training for employment involving exposure to ionizing radiation or who, in the course of their studies, are obliged to use sources shall be equal to the dose limits for exposed workers laid down in Articles 8 and 9.
2. The dose limits for apprentices and students aged between 16 and 18 years who are training for employment involving exposure to ionizing radiation or who, in the course of their studies, are obliged to use sources, shall be equal to three-tenths of the annual dose limits for exposed workers laid down in Articles 8 and 9.
3. The dose limits for apprentices and students aged 16 years or over who are not subject to the provisions of paragraphs 1 and 2 and for apprentices and students aged less than 16 years shall be the same as the dose limits for members of the public specified in Article 12. However, the contribution to the annual doses that they are liable to receive by virtue of their training shall not exceed one-tenth of the dose limits specified in Article 12 and the dose during each single exposure shall not exceed one-hundredth of those dose limits.
CHAPTER III PLANNED SPECIAL EXPOSURES
Article 11
1. Only workers of category A defined in Article 23 may be subjected to planned special exposures. All planned special exposure must be subject to appropriate authorization.
Such authorization shall be given only in exceptional situations during normal operations when alternative techniques which do not involve such exposure cannot be used. Account shall be taken of the age and health of the workers involved.
2. The doses or committed doses received in the course of planned special exposures must not in any year exceed twice the annual dose limits laid down in Articles 8 and 9 and, in a lifetime, five times those dose limits.
3. Planned special exposures shall not be authorized: (a) if, during the previous 12 months, the worker has received an exposure giving rise to doses in excess of the annual dose limits laid down in Articles 8 and 9, or
(b) if the worker has previously received accidental or emergency exposures giving rise to doses the sum of which exceeds five times the annual dose limits laid down in Articles 8 and 9, or
(c) if the worker is a woman of reproductive capacity.
4. The exceeding of dose limits as a result of planned special exposure shall not in itself be a reason for excluding the worker from his usual occupation. Subsequent conditions of exposure shall be subject to the agreement of the approved medical practitioner.
5. All planned special exposures must be entered in the medical record provided for in Article 36, in which the estimated value of the dose and that of the activities taken into the body shall also be entered.
6. Before receiving a planned special exposure, the worker shall be given appropriate information about the risks involved and the precautions to be taken during the operation.
CHAPTER IV LIMITATION OF DOSES FOR THE POPULATION
Article 12
Dose limits for members of the public
1. The following dose limits for members of the public shall be complied with without prejudice to Article 13.
2. In the case of whole body exposure the dose limit shall be 5 mSv (0 75 rem) in a year.
3. In the case of partial body exposure: (a) the limit for the effective dose evaluated by the method set out in Annex II, Section E, shall be 5 mSv (0 75 rem) in a year ; the average dose in each of the organs or tissues involved shall not exceed 50 mSv (5 rems) in a year.
(b) In addition: - the dose limit for the lens of the eye shall be 30 mSv (3 rems) in a year;
- the dose limit for the skin shall be 50 mSv (5 rems) in a year;
- the dose limit for the hands, forearms, feet and ankles shall be 50 mSv (5 rems) in a year.
Article 13
Exposure of the population as a whole
1. Each Member State shall ensure that the contribution to the exposure of the population as a whole from each activity is kept to the minimum amount necessitated by that activity, taking account of the principles set out in Article 6 (a) and (b).
2. The total of all such contributions shall be kept under review and in particular the genetic dose resulting from all these contributions shall be estimated.
3. Member States shall regularly transmit the results of these reviews and estimates to the Commission.
TITLE IV DERIVED LIMITS
Article 14
Use of the derived limits laid down in this Title is a means of ensuring that the dose limits defined in Title III are complied with ; however, other methods may be used to achieve this end.
Article 15
External exposure only
In the case of external exposure of the whole body or of a substantial fraction of the body, the dose limits laid down in Articles 8, 9 and 12 shall be deemed to be complied with if the requirements laid down in Annex II are met.
Article 16
Internal exposure only
In the case of internal exposure, the dose limits laid down in Articles 8, 9 and 12 shall be deemed to be complied with if the values of intake and concentration of radionuclides in the air do not exceed the values laid down in Annex III. (a) The tables in Annex III give: - the limits of annual intake by inhalation of radionuclides for exposed workers;
- the derived limits of concentration of radionuclides in the air inhaled for exposed workers. These must be considered as average values for one year;
- the limits of annual intake by inhalation and ingestion of radionuclides for members of the public.
(b) Where there is a mixture of radionuclides, the methods given in Annex III, paragraph 2, shall be used.
Article 17
Combinations of external and internal exposure
In the case of combinations of external exposure of the whole body or a substantial fraction of the body and internal radioactive contamination by one or more radionuclides, the limits laid down in Articles 8, 9 and 12 shall be deemed to be complied with if the requirements laid down in Annex II are met.
TITLE V ACCIDENTAL AND EMERGENCY EXPOSURES OF WORKERS
Article 18
All accidental and emergency exposures shall be entered in the medical record of the worker provided for in Article 36. Wherever possible, doses and committed doses received in the course of accidental and emergency exposures must be recorded separately on the exposure record provided for in Article 31. The procedures set out in Article 37 shall also be applied. Only volunteers may be subjected to emergency exposures.
TITLE VI FUNDAMENTAL PRINCIPLES GOVERNING OPERATIONAL PROTECTION OF EXPOSED WORKERS
Article 19
Operational protection of exposed workers shall be based on the following principles: (a) classification of places of work into different areas;
(b) classification of workers into different categories;
(c) implementation of control measures and monitoring relating to these different areas and to the different categories of workers.
These principles of protection shall also apply to the apprentices and students referred to in Article 10 (1) and (2).
CHAPTER I MEASURES FOR THE RESTRICTION OF EXPOSURE
Section 1 Classification and delineation of areas
Article 20
For the purposes of radiation protection, each Member State shall make arrangements as regards all places of work where there is a risk of exposure to ionizing radiation.
In working areas where the doses are not liable to exceed one-tenth of the annual dose limits laid down for exposed workers, it shall not be necessary to make special arrangements for the purposes of radiation protection.
In working areas where the doses are liable to exceed one-tenth of the annual dose limits laid down for exposed workers, the arrangements must be appropriate to the nature of the installation and sources and to the magnitude and nature of the hazards. The scope of the precautions and monitoring, as well as their type and quality, must be appropriate to the hazards associated with the work involving exposure to ionizing radiation.
A distinction shall be made between: (a) controlled areas
Any area in which doses are liable to exceed three-tenths of the annual dose limits laid down for exposed workers shall constitute or be included in a controlled area.
Annex IV lists examples of establishments and plants in which the presence of generators or sources liable to be the cause of exposure generally justifies the delineation of one or more controlled areas;
(b) supervised areas
Any area which is not considered as a controlled area and in which doses are liable to exceed one-tenth of the annual dose limits laid down for exposed workers shall be considered as a supervised area.
Article 21
Controlled areas must be delineated.
Taking into account the nature and extent of the radiation hazards: (a) radiological environmental surveillance shall be organized in controlled and supervised areas, and, in particular, activities, doses and dose rates as the case may be shall be monitored and results recorded;
(b) in controlled and supervised areas, working instructions appropriate to the radiation hazard shall be laid down;
(c) the hazards inherent in the sources shall be indicated in controlled areas;
(d) signs indicating sources shall be displayed in controlled and supervised areas.
Qualified experts shall be concerned in the discharge of these duties.
Article 22
The minimum requirement for a controlled area shall be the control of access by appropriate identification.
Section 2 Classification of exposed workers
Article 23
For the purposes of monitoring and surveillance, a distinction shall be made between two categories of exposed workers: - category A : those who are liable to receive a dose greater than three-tenths of one of the annual dose limits;
- category B : those who are not liable to receive this dose.
Article 24
Exposed workers and the apprentices and students referred to in Article 10 (1) and (2) shall be informed of the health risks involved in their work, the precautions to be taken and the importance of complying with the technical and medical requirements and shall also be given appropriate training in the field of radiation protection.
Section 3 Examination and testing of protective devices and measuring instruments
Article 25
The examination and testing of protective devices and measuring instruments shall be the responsibility of qualified experts.
The examination and testing shall comprise: (a) prior critical examination of plans for installations from the point of view of radiation protection;
(b) the acceptance of new installations from the point of view of radiation protection;
(c) regular checking of the effectiveness of protective devices and techniques;
(d) regular checking that measuring instruments are serviceable and correctly used.
CHAPTER II ASSESSMENT OF EXPOSURE
Article 26
The nature and frequency of assessment of exposure shall be such as to enable compliance with this Directive in each case.
Section 1
Collective monitoring
Article 27
Taking into account the radiological hazards, measurements shall be carried out: (a) of dose rates and fluence rates, indicating the nature and the quality of the radiation in question;
(b) of the atmospheric concentration and surface density of contaminating radioactive substances, indicating their nature and their physical and chemical states.
Where appropriate, the results of these measurements shall be used for estimating individual doses.
Section 2 Individual monitoring
Article 28
The assessment of the individual doses shall be systematic for workers of category A. This assessment shall be based on individual measurements or, in cases where these are impossible or inadequate, on an estimate arrived at either from individual measurements made on other exposed workers, or from the results of the collective monitoring provided for in Article 27.
Article 29
In the case of accidental or emergency exposure, the absorbed doses shall be assessed, whether whole or partial body exposure has occurred.
Article 30
The results of individual monitoring shall be submitted to an approved medical practitioner whose responsibility it shall be to interpret their implications for human health. In an emergency the results shall be submitted immediately.
Section 3 Recording of results
Article 31
The following shall be kept in the archives for a period of at least 30 years: (a) the results of collective monitoring measurements used to assess individual doses;
(b) the exposure record containing the data relating to the assessment of individual doses;
(c) in the case of accidental or emergency exposure, the reports relating to the circumstances and to the action taken.
For the documents referred to in (b) and (c), the period of 30 years shall start at the time of termination of the work involving exposure to ionizing radiation.
CHAPTER III MEDICAL SURVEILLANCE OF EXPOSED WORKERS
Article 32
The medical surveillance of exposed workers shall be based on the principles that govern occupational medicine generally. It shall include, as appropriate, pre-employment medical examinations and periodic reviews of health, the frequency and the form of the latter being determined by the worker's state of health, the conditions of work and the incidents that may be associated with the work.
Article 33
No worker may be employed for any period as an exposed worker if the medical findings are unfavourable.
Section 1 Medical surveillance of workers of category A
Article 34
The medical surveillance of workers of category A shall be the responsibility of approved medical practitioners.
It shall include: (a) a pre-employment medical examination
The purpose of this examination shall be to determine the worker's fitness for the first post for which he is being considered. It shall include an inquiry into his medical history including all known previous exposures to ionizing radiation resulting either from his employment or from medical examination and treatment, and also a clinical and any other investigations necessary for assessing his general state of health.
(b) general medical surveillance
The approved medical practitioner must have access to any information he requires in order to ascertain the state of health of workers under surveillance and to assess the environmental conditions existing in the working premises in so far as they might affect the fitness of workers for the tasks assigned to them.
(c) periodic reviews of health
The health of workers shall be subject to review as a matter of routine to determine whether they remain fit to perform their duties. The nature of this review shall depend on the type and extent of exposure to ionizing radiation and on the individual worker's state of health. The state of health of each worker shall be reviewed at least once a year and more frequently if the worker's exposure conditions or state of health so require.
The approved medical practitioner may indicate the need for medical surveillance after cessation of work for as long as he considers it necessary to safeguard the health of the person concerned.
Article 35
The following medical classification shall be adopted with respect to fitness for work as a worker of category A: - fit;
- fit, subject to certain conditions;
- unfit.
Article 36
1. A medical record shall be opened for each worker of category A and kept up to date so long as he remains a worker of that category. Thereafter it shall be retained in the archives for a period of at least 30 years from the termination of the work involving exposure to ionizing radiation.
2. The medical record shall include information regarding the nature of the employment, the results of the pre-employment medical examination and periodic reviews of health, a record of doses to check that the values laid down in Articles 8, 9 and 11 have not been exceeded, and the record of doses received in the course of accidental and emergency exposures.
Section 2 Special surveillance of exposed workers
Article 37
Special surveillance shall be provided in each case where the dose limits laid down in Articles 8 and 9 have been exceeded. Subsequent conditions of exposure shall be subject to the agreement of the approved medical practitioner.
Article 38
In addition to the periodic reviews of health provided for in Article 34, provision shall be made for any further examinations, decontamination measures or urgent remedial treatment considered necessary by the approved medical practitioner.
Section 3 Appeals
Article 39
Each Member State shall lay down the procedure for appeal against the findings and decisions made in pursuance of Articles 33 and 37.
CHAPTER IV
Article 40
1. Each Member State shall take all necessary measures to ensure the effective protection of exposed workers. It shall lay down provisions relating to the classification of places of work and of workers, to the implementation of arrangements aimed at restricting exposure and to monitoring. It shall also establish a system or systems of inspection to supervise the examinations and monitoring specified in this Directive and to initiate surveillance and intervention measures wherever necessary.
2. Each Member State shall ensure that workers have access to the results of the exposure measurements and the biological examinations concerning them.
3. Each Member State shall make the necessary arrangements to recognize the capacity of the experts responsible for the examination and testing of the various protective devices and measuring instruments and to approve medical practitioners responsible for the medical surveillance of category A workers. To this end, each Member State shall arrange for the training of such specialists.
4. Each Member State shall ensure that the means necessary for proper radiation protection are placed at the disposal of the departments responsible. The creation of a specialized radiation protection unit shall be required for all establishments in which there is a serious risk of exposure or radioactive contamination. This unit, which may be shared by several establishments, shall be distinct from production and operation units.
5. Each Member State shall facilitate appropriate access within the Community to all relevant information concerning the posting of each exposed worker and the doses received.
6. For the guidance of medical practitioners responsible for the medical surveillance of exposed workers, each Member State shall draw up a list, which need not be exhaustive, of the criteria which should be taken into account when judging a worker's fitness to be exposed to ionizing radiation.
TITLE VII FUNDAMENTAL PRINCIPLES GOVERNING OPERATIONAL PROTECTION OF THE POPULATION
Article 41
Each Member State shall adopt the provisions necessary for applying the fundamental principles governing operational protection of the population.
Article 42
Operational protection of the population means all arrangements and surveys for detecting and eliminating the factors which, in the production and use of ionizing radiation or in the course of any operation involving exposure to its effects, are liable to create an unjustifiable risk of exposure for the population. The extent of the precautions taken shall depend upon the magnitude of the risk of exposure, especially in the event of an accident, and upon demographic data. Operational protection has application in the medical field as well as in other fields. Protection shall include the examination and testing of protective arrangements and the dose determinations to be carried out for the protection of the population.
Article 43
The examination and testing of protective arrangements shall include: (a) examination and approval of proposed installations involving an exposure hazard, and of the proposed siting of installations within the territory;
(b) acceptance into service of new installations with regard to protection against any exposure or radioactive contamination liable to extend beyond the perimeter of the establishment, taking into account demographic, meteorological, geological, hydrological and ecological conditions;
(c) checking the effectiveness of technical protective devices:
(d) acceptance, from the point of view of surveillance of radiological hazards, of equipment for measuring exposure and radioactive contamination;
(e) checking that measuring instruments are serviceable and correctly used;
(f) whenever necessary, the establishment of emergency plans and their approval;
(g) the establishment and application of waste discharge formulae and provisions to be laid down for measurement.
The tasks listed in (a) to (g) shall be carried out in accordance with rules laid down by the competent authorities on the basis of the extent of the exposure hazard involved.
Article 44
1. The health surveillance of the population shall be based, in particular, on the assessment of the doses received by the population, both in normal circumstances and in the event of an accident.
2. Surveillance shall be carried out: (a) on the whole population of the area concerned;
(b) on reference groups of the population in all places where such groups may occur.
3. Taking into account the radiological hazards, the dose determinations to be carried out for the protection of the population shall include: (a) assessment of external exposure, indicating, where appropriate, the quality of the radiation in question;
(b) assessment of radioactive contamination, indicating the nature and the physical and chemical state of the radioactive contaminants and determination of their activity and their concentration;
(c) assessment of the doses that the reference groups of the population are liable to receive in normal or exceptional circumstances, and specification of the characteristics of these groups;
(d) assessment of the genetic dose and of the annual genetically significant dose, taking demographic characteristics into account. Doses due to exposure to various sources must be added together wherever possible;
(e) the frequency of assessments shall be such as to enable compliance with this Directive in each case;
(f) records relating to measurements of external exposure and radioactive contamination and the results of the assessment of the doses received by the population shall be kept in the archives and shall include accidental and emergency exposures.
Article 45
1. Each Member State shall establish a system of inspection to supervise the protection of the health of the population, to interpret, in terms of the effects on health, the results of the assessments provided for in Article 44 (3), and to check compliance with the dose limits laid down in Article 12.
2. Each Member State shall initiate action in regard to surveillance and intervention wherever necessary.
3. Each Member State shall take measures to ensure and effectively coordinate the health surveillance of the population, shall decide on the frequency of assessments and shall take all necessary steps to identify the reference groups of the population, taking into account the effective pathway of transmission of the radioactive material. These measures may, if necessary, be taken by one Member State jointly with other Member States.
4. In the event of accidents, each Member State shall stipulate: (a) intervention levels, measures to be taken by the competent authorities and surveillance procedures with respect to the population groups that are liable to receive a dose in excess of the dose limits laid down in Article 12;
(b) the necessary resources both in personnel and in equipment to enable action to be taken to safeguard and maintain the health of the population. These measures may, if necessary, be taken by one Member State jointly with other Member States.
5. Any accident involving exposure of the population must be notified as a matter of urgency, when the circumstances so require, to neighbouring Member States and to the Commission.
Article 46
1. Member States shall be authorized not to take measures provided for in Article 40 (1) of Directive 76/579/Euratom, as amended by Directive 79/343/Euratom (1).
Member States which take advantage of this authorization shall take the measures necessary to comply with this Directive within 30 months from 3 June 1980.
Member States which do not take advantage of this authorization shall take the measures necessary to comply with this Directive within four years from 3 June 1980.
2. Member States shall inform the Commission of the provisions they have adopted to comply with this Directive.
Article 47
This Directive is addressed to the Member States.
Done at Brussels, 15 July 1980.
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Commission Decision
of 18 April 2002
establishing the list of approved zones with regard to Bonamia ostreae and/or Marteilia refringens
(notified under document number C(2002) 1426)
(Text with EEA relevance)
(2002/300/EC)
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Council Directive 91/67/EEC of 28 January 1991 concerning the animal health conditions governing the placing on the market of aquaculture animals and products(1), as last amended by Directive 98/45/EC(2), and in particular Article 5 thereof,
Whereas:
(1) In order to obtain, for one or more of the mollusc diseases bonamiosis and marteiliosis - if caused by the agents Bonamia ostreae (B. ostreae) and Marteilia refringens (M. Refrigens) - the status of approved zone, Member States shall submit the appropriate justifications and the national rules ensuring compliance with the conditions laid down in Directive 91/67/EEC.
(2) Commission Decision 93/55/EEC(3), as amended by Decision 93/169/EEC(4), amends the guarantees for the introduction of molluscs into zones for which a programme for B. ostreae and M. refringens has been approved.
(3) The programme concerning bonamiosis and marteiliosis in Ireland was approved by Commission Decision 93/56/EEC(5).
(4) Council Regulation (EEC) No 706/73 of 12 March 1973 concerning the Community arrangements applicable to the Channel Islands and the Isle of Man for trade in agricultural products(6), as amended by Regulation (EEC) No 1174/86(7), lays down that the veterinary legislation shall apply to these islands under the same conditions as in the United Kingdom for the products imported to the islands or exported from the islands to the Community.
(5) The programmes concerning bonamiosis and marteiliosis submitted by the United Kingdom were approved by Commission Decisions 92/528/EEC(8) (Great Britain and Northern Ireland), 93/57/EEC(9) (Jersey), 93/58/EEC(10) (Guernsey) and 93/59/EEC(11) (the Isle of Man) respectively.
(6) Ireland has submitted the appropriate justifications required to obtain the status of approved zone, with regard to B. ostreae and M. refringens, for certain areas of Ireland, as well as the national rules ensuring compliance with the requirements for maintenance of the approved status.
(7) The United Kingdom has submitted the appropriate justifications required to obtain the status of approved zones, with regard to B. ostreae and M. refringens, for certain areas, as well as the respective national rules ensuring compliance with the requirements for maintenance of the approved status.
(8) The documentation provided by Ireland and the United Kingdom for the zones concerned shows that these zones meet the requirements of Article 5 of Council Directive 91/67/EEC. They therefore qualify for the status of approved zones.
(9) For the sake of clarity and simplification, it is appropriate to draw up a single list of all approved zones with regard to bonamiosis and marteiliosis and to repeal decisions approving programmes earlier applied to the zones that subsequently have achieved approved status.
(10) Decisions 92/528/EEC, 93/56/EEC, 93/57/EEC, 93/58/EEC and 93/59/EEC should therefore be repealed and replaced by this Decision.
(11) 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
The zones recognised as approved zones with regard to B. ostreae and M. refringens are listed in the Annex.
Article 2
Decisions 92/528/EEC, 93/56/EEC, 93/57/EEC, 93/58/EEC and 93/59/EEC are hereby repealed.
References to the repealed Decisions shall be construed as references to this Decision.
Article 3
This Decision is addressed to the Member States.
Done at Brussels, 18 April 2002.
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COMMISSION REGULATION (EC) No 1756/2004
of 11 October 2004
specifying the detailed conditions for the evidence required and the criteria for the type and level of the reduction of the plant health checks of certain plants, plant products or other objects listed in Part B of Annex V to Council Directive 2000/29/EC
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Council Directive 2000/29/EC of 8 May 2000 on protective measures against the introduction into the Community of organisms harmful to plants or plant products and against their spread within the Community (1), and in particular Article 13a(5)(c) thereof,
Whereas:
(1)
Under Directive 2000/29/EC, all consignments of plants, plant products or other objects listed in Part B of Annex V thereof should in principle be subjected to identity and plant health checks before being permitted to enter the Community.
(2)
In order to allow plant health checks to be carried out at a reduced frequency, it is necessary to provide for detailed conditions for the evidence, as referred to in the second subparagraph of Article 13a(2) of Directive 2000/29/EC that the plants, plant products or other objects listed in Part B of Annex V thereto, which are introduced into the Community, meet the conditions sets out in that Directive.
(3)
Since plants intended for planting and plants, plant products or other objects which are subject to measures adopted in accordance with Article 16(3) of Directive 2000/29/EC present a high risk of introduction of organisms harmful to plants or plant products, the reduction should not apply to them.
(4)
Specific conditions are set out for plants, plant products or other objects which are subject to authorisation of import into the Community under derogation according to the provisions of Article 15(1) of Directive 2000/29/EC. Therefore, the said plants, plant products or other objects should not be subjected to plant health checks at a reduced frequency.
(5)
The measures provided for in this Regulation are in accordance with the opinion of the Standing Committee on Plant Health,
HAS ADOPTED THIS REGULATION:
Article 1
This Regulation shall apply to the plant health checks provided for in Article 13a(1)(b)(iii) of Directive 2000/29/EC as regards the plants, plant products or other objects listed in Part B of Annex V to Directive 2000/29/EC originating in a specified country, territory or part thereof (hereinafter the products concerned), with the exception of:
(a)
plants intended for planting;
(b)
any plant, plant product or other object which is subject to authorisation allowing importation into the Community according to the provisions of Article 15(1) of Directive 2000/29/EC;
(c)
any plant, plant product or other object which is subject to temporary measures according to the provisions of Article 16(3) of Directive 2000/29/EC;
d)
any plant, plant product or other object which is mentioned on the list established pursuant to Article 13a(5)(b) of Directive 2000/29/EC.
Article 2
1. Any Member State may apply to the Commission to have a product concerned subjected to plant health checks at a reduced frequency. The application shall contain the information set out in Annex I.
2. Respecting the conditions in Article 3 and applying the criteria in Article 4, the Commission shall prepare a list of products concerned for which plant health checks may be carried out at a reduced frequency, and specify the level of the reduced frequency.
3. After consultation within the Committee referred to in Article 18 of Directive 2000/29/EC, the Commission shall publish this list.
Article 3
The product concerned may be subject to plant health checks at reduced frequency provided that:
(a)
the average number of consignments over three years of the product concerned introduced into the Community each year is at least 200, and
(b)
the minimum number of consignments of the product concerned for which inspections have been carried out during the previous three years is at least 600, and
(c)
the number of consignments of the product concerned each year which were found infected by the harmful organisms mentioned under point (e) of Annex I is less than 1 % of the total number of consignments of the said product concerned imported into the Community, and
(d)
the application for the products concerned as referred to in Article 2(1) is available at the Commission.
Article 4
1. The level of the reduced frequency, as referred to in Article 2(2), shall be based on the following criteria:
(a)
the number of consignments of the product concerned intercepted for the presence of harmful organisms included in the list referred to in point (e) of Annex I;
(b)
the estimated mobility of the harmful organisms included in the list referred to in point (e) of Annex I at the most mobile stage to which the organism could develop on the relevant plant or plant product;
(c)
the number of consignments of the products concerned on which a physical plant health inspection has been carried out;
(d)
any other factor relevant to a determination of the phytosanitary risk from the trade concerned.
2. The type of the reduced frequency shall be expressed as the minimum percentage of plant health checks that may be carried out by the Member States on the products concerned. This minimum percentage applies for each Member State to all consignments consisting of the products concerned imported in its territory.
Article 5
1. Without prejudice to Article 16(1) of Directive 2000/29/EC, for the purpose of monitoring the importation of the products concerned for which plant health checks are carried out pursuant to this Regulation, importing Member States shall supply to the Commission and to the other Member States the information listed in Annex II, by 31 March each year at the latest.
2. On the basis of this information, and in accordance with the provisions of Articles 3 and 4, the Commission shall establish a report and shall assess whether and at which frequency plant health checks for the products concerned may still be carried out at a reduced frequency pursuant to this Regulation.
3. If 1 % of the total number of consignments imported consisting of the product concerned and subject to a reduced frequency pursuant to this Regulation, is found infected by any of the organisms listed in the Annexes I or II to Directive 2000/29/EC, the relevant product concerned shall be considered as no longer eligible as a product for which plant health checks may be carried out at a reduced frequency.
Article 6
When, on the basis of the assessment mentioned in Article 5(2), or the consideration mentioned in Article 5(3), or if evident from more recent notifications of interceptions in the Member States, it appears that the product concerned does not satisfy any longer with the provisions of Article 3, the Commission shall amend the list of products concerned for which plant health checks may be carried out at a reduced frequency, and publish the said amendment.
Article 7
This Regulation shall be reviewed by1 January 2007 at the latest.
Article 8
This Regulation shall enter into force on the twentieth day following that of its publication in the Official Journal of the European Union.
It shall apply from 1 January 2005.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 11 October 2004.
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COUNCIL DIRECTIVE of 24 June 1981 amending Directives 64/432/EEC, 64/433/EEC, 71/118/EEC, 72/461/EEC, 72/462/EEC, 77/96/EEC, 77/99/EEC, 77/391/EEC, 80/215/EEC, 80/217/EEC and 80/1095/EEC as regards the procedures of the Standing Veterinary Committee (81/476/EEC)
THE COUNCIL OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Economic Community, and in particular Articles 43 and 100 thereof,
Having regard to the proposal from the Commission (1),
Having regard to the opinion of the European Parliament (2),
Whereas the Standing Veterinary Committee established by Decision 68/361/EEC (3) delivers its opinion in accordance with procedures which are valid until 21 June 1981;
Whereas a matter was first referred to the Committee on 22 December 1972 ; whereas sufficient time has elapsed to enable a final decision on these procedures to be reached ; whereas the validity of the said procedures should therefore no longer be restricted;
Whereas the experience gained from the use of the present procedures has indicated that they generally constitute an effective method for the rapid adoption of the decisions for which they were primarily designed;
Whereas, moreover, following the accession of Greece it is also necessary to adjust the number of votes constituting the required majority within the Committee, for Acts adopted after the adoption of the 1979 Act of Accession which have not yet been adapted,
HAS ADOPTED THIS DIRECTIVE:
Article 1
the following provisions are hereby repealed: - Article 14 of Directive 64/432/EEC (4),
- Article 9b of Directive 64/433/EEC (5),
- Article 13 of Directive 71/118/EEC (6),
- Article 10 of Directive 72/461/EEC (7),
- Article 31 of Directive 72/462/EEC (8),
- Article 10 of Directive 77/96/EEC (9),
- Article 21 of Directive 77/99/EEC (10),
- Article 12 of Directive 77/391/EEC (11),
- Article 9 of Directive 80/215/EEC (12),
- Article 17 of Directive 80/217/EEC (13),
- Article 10 of Directive 80/1095/EEC (14).
(1) OJ No C 102, 5.5.1981, p. 2. (2) Opinion delivered on 19 June 1981 (not yet published in the Official Journal). (3) OJ No L 255, 18.10.1968, p. 23. (4) OJ No 121, 29.7.1964, p. 1977/64. (5) OJ No 121, 29.7.1964, p. 2012/64. (6) OJ No L 55, 8.3.1971, p. 23. (7) OJ No L 302, 31.12.1972, p. 24. (8) OJ No L 302, 31.12.1972, p. 28. (9) OJ No L 26, 31.1.1977, p. 67. (10) OJ No L 26, 31.1.1977, p. 85. (11) OJ No L 145, 13.6.1977, p. 44. (12) OJ No L 47, 21.2.1980, p. 4. (13) OJ No L 47, 21.2.1980, p. 11. (14) OJ No L 325, 1.12.1980, p. 1.
Article 2
The reference to "41" shall be replaced by "45" in Article 8 (3) of Directive 80/215/EEC, Article 16 (3) of Directive 80/217/EEC and Article 9 (3) of Directive 80/1095/EEC.
Article 3
The Council shall, before 1 July 1987, re-examine on the basis of a report of the Commission on the operation of the Standing Veterinary Committee, containing, if necessary, appropriate proposals, the procedure of the said Committee.
Article 4
This Directive is addressed to the Member States.
Done at Luxembourg, 24 June 1981.
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Commission Regulation (EC) No 1407/2003
of 7 August 2003
amending Council Regulation (EC) No 2341/2002 fixing for 2003 the fishing opportunities and associated conditions for certain fish stocks and groups of fish stocks, applicable in Community waters and, for Community vessels, in waters where catch limitations are required
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Council Regulation (EC) No 2341/2002 of 31 December 2002 fixing for 2003 the fishing opportunities and associated conditions for certain fish stocks and groups of fish stocks, applicable in Community waters and, for Community vessels, in waters where catch limitations are required(1), as last amended by Regulation (EC) No 1091/2003(2), and in particular Article 3(4) thereof,
Whereas:
(1) The Community's fishing opportunities for capelin in zone V, XIV (Greenland waters) for 2003 are laid down provisionally in Annex IC to Regulation (EC) No 2341/2002.
(2) Under the Fourth Protocol laying down the conditions relating to fishing provided for in the Agreement on fisheries between the European Economic Community, on the one hand, and the Government of Denmark and Home Rule Government of Greenland, on the other(3), the Community receives 70 % of the Greenland share of the total allowable catch (TAC) for capelin in zones V and XIV.
(3) By letter of 17 June 2003, the Greenland authorities have informed the Commission that the Greenland share of the TAC for capelin for 2003 has been fixed at 91850 tonnes. The final fishing opportunities for capelin for the Community during 2003 should therefore be fixed at 64295 tonnes in zones V and XIV (Greenland waters).
(4) Regulation (EC) No 2341/2002 should therefore be amended accordingly,
HAS ADOPTED THIS REGULATION:
Article 1
Annex IC to Regulation (EC) No 2341/2002 is amended in accordance with the Annex to this 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.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 7 August 2003.
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COMMISSION DECISION
of 1 June 2006
amending Decision 92/452/EEC as regards certain embryo collection and production teams in the United States of America
(notified under document number C(2006) 2097)
(Text with EEA relevance)
(2006/395/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 importation from third countries of embryos of domestic animals of the bovine species (1), and in particular Article 8 (1) thereof,
Whereas:
(1)
Commission Decision 92/452/EEC of 30 July 1992 establishing lists of embryo collection teams and embryo production teams approved in third countries for export of bovine embryos to the Community (2) provides that Member States are only to import embryos from third countries where they have been collected, processed and stored by embryo collection teams listed in that Decision.
(2)
The United States of America have requested that amendments be made to the entries for that country on those lists as regards certain embryo collection and production teams.
(3)
The United States of America have provided guarantees regarding compliance with the appropriate rules set out in Directive 89/556/EEC and the embryo collection teams concerned have been officially approved for exports to the Community by the veterinary services of that country.
(4)
Decision 92/452/EEC should therefore be amended accordingly.
(5)
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
The Annex to Decision 92/452/EEC is amended in accordance with the Annex to this Decision.
Article 2
This Decision shall apply from the third day following that of its publication in the Official Journal of the European Union.
Article 3
This Decision is addressed to the Member States.
Done at Brussels, 1 June 2006.
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COUNCIL DIRECTIVE of 21 December 1982 amending Directives 64/432/EEC and 72/461/EEC as regards certain measures relating to foot-and-mouth disease and swine vesicular disease (82/893/EEC)
THE COUNCIL OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Economic Community, and in particular Articles 43 and 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 Directive 64/432/EEC (3), as last amended by Directive 82/61/EEC (4), lays down the conditions to be met, as regards health, by live cattle and pigs intended for intra-Community trade;
Whereas, in view of the development of foot-and-mouth disease and swine vesicular disease in the Community, the Community measures provided for in Articles 4a and 4b of Directive 64/432/EEC should be retained for an additional period ; whereas, in addition, if foot-and-mouth disease occurs accidentally in a limited part of the territory of a Member State, the right to apply the provisions in question must be retained if the disease is eliminated;
Whereas Directive 72/461/EEC (5), as last amended by Directive 81/476/EEC (6), lays down the conditions to be met, as regards health, by animals whose meat is intended for intra-Community trade;
Whereas, having regard to the trend of foot-and-mouth disease in the Community, the Community measures provided for by Article 13 of Directive 72/461/EEC should be retained,
HAS ADOPTED THIS DIRECTIVE:
Article 1
Directive 64/432/EEC is hereby amended as follows: 1. in the first subparagraph of Article 4a, the date"31 December 1982" shall be replaced by"31 December 1983";
2. in Article 4b: (a) in the first and second subparagraphs,"31 December 1982", shall be replaced by"31 December 1983";
(b) the following paragraph shall be added:
"This Article shall continue to apply to: (i) the Member States defined in theintroductory part of the first paragraphwhere foot-and-mouth disease hasoccurred in a limited part of their territoryand has been eliminated,
(ii) the Member States defined in points Aand B of the first paragraph wherefoot-and-mouth disease has occurred ina limited part of their territory and hasbeen eliminated."
Article 2
In Article 13 of Directive 72/461/EEC, the date "31 December 1982" shall be replaced by "31 December 1983".
Article 3
Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive not later than 1 January 1983.
Article 4
This Directive is addressed to the Member States.
Done at Brussels, 21 December 1982.
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Council Regulation (EEC) No 601/92
of 2 March 1992
on the introduction of a prior surveillance system for imports of certain textile products originating in Albania, the Republic of Estonia, the Republic of Latvia and the Republic of Lithuania
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 Community and its Member States, at an extraordinary ministerial meeting held in the framework of European Political Cooperation in Brussels on 27 August 1991, confirmed their decision to establish diplomatic relations with the Republics of Estonia, Latvia and Lithuania (hereinafter referred to as the ‘Baltic republics’) and emphasized their commitment to offer support for these States' economic and political development; whereas the provisions of the Agreement between the Community and the Union of Soviet Socialist Republics on trade in textile products, concluded on 3 June 1991 (1), is therefore no longer applicable to textile products originating in these three countries;
Whereas, in accordance with the Council Mandate of 23 September 1991, concerning the negotiation of an Agreement on trade and cooperation between the Community and Albania, the Community also expects to finalize an Agreement on trade in textile products with that country;
Whereas, pending the conclusion of bilateral agreements on trade in textile products with Albania and the Baltic republics, provision should be made for prior Community surveillance of imports of certain such products, including those subject to economic outward processing operations; whereas, in this case, release for free circulation of the products in question should be subject to presentation of a standardized import document; whereas this document must be issued by the authorities of the Member States within a certain time limit following a declaration or simple request of the importer; whereas this import document may be used only pending a change in the import arrangements;
Whereas the system of prior surveillance provided for by this Regulation does not affect the provisions of Council Regulation (EEC) No 1765/82 of 30 June 1982 on common rules for imports from State-trading countries (2) nor of Council Regulation (EEC) No 3420/83 of 14 November 1983 on import arrangements for products originating in State-trading countries, not liberalized at Community level (3);
Whereas determination of the origin of textile products imported from these countries under these arrangements and the origin control procedures must comply with the relevant Community rules in force;
Whereas it is in the Community's interest to ensure the fullest possible exchange of information between the Member States and the Commission on the results of Community surveillance,
HAS ADOPTED THIS REGULATION:
Article 1
1. This Regulation shall apply to imports of products mentioned in Article 2 originating in Albania and in the Baltic republics.
2. For the purposes of this Regulation, an ‘originating product’ shall be as defined by the relevant Community rules in force. The origin of these products must be established by a certificate of origin issued by the competent authorities of Albania and of the Baltic republics, as the case may be, or by other forms of evidence authorized by the relevant Community rules.
Article 2
1. Imports of products listed in Annex I to this Regulation shall be subject to prior Community surveillance carried out in accordance with the procedures set out in Article 3.
2. Paragraph 1 shall also apply to the products listed in Annex II that have been subject to outward processing operations in accordance with the relevant Community rules in force.
Article 3
1. The release for free circulation of products under Community surveillance shall be subject to presentation of an import document. This document shall be issued by the Member States, free of charge, for all quantities requested no later than five working days after the lodging of a simple request by any Community importer in accordance with the national legislation in force, wherever he may be established in the Community.
2. The importer's request must indicate:
(a)
the name and address of the importer;
(b)
a description of the product, with reference to:
-
the CN codes,
-
the country of origin;
(c)
the expected date(s) and place(s) of delivery.
3. For products subject to surveillance as provided for in Article 2, the Member States shall notify the Commission within the first 10 days of each month of the quantities and values for which import documents have been issued in the preceding month.
This information from the Member States shall be broken down by category of product and by country.
4. Where the nature of the products or particular circumstances so require, the Commission may, at the request of a Member State or on its own initiative, adjust the frequency with which information must be notified.
5. Where necessary, the Commission shall notify the Member States of trends in imports into the Community of products listed in Annex I.
Article 4
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, 2 March 1992.
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COMMISSION REGULATION (EU) No 88/2010
of 29 January 2010
fixing the import duties in the cereals sector applicable from 1 February 2010
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 1249/96 of 28 June 1996 laying down detailed rules for the application of Council Regulation (EEC) No 1766/92 in respect of import duties in the cereals sector (2), and in particular Article 2(1) thereof,
Whereas:
(1)
Article 136(1) of Regulation (EC) No 1234/2007 states that the import duty on products falling within CN codes 1001 10 00, 1001 90 91, ex 1001 90 99 (high quality common wheat), 1002, ex 1005 other than hybrid seed, and ex 1007 other than hybrids for sowing, is to be equal to the intervention price valid for such products on importation increased by 55 %, minus the cif import price applicable to the consignment in question. However, that duty may not exceed the rate of duty in the Common Customs Tariff.
(2)
Article 136(2) of Regulation (EC) No 1234/2007 lays down that, for the purposes of calculating the import duty referred to in paragraph 1 of that Article, representative cif import prices are to be established on a regular basis for the products in question.
(3)
Under Article 2(2) of Regulation (EC) No 1249/96, the price to be used for the calculation of the import duty on products of CN codes 1001 10 00, 1001 90 91, ex 1001 90 99 (high quality common wheat), 1002 00, 1005 10 90, 1005 90 00 and 1007 00 90 is the daily cif representative import price determined as specified in Article 4 of that Regulation.
(4)
Import duties should be fixed for the period from 1 February 2010 and should apply until new import duties are fixed and enter into force,
HAS ADOPTED THIS REGULATION:
Article 1
From 1 February 2010, the import duties in the cereals sector referred to in Article 136(1) of Regulation (EC) No 1234/2007 shall be those fixed in Annex I to this Regulation on the basis of the information contained in Annex II.
Article 2
This Regulation shall enter into force on 1 February 2010.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 29 January 2010.
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Commission Decision
of 9 March 2000
amending Decision 97/830/EC as regards points of entry for Germany
(notified under document number C(2000) 501)
(Text with EEA relevance)
(2000/238/EC)
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Council Directive 93/43/EEC of 14 June 1993 on the hygiene of foodstuffs(1), and in particular Article 10(1) thereof,
After consulting the Member States,
Whereas:
(1) The Commission, in Decision 97/830/EC(2), as amended by Decision 98/400/EC(3), adopted measures imposing special conditions on the importation of pistachios and certain products derived from pistachios originating in, or consigned from Iran.
(2) It is necessary to add to Annex II to Decision 97/830/EC two more points of entry for Germany through which those pistachios and products may be imported.
(3) For the sake of clarity, therefore, Annex II should be replaced,
HAS ADOPTED THIS DECISION:
Article 1
Annex II to Decision 97/830/EC is replaced by the Annex to this Decision.
Article 2
This Decision is addressed to the Member States.
Done at Brussels, 9 March 2000.
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*****
COMMISSION REGULATION (EEC) No 699/87
of 11 March 1987
amending Regulation (EEC) No 2035/86 fixing for the marketing year 1986/87 the compensatory amounts applicable to processed tomato products and laying down special detailed rules for their application
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Economic Community,
Having regard to the Act of Accession of Spain and Portugal, and in particular Articles 118 (3) (a) and 304 (3) (a) thereof,
Whereas Commission Regulation (EEC) No 2035/86 (1), as amended by Regulation (EEC) No 2405/86 (2) laid down special rules for the application of compensatory amounts for processed tomato products; whereas with effect from 13 February 1987 export refunds are applicable to certain processed tomato products pursuant to Commission Regulation (EEC) No 444/87 (3); whereas the amount of export refunds should at the moment of export be set off against the compensatory amount; whereas such a procedure is already provided for in Commission Regulation (EEC) No 3154/85 (4) of 11 November 1985 in respect of monetary compensatory amounts; whereas that procedure should also be made applicable for compensatory amounts applicable to processed tomato products;
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
Article 5 of Regulation (EEC) No 2035/86 is hereby replaced by the following:
'Article 5
1. Any export refunds applicable to the products listed in the Annex shall on export to non-member countries from Spain and Portugal be deducted from the compensatory amount applicable.
The amount by which the compensatory amount is reduced shall, at the time of acceptance of the export declaration, be covered by an appropriate security.
The provisions of Article 12 (2) to (6) of Commission Regulation (EEC) No 3154/85 (1) shall apply.
2. The provisions of Title III of Regulation (EEC) No 223/77 shall apply to products covered by this Regulation and which are exported from Spain and Portugal.
(1) OJ No L 310, 21. 11. 1985, p. 9.'
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 with effect from 13 February 1987.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 11 March 1987.
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COUNCIL DECISION of 11 December 1986 concerning the provisional application of the Agreement between the European Economic Community and Hong Kong on trade in textile products (88/213/EEC)
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 Commission has, on behalf of the European Economic Community, negotiated an Agreement with Hong Kong on trade in textile products;
Whereas the said Agreement should be applied provisionally as from 1 January 1987 pending the completion of the procedures necessary for its conclusion, provided that there is a reciprocal provisional application on the part of the contracting country,
HAS DECIDED AS FOLLOWS:
Article 1 The Agreement between the European Economic Community and Hong Kong on trade in textile products shall be applied provisionally as from 1 January 1987 pending its formal conclusion provided that there is a reciprocal provisional application on the part of the contracting country.
The text of the Agreement is attached to this Decision (1).
Article 2 The Commission is invited to inform the contracting country of this Decision and seek its agreement thereto, which will be duly communicated to the Council.
Done at Brussels, 11 December 1986.
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COMMISSION REGULATION (EC) No 1749/2004
of 7 October 2004
opening and providing for the administration of an autonomous tariff quota for preserved mushrooms from 1 September 2004
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to the Treaty of Accession of the Czech Republic, Estonia, Cyprus, Latvia, Lithuania, Hungary, Malta, Poland, Slovenia and Slovakia,
Having regard to the Act of Accession of the Czech Republic, Estonia, Cyprus, Latvia, Lithuania, Hungary, Malta, Poland, Slovenia and Slovakia, and in particular the first paragraph of Article 41 thereof,
Whereas:
(1)
Commission Regulation (EC) No 2125/95 (1) opens tariff quotas for preserved mushrooms and lays down rules for the administration thereof.
(2)
Commission Regulation (EC) No 359/2004 of 27 February 2004 laying down transitional measures applicable to Regulation (EC) No 2125/95 by reason of the accession of the Czech Republic, Estonia, Cyprus, Latvia, Lithuania, Hungary, Malta, Poland, Slovenia and Slovakia (2) adopts measures allowing importers from these countries to benefit from Regulation (EC) No 2125/95. The aim of these measures is to make a distinction between traditional importers and new importers in the new Member States, and to adjust the quantities to which licence applications presented by traditional importers from the new Member States can relate so that these importers can benefit from this system.
(3)
To ensure uninterrupted supplies to the enlarged Community market while taking account of the economic supply conditions in the new Member States prior to accession, an autonomous and temporary import tariff quota should be opened for preserved mushrooms of the genus Agaricus falling within CN codes 0711 51 00, 2003 10 20 and 2003 10 30. This new tariff quota is in addition to the one opened by Commission Regulation (EC) No 1076/2004 of 7 June 2004 opening and providing for the administration of an autonomous tariff quota for preserved mushrooms (3).
(4)
This new quota must be transitional and may not prejudge the outcome of the negotiations under way in the context of the World Trade Organisation (WTO) as a result of the accession of new members.
(5)
The Management Committee for Products Processed from Fruit and Vegetables has not delivered an opinion within the time limit set by its Chairman,
HAS ADOPTED THIS REGULATION:
Article 1
1. An autonomous tariff quota of 1 200 tonnes (drained net weight), bearing serial number 09.4110, hereinafter the ‘autonomous quota’, shall be opened from 1 September 2004 for Community imports of preserved mushrooms of the genus Agaricus spp. falling within CN codes 0711 51 00, 2003 10 20 and 2003 10 30.
2. The ad valorem duty applicable to products imported under the autonomous quota shall be 12 % for products falling within CN code 0711 51 00 and 23 % for products falling within CN codes 2003 10 20 and 2003 10 30.
Article 2
Regulations (EC) No 2125/95 and (EC) No 359/2004 shall apply to the management of the autonomous quota, subject to the provisions of this Regulation.
However, Articles 1, 2(2) and 4(5) of Regulation (EC) No 2125/95 shall not apply to the management of the autonomous quota.
Article 3
Import licences issued under the autonomous quota, hereinafter ‘licences’, shall be valid until 31 March 2005.
Box 24 of the licences shall show one of the entries listed in Annex I.
Article 4
1. Importers may submit licence applications to the competent authorities of the Member States in the five working days following the date of entry into force of this Regulation.
Box 20 of the licences shall show one of the entries listed in Annex II.
2. Licence applications submitted by a single traditional importer may not relate to a quantity exceeding 9 % of the autonomous quota.
3. Licence applications submitted by a single new importer may not relate to a quantity exceeding 1 % of the autonomous quota.
Article 5
The autonomous quota shall be allocated as follows:
-
95 % to traditional importers,
-
5 % to new importers.
If the quantity allocated to one of the categories of importers is not used in full, the balance may be allocated to the other category.
Article 6
1. The Member States shall notify the Commission, on the seventh working day following the entry into force of this Regulation, of the quantities for which licence applications have been made.
2. Licences shall be issued on the 12th working day following the entry into force of this Regulation, unless the Commission has taken special measures under paragraph 3 of this Article.
3. Where the Commission finds, on the basis of the information notified under paragraph 1 of this Article, that licence applications exceed the quantities available for a category of importers under Article 5 of this Regulation, it shall adopt, by means of a regulation, a single reduction percentage for the applications in question.
Article 7
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 October 2004.
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DECISION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL
of 22 October 2008
on the mobilisation of the EU Solidarity Fund in accordance with point 26 of the Interinstitutional Agreement of 17 May 2006 between the European Parliament, the Council and the Commission on budgetary discipline and sound financial management
(2008/879/EC)
THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION,
Having regard to the Interinstitutional Agreement of 17 May 2006 between the European Parliament, the Council and the Commission on budgetary discipline and sound financial management (1), and in particular point 26 thereof,
Having regard to Council Regulation (EC) No 2012/2002 of 11 November 2002 establishing the European Union Solidarity Fund (2),
Having regard to the proposal from the Commission,
Whereas:
(1)
The European Union has created a European Union Solidarity Fund (the Fund) to show solidarity with the population of regions struck by disasters.
(2)
The Interinstitutional Agreement of 17 May 2006 allows the mobilisation of the Fund within the annual ceiling of EUR 1 billion.
(3)
Regulation (EC) No 2012/2002 contains the provisions whereby the Fund may be mobilised.
(4)
France has submitted an application to mobilise the Fund, concerning a disaster caused by hurricane ‘Dean’ in August 2007,
HAVE DECIDED AS FOLLOWS:
Article 1
For the general budget of the European Union for the financial year 2008, the European Union Solidarity Fund shall be mobilised to provide the sum of EUR 12 780 000 in commitment and payment appropriations.
Article 2
This Decision shall be published in the Official Journal of the European Union.
Done at Strasbourg, 22 October 2008.
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COMMISSION DECISION
of 26 April 2005
establishing ecological criteria and the related assessment and verification requirements for the award of the Community eco-label to lubricants
(notified under document number C(2005) 1372)
(Text with EEA relevance)
(2005/360/EC)
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Regulation (EC) No 1980/2000 of the European Parliament and of the Council of 17 July 2000 on a revised Community eco-label award scheme (1), and in particular the second subparagraph of Article 6(1) thereof,
After consulting the European Union Eco-Labelling Board,
Whereas:
(1)
Under Regulation (EC) No 1980/2000, the Community eco-label may be awarded to a product possessing characteristics which enable it to contribute significantly to improvements in relation to key environmental aspects.
(2)
Regulation (EC) No 1980/2000 provides that specific eco-label criteria, drawn up on the basis of the criteria drafted by the European Union Eco-Labelling Board, are to be established according to product groups.
(3)
Since the use of lubricants may be hazardous for the environment, due to, for example, their aquatic toxicity or their bioaccumulation, appropriate ecological criteria should be laid down.
(4)
The environmental impact may be considered negligible in the case of substances contained in lubricants which, when applied, change their chemical nature and no longer need to be classified according to Directive 1999/45/EC of the European Parliament and of the Council of 31 May 1999 concerning the approximation of the laws, regulations and administrative provisions of the Member States relating to the classification, packaging and labelling of dangerous preparations (2). The criteria for eco labels should therefore not apply to those substances where less than 0,1 % of the substance in the treated part remains in the form as observed before application.
(5)
The ecological criteria and the related assessment and verification requirements should be valid for a period of four years.
(6)
The measures provided for in this Decision are in accordance with the opinion of the Committee instituted by Article 17 of Regulation (EC) No 1980/2000,
HAS ADOPTED THIS DECISION:
Article 1
The product group ‘lubricants’ shall comprise hydraulic oils, greases, chainsaw oils, two stroke oils, concrete release agents and other total loss lubricants, for use by consumers and professional users.
Article 2
1. For the purpose of this Decision, the following definitions shall apply:
(a)
‘lubricant’ means a preparation consisting of base fluids and additives;
(b)
‘base fluid’ means a lubricating fluid whose flow, ageing, lubricity and anti-wear properties, as well as its properties regarding contaminant suspension, have not been improved by the inclusion of additives;
(c)
‘thickener’ means a substance in the base fluid used to thicken or modify the rheology of a lubricating fluid or grease;
(d)
‘main component’ means any substance accounting for more than 5 % by weight of the lubricant;
(e)
‘additive’ means a substance whose primary functions are the improvement of the flow, ageing, lubricity, anti-wear properties or of contaminant suspension;
(f)
‘grease’ means a solid to semi-solid preparation which consists of a thickening agent in a liquid lubricant.
2. In the case of greases, other ingredients imparting special properties may be included.
Article 3
In order to be awarded the Community eco-label for lubricants under Regulation (EC) No 1980/2000, a lubricant must fall within the product group ‘lubricants’ and must comply with the criteria set out in the Annex to this Decision.
The criteria shall apply to the freshly manufactured product at the time of delivery.
Where criteria are formulated in terms of constituent substances, those criteria shall apply to any substance which has been deliberately added and which constitutes more than 0,1 % of the product’s content, as measured both before and after any chemical reaction has taken place between the substances mixed to provide the lubricant preparation.
The criteria shall not, however, apply to a substance which, on application, changes its chemical nature so as no longer to warrant classification according to Directive 1999/45/EC, and of which less than 0,1 % in the treated part remains in its pre-application form.
Article 4
The ecological criteria for the product group ‘lubricants’, and the related assessment and verification requirements, shall be valid until 31 May 2009.
Article 5
For administrative purposes, the code number assigned to the product group ‘lubricants’ shall be ‘27’.
Article 6
This Decision is addressed to the Member States.
Done at Brussels, 26 April 2005.
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*****
COMMISSION DECISION
of 10 May 1984
approving an amendment to the programme for the primary storage of cereals and the production of compound feedingstuffs in Belgium pursuant to Council Regulation (EEC) No 355/77
(Only the Dutch and French texts are authentic)
(84/286/EEC)
THE COMMISSION OF THE EUROPEAN
COMMUNITIES,
Having regard to the Treaty establishing the European Economic Community,
Having regard to Council Regulation (EEC) No 355/77 of 15 February 1977 on common measures to improve the conditions under which agricultural products are processed and marketed (1), as last amended by Regulation (EEC) No 3164/82 (2), and in particular Article 5 thereof,
Whereas on 31 January 1983 the Belgian Government forwarded an amendment to its programme for the primary storage of cereals and the production of compound feedingstuffs, approved by the Commission Decision of 4 December 1981;
Whereas the said amendment relates to the creation and modernization of port facilities for storage of cereals with the aim of their adaptation to the requirements of increasing cereal exports;
Whereas the use of Belgian port facilities are indispensable for the exportation of cereals grown in certain regions of France, the Federal Republic of Gemany and the United Kingdom; whereas for the objectives of the amended programme these regions may therefore be considered as being covered by the programme; whereas it is therefore consistent with the requirements and objectives of Regulation (EEC) No 355/77;
Whereas approval of this amendment to the programme does not affect decisions to be taken pursuant to Article 14 of Regulation (EEC) No 355/77 in respect of Community finance for projects in particular with a view to verifying if these projects give sufficient guarantees that the facilities are not used for:
- the primary storage of cereals,
- the storage of imported cereals,
- the storage of cereals coming from intervention;
Whereas this amendment can be approved only for applications within the meaning of Article 24 (4) of Regulation (EEC) No 355/77;
Whereas the Standing Committee on Agricultural Structure has not delivered an opinion within the time limit set by its chairman,
HAS ADOPTED THIS DECISION:
Article 1
1. The amendment to the programme for primary storage of cereals and the production of compound feedingstuffs forwarded by the Belgian Government pursuant to Regulation (EEC) No 355/77 on 31 January 1983 is hereby approved.
2. The approval of the amendment shall apply only to projects submitted before 1 May 1984.
Article 2
This Decision is addressed to the Kingdom of Belgium.
Done at Brussels, 10 May 1984.
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COMMISSION REGULATION (EC) No 1153/2008
of 20 November 2008
granting no export refund for skimmed milk powder in the framework of the standing invitation to tender provided for in Regulation (EC) No 619/2008
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
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), and in particular Article 164(2), in conjunction with Article 4, thereof,
Whereas:
(1)
Commission Regulation (EC) No 619/2008 of 27 June 2008 opening a standing invitation to tender for export refunds concerning certain milk products (2) provides for a standing invitation to tender procedure.
(2)
Pursuant to Article 6 of Commission Regulation (EC) No 1454/2007 of 10 December 2007 laying down common rules for establishing a tender procedure for fixing export refunds for certain agricultural products (3) and following an examination of the tenders submitted in response to the invitation to tender, it is appropriate not to grant any refund for the tendering period ending on 18 November 2008.
(3)
The measures provided for in this Regulation are in accordance with the opinion of the Management Committee for the Common Organisation of Agricultural Markets,
HAS ADOPTED THIS REGULATION:
Article 1
For the standing invitation to tender opened by Regulation (EC) No 619/2008, for the tendering period ending on 18 November 2008, no export refund shall be granted for the product and destinations referred to in Article 1(1) of that 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, 20 November 2008.
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COMMISSION REGULATION (EEC) No 1782/91 of 20 June 1991 on the supply of various consignments of cereals 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 Regulation (EEC) No 1930/90 (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 following the taking of a number of decisions on the allocation of food aid the Commission has allocated to certain countries and beneficiary organizations 10 960 tonnes of cereals;
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), as amended by Regulation (EEC) No 790/91 (5); 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
Cereals shall be mobilized in the Community, as Community food aid for supply to the recipients listed in the Annex, in accordance with Regulation (EEC) No 2200/87 and under the conditions set out in the Annex. Supplies shall be awarded by the tendering procedure.
The successful tenderer is deemed to have noted and accepted all the general and specific conditions applicable. Any other condition or reservation included in his tender is deemed unwritten. 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, 20 June 1991.
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DIRECTIVE 98/5/EC OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 16 February 1998 to facilitate practice of the profession of lawyer on a permanent basis in a Member State other than that in which the qualification was obtained
THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION,
Having regard to the Treaty establishing the European Community, and in particular Article 49, Article 57(1) and the first and third sentences of Article 57(2) 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),
(1) Whereas, pursuant to Article 7a of the Treaty, the internal market is to comprise an area without internal frontiers; whereas, pursuant to Article 3(c) of the Treaty, the abolition, as between Member States, of obstacles to freedom of movement for persons and services constitutes one of the objectives of the Community; whereas, for nationals of the Member States, this means among other things the possibility of practising a profession, whether in a self-employed or a salaried capacity, in a Member State other than that in which they obtained their professional qualifications;
(2) Whereas, pursuant to Council Directive 89/48/EEC of 21 December 1988 on a general system for the recognition of higher-education diplomas awarded on completion of professional education and training of at least three years' duration (4), a lawyer who is fully qualified in one Member State may already ask to have his diploma recognised with a view to establishing himself in another Member State in order to practise the profession of lawyer there under the professional title used in that State; whereas the objective of Directive 89/48/EEC is to ensure that a lawyer is integrated into the profession in the host Member State, and the Directive seeks neither to modify the rules regulating the profession in that State nor to remove such a lawyer from the ambit of those rules;
(3) Whereas while some lawyers may become quickly integrated into the profession in the host Member State, inter alia by passing an aptitude test as provided for in Directive 89/48/EEC, other fully qualified lawyers should be able to achieve such integration after a certain period of professional practice in the host Member State under their home-country professional titles or else continue to practise under their home-country professional titles;
(4) Whereas at the end of that period the lawyer should be able to integrate into the profession in the host Member States after verification that the possesses professional experience in that Member State;
(5) Whereas action along these lines is justified at Community level not only because, compared with the general system for the recognition of diplomas, it provides lawyers with an easier means whereby they can integrate into the profession in a host Member State, but also because, by enabling lawyers to practise under their home-country professional titles on a permanent basis in a host Member State, it meets the needs of consumers of legal services who, owing to the increasing trade flows resulting, in particular, from the internal market, seek advice when carrying out cross-border transactions in which international law, Community law and domestic laws often overlap;
(6) Whereas action is also justified at Community level because only a few Member States already permit in their territory the pursuit of activities of lawyers, otherwise than by way of provision of services, by lawyers from other Member States practising under their home-country professional titles; whereas, however, in the Member States where this possibility exists, the practical details concerning, for example, the area of activity and the obligation to register with the competent authorities differ considerably; whereas such a diversity of situations leads to inequalities and distortions in competition between lawyers from the Member States and constitutes an obstacle to freedom of movement; whereas only a directive laying down the conditions governing practice of the profession, otherwise than by way of provision of services, by lawyers practising under their home-country professional titles is capable of resolving these difficulties and of affording the same opportunities to lawyers and consumers of legal services in all Member States;
(7) Whereas, in keeping with its objective, this Directive does not lay down any rules concerning purely domestic situations, and where it does affect national rules regulating the legal profession it does so no more than is necessary to achieve its purpose effectively; whereas it is without prejudice in particular to national legislation governing access to and practice of the profession of lawyer under the professional title used in the host Member State;
(8) Whereas lawyers covered by the Directive should be required to register with the competent authority in the host Member State in order that that authority may ensure that they comply with the rules of professional conduct in force in that State; whereas the effect of such registration as regards the jurisdictions in which, and the levels and types of court before which, lawyers may practise is determined by the law applicable to lawyers in the host Member State;
(9) Whereas lawyers who are not integrated into the profession in the host Member State should practise in that State under their home-country professional titles so as to ensure that consumers are properly informed and to distinguish between such lawyers and lawyers from the host Member State practising under the professional title used there;
(10) Whereas lawyers covered by this Directive should be permitted to give legal advice in particular on the law of their home Member States, on Community law, on international law and on the law of the host Member State; whereas this is already allowed as regards the provision of services under Council Directive 77/249/EEC of 22 March 1977 to facilitate the effective excercise by lawyers of freedom to provide services (5); whereas, however, provision should be made, as in Directive 77/249/EEC, for the option of excluding from the activities of lawyers practising under their home-country professional titles in the United Kingdom and Ireland the preparation of certain formal documents in the conveyancing and probate spheres; whereas this Directive in no way affects the provisions under which, in every Member State, certain activities are reserved for professions other than the legal profession; whereas the provision in Directive 77/249/EEC concerning the possibility of the host Member State to require a lawyer practising under his home-country professional title to work in conjunction with a local lawyer when representing or defending a client in legal proceedings should also be incorporated in this Directive; whereas that requirement must be interpreted in the light of the case law of the Court of Justice of the European Communities, in particular its judgment of 25 February 1988 in Case 427/85, Commission v. Germany (6);
(11) Whereas to ensure the smooth operation of the justice system Member States should be allowed, by means of specific rules, to reserve access to their highest courts to specialist lawyers, without hindering the integration of Member States' lawyers fulfilling the necessary requirements;
(12) Whereas a lawyer registered under his home-country professional title in the host Member State must remain registered with the competent authority in his home Member State if he is to retain his status of lawyer and be covered by this Directive; whereas for that reason close collaboration between the competent authorities is indispensable, in particular in connection with any disciplinary proceedings;
(13) Whereas lawyers covered by this Directive, whether salaried or self-employed in their home Member States, may practise as salaried lawyers in the host Member State, where that Member State offers that possibility to its own lawyers;
(14) Whereas the purpose pursued by this Directive in enabling lawyers to practise in another Member State under their home-country professional titles is also to make it easier for them to obtain the professional title of that host Member State; whereas under Articles 48 and 52 of the Treaty as interpreted by the Court of Justice the host Member State must take into consideration any professional experience gained in its territory; whereas after effectively and regularly pursuing in the host Member State an activity in the law of that State including Community law for a period of three years, a lawyer may reasonably be assumed to have gained the aptitude necessary to become fully integrated into the legal profession there; whereas at the end of that period the lawyer who can, subject to verification, furnish evidence of his professional competence in the host Member State should be able to obtain the professional title of that Member State; whereas if the period of effective and regular professional activity of at least three years includes a shorter period of practice in the law of the host Member State, the authority shall also take into consideration any other knowledge of that State's law, which it may verify during an interview; whereas if evidence of fulfilment of these conditions is not provided, the decision taken by the competent authority of the host State not to grant the State's professional title under the facilitation arrangements linked to those conditions must be substantiated and subject to appeal under national law;
(15) Whereas, for economic and professional reasons, the growing tendency for lawyers in the Community to practise jointly, including in the form of associations, has become a reality; whereas the fact that lawyers belong to a grouping in their home Member State should not be used as a pretext to prevent or deter them from establishing themselves in the host Member State; whereas Member States should be allowed, however, to take appropriate measures with the legitimate aim of safeguarding the profession's independence; whereas certain guarantees should be provided in those Member States which permit joint practice,
HAVE ADOPTED THIS DIRECTIVE:
Article 1
Object, scope and definitions
1. The purpose of this Directive is to facilitate practice of the profession of lawyer on a permanent basis in a self-employed or salaried capacity in a Member State other than that in which the professional qualification was obtained.
2. For the purposes of this Directive:
(a) 'lawyer` means any person who is a national of a Member State and who is authorised to pursue his professional activities under one of the following professional titles:
TABLE
(b) 'home Member State` means the Member State in which a lawyer acquired the right to use one of the professional titles referred to in (a) before practising the profession of lawyer in another Member State;
(c) 'host Member State` means the Member State in which a lawyer practises pursuant to this Directive;
(d) 'home-country professional title` means the professional title used in the Member State in which a lawyer acquired the right to use that title before practising the profession of lawyer in the host Member State;
(e) 'grouping` means any entity, with or without legal personality, formed under the law of a Member State, within which lawyers pursue their professional activities jointly under a joint name;
(f) 'relevant professional title` or 'relevant profession` means the professional title or profession governed by the competent authority with whom a lawyer has registered under Article 3, and 'competent authority` means that authority.
3. This Directive shall apply both to lawyers practising in a self-employed capacity and to lawyers practising in a salarial capacity in the home Member State and, subject to Article 8, in the host Member State.
4. Practice of the profession of lawyer within the meaning of this Directive shall not include the provision of services, which is covered by Directive 77/249/EEC.
Article 2
Right to practise under the home-country professional title
Any lawyer shall be entitled to pursue on a permanent basis, in any other Member State under his home-country professional title, the activities specified in Article 5.
Integration into the profession of lawyer in the host Member State shall be subject to Article 10.
Article 3
Registration with the competent authority
1. A lawyer who wishes to practise in a Member State other than that in which he obtained his professional qualification shall register with the competent authority in that State.
2. The competent authority in the host Member State shall register the lawyer upon presentation of a certificate attesting to his registration with the competent authority in the home Member State. It may require that, when presented by the competent authority of the home Member State, the certificate be not more than three months old. It shall inform the competent authority in the home Member State of the registration.
3. For the purpose of applying paragraph 1:
- in the United Kingdom and Ireland, lawyers practising under a professional title other than those used in the United Kingdom or Ireland shall register either with the authority responsible for the profession of barrister or advocate or with the authority responsible for the profession of solicitor,
- in the United Kingdom, the authority responsible for a barrister from Ireland shall be that responsible for the profession of barrister or advocate, and the authority responsible for a solicitor from Ireland shall be that responsible for the profession of solicitor,
- in Ireland, the authority responsible for a barrister or an advocate from the United Kingdom shall be that responsible for the profession of barrister, and the authority responsible for a solicitor from the United Kingdom shall be that responsible for the profession of solicitor.
4. Where the relevant competent authority in a host Member State publishes the names of lawyers registered with it, it shall also publish the names of lawyers registered pursuant to this Directive.
Article 4
Practice under the home-country professional title
1. A lawyer practising in a host Member State under his home-country professional title shall do so under that title, which must be expressed in the official language or one of the official languages of his home Member State, in an intelligible manner and in such a way as to avoid confusion with the professional title of the host Member State.
2. For the purpose of applying paragraph 1, a host Member State may require a lawyer practising under his home-country professional title to indicate the professional body of which he is a member in his home Member State or the judicial authority before which he is entitled to practise pursuant to the laws of his home Member State. A host Member State may also require a lawyer practising under his home-country professional title to include a reference to his registration with the competent authority in that State.
Article 5
Area of activity
1. Subject to paragraphs 2 and 3, a lawyer practising under his home-country professional title carries on the same professional activities as a lawyer practising under the relevant professional title used in the host Member State and may, inter alia, give advice on the law of his home Member State, on Community law, on international law and on the law of the host Member State. He shall in any event comply with the rules of procedure applicable in the national courts.
2. Member States which authorise in their territory a prescribed category of lawyers to prepare deeds for obtaining title to administer estates of deceased persons and for creating or transferring interests in land which, in other Member States, are reserved for professions other than that of lawyer may exclude from such activities lawyers practising under a home-country professional title conferred in one of the latter Member States.
3. For the pursuit of activities relating to the representation or defence of a client in legal proceedings and insofar as the law of the host Member State reserves such activities to lawyers practising under the professional title of that State, the latter may require lawyers practising under their home-country professional titles to work in conjunction with a lawyer who practises before the judicial authority in question and who would, where necessary, be answerable to that authority or with an 'avoué` practising before it.
Nevertheless, in order to ensure the smooth operation of the justice system, Member States may lay down specific rules for access to supreme courts, such as the use of specialist lawyers.
Article 6
Rules of professional conduct applicable
1. Irrespective of the rules of professional conduct to which he is subject in his home Member State, a lawyer practising under his home-country professional title shall be subject to the same rules of professional conduct as lawyers practising under the relevant professional title of the host Member State in respect of all the activities he pursues in its territory.
2. Lawyers practising under their home-country professional titles shall be granted appropriate representation in the professional associations of the host Member State. Such representation shall involve at least the right to vote in elections to those associations' governing bodies.
3. The host Member State may require a lawyer practising under his home-country professional title either to take out professional indemnity insurance or to become a member of a professional guarantee fund in accordance with the rules which that State lays down for professional activities pursued in its territory. Nevertheless, a lawyer practising under his home-country professional title shall be exempted from that requirement if he can prove that he is covered by insurance taken out or a guarantee provided in accordance with the rules of his home Member State, insofar as such insurance or guarantee is equivalent in terms of the conditions and extent of cover. Where the equivalence is only partial, the competent authority in the host Member State may require that additional insurance or an additional guarantee be contracted to cover the elements which are not already covered by the insurance or guarantee contracted in accordance with the rules of the home Member State.
Article 7
Disciplinary proceedings
1. In the event of failure by a lawyer practising under his home-country professional title to fulfil the obligations in force in the host Member State, the rules of procedure, penalties and remedies provided for in the host Member State shall apply.
2. Before initiating disciplinary proceedings against a lawyer practising under his home-country professional title, the competent authority in the host Member State shall inform the competent authority in the home Member State as soon as possible, furnishing it with all the relevant details.
The first subparagraph shall apply mutatis mutandis where disciplinary proceedings are initiated by the competent authority of the home Member State, which shall inform the competent authority of the host Member State(s) accordingly.
3. Without prejudice to the decision-making power of the competent authority in the host Member State, that authority shall cooperate throughout the disciplinary proceedings with the competent authority in the home Member State. In particular, the host Member State shall take the measures necessary to ensure that the competent authority in the home Member State can make submissions to the bodies responsible for hearing any appeal.
4. The competent authority in the home Member State shall decide what action to take, under its own procedural and substantive rules, in the light of a decision of the competent authority in the host Member State concerning a lawyer practising under his home-country professional title.
5. Although it is not a prerequisite for the decision of the competent authority in the host Member State, the temporary or permanent withdrawal by the competent authority in the home Member State of the authorisation to practise the profession shall automatically lead to the lawyer concerned being temporarily or permanently prohibited from practising under his home-country professional title in the host Member State.
Article 8
Salaried practice
A lawyer registered in a host Member State under his home-country professional title may practise as a salaried lawyer in the employ of another lawyer, an association or firm of lawyers, or a public or private enterprise to the extent that the host Member State so permits for lawyers registered under the professional title used in that State.
Article 9
Statement of reasons and remedies
Decisions not to effect the registration referred to in Article 3 or to cancel such registration and decisions imposing disciplinary measures shall state the reasons on which they are based.
A remedy shall be available against such decisions before a court or tribunal in accordance with the provisions of domestic law.
Article 10
Like treatment as a lawyer of the host Member State
1. A lawyer practising under his home-country professional title who has effectively and regularly pursued for a period of at least three years an activity in the host Member State in the law of that State including Community law shall, with a view to gaining admission to the profession of lawyer in the host Member State, be exempted from the conditions set out in Article 4(1)(b) of Directive 89/48/EEC, 'Effective and regular pursuit` means actual exercise of the activity without any interruption other than that resulting from the events of everyday life.
It shall be for the lawyer concerned to furnish the competent authority in the host Member State with proof of such effective regular pursuit for a period of at least three years of an activity in the law of the host Member State. To that end:
(a) the lawyer shall provide the competent authority in the host Member State with any relevant information and documentation, notably on the number of matters he has dealt with and their nature;
(b) the competent authority of the host Member State may verify the effective and regular nature of the activity pursued and may, if need be, request the lawyer to provide, orally or in writing, clarification of or further details on the information and documentation mentioned in point (a).
Reasons shall be given for a decision by the competent authority in the host Member State not to grant an exemption where proof is not provided that the requirements laid down in the first subparagraph have been fulfilled, and the decision shall be subject to appeal under domestic law.
2. A lawyer practising under his home-country professional title in a host Member State may, at any time, apply to have his diploma recognised in accordance with Directive 89/48/EEC with a view to gaining admission to the profession of lawyer in the host Member State and practising it under the professional title corresponding to the profession in that Member State.
3. A lawyer practising under his home-country professional title who has effectively and regularly pursued a professional activity in the host Member State for a period of at least three years but for a lesser period in the law of that Member State may obtain from the competent authority of that State admission to the profession of lawyer in the host Member State and the right to practise it under the professional title corresponding to the profession in that Member State, without having to meet the conditions referred to in Article 4(1)(b) of Directive 89/48/EEC, under the conditions and in accordance with the procedures set out below:
(a) The competent authority of the host Member State shall take into account the effective and regular professional activity pursued during the abovementioned period and any knowledge and professional experience of the law of the host Member State, and any attendance at lectures or seminars on the law of the host Member State, including the rules regulating professional practice and conduct.
(b) The lawyer shall provide the competent authority of the host Member State with any relevant information and documentation, in particular on the matters he has dealt with. Assessment of the lawyer's effective and regular activity in the host Member State and assessment of his capacity to continue the activity he has pursued there shall be carried out by means of an interview with the competent authority of the host Member State in order to verify the regular and effective nature of the activity pursued.
Reasons shall be given for a decision by the competent authority in the host Member State not to grant authorisation where proof is not provided that the requirements laid down in the first subparagraph have been fulfilled, and the decision shall be subject to appeal under domestic law.
4. The competent authority of the host Member State may, by reasoned decision subject to appeal under domestic law, refuse to allow the lawyer the benefit of the provisions of this Article if it considers that this would be against public policy, in a particular because of disciplinary proceedings, complaints or incidents of any kind.
5. The representatives of the competent authority entrusted with consideration of the application shall preserve the confidentiality of any information received.
6. A lawyer who gains admission to the profession of lawyer in the host Member State in accordance with paragraphs 1, 2 and 3 shall be entitled to use his home-country professional title, expressed in the official language or one of the official languages of his home Member State, alongside the professional title corresponding to the profession of lawyer in the host Member State.
Article 11
Joint practice
Where joint practise is authorised in respect of lawyers carrying on their activities under the relevant professional title in the host Member State, the following provisions shall apply in respect of lawyers wishing to carry on activities under that title or registering with the competent authority:
(1) One or more lawyers who belong to the same grouping in their home Member State and who practise under their home-country professional title in a host Member State may pursue their professional activities in a branch or agency of their grouping in the host Member State. However, where the fundamental rules governing that grouping in the home Member State are incompatible with the fundamental rules laid down by law, regulation or administrative action in the host Member State, the latter rules shall prevail insofar as compliance therewith is justified by the public interest in protecting clients and third parties.
(2) Each Member State shall afford two or more lawyers from the same grouping or the same home Member State who practise in its territory under their home-country professional titles access to a form of joint practice. If the host Member State gives its lawyers a choice between several forms of joint practice, those same forms shall also be made available to the aforementioned lawyers. The manner in which such lawyers practise jointly in the host Member State shall be governed by the laws, regulations and administrative provisions of that State.
(3) The host Member State shall take the measures necessary to permit joint practice also between:
(a) several lawyers from different Member States practising under their home-country professional titles;
(b) one or more lawyers covered by point (a) and one or more lawyers from the host Member State.
The manner in which such lawyers practice jointly in the host Member State shall be governed by the laws, regulations and administrative provisions of that State.
(4) A lawyer who wishes to practise under his home-country professional title shall inform the competent authority in the host Member State of the fact that he is a member of a grouping in his home Member State and furnish any relevant information on that grouping.
(5) Notwithstanding points 1 to 4, a host Member State, insofar as it prohibits lawyers practising under its own relevant professional title from practising the profession of lawyer within a grouping in which some persons are not members of the profession, may refuse to allow a lawyer registered under his home-country professional title to practice in its territory in his capacity as a member of his grouping. The grouping is deemed to include persons who are not members of the profession if
- the capital of the grouping is held entirely or partly, or
- the name under which it practises is used, or
- the decision-making power in that grouping is exercised, de facto or de jure,
by persons who do not have the status of lawyer within the meaning of Article 1(2).
Where the fundamental rules governing a grouping of lawyers in the home Member State are incompatible with the rules in force in the host Member State or with the provisions of the first subparagraph, the host Member State may oppose the opening of a branch or agency within its territory without the restrictions laid down in point (1).
Article 12
Name of the grouping
Whatever the manner in which lawyers practise under their home-country professional titles in the host Member State, they may employ the name of any grouping to which they belong in their home Member State.
The host Member State may require that, in addition to the name referred to in the first subparagraph, mention be made of the legal form of the grouping in the home Member State and/or of the names of any members of the grouping practising in the host Member State.
Article 13
Cooperation between the competent authorities in the home and host Member States and confidentiality
In order to facilitate the application of this Directive and to prevent its provisions from being misapplied for the sole purpose of circumventing the rules applicable in the host Member State, the competent authority in the host Member State and the competent authority in the home Member State shall collaborate closely and afford each other mutual assistance.
They shall preserve the confidentiality of the information they exchange.
Article 14
Designation of the competent authorities
Member States shall designate the competent authorities empowered to receive the applications and to take the decisions referred to in this Directive by 14 March 2000. They shall communicate this information to the other Member States and to the Commission.
Article 15
Report by the Commission
Ten years at the latest from the entry into force of this Directive, the Commission shall report to the European Parliament and to the Council on progress in the implementation of the Directive.
After having held all the necessary consultations, it shall on that occasion present its conclusions and any amendments which could be made to the existing system.
Article 16
Implementation
1. Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive by 14 March 2000. They shall forthwith inform the Commission thereof.
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 adopted by Member States.
2. Member States shall communicate to the Commission the texts of the main provisions of domestic law which they adopt in the field covered by this Directive.
Article 17
This Directive shall enter into force on the date of its publication in the Official Journal of the European Communities.
Article 18
Addressees
This Directive is addressed to the Member States.
Done at Brussels, 16 February 1998.
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COMMISSION REGULATION (EC) No 1085/2005
of 8 July 2005
amending Regulation (EC) No 795/2004 laying down detailed rules for the implementation of the single payment scheme provided for in Council Regulation (EC) No 1782/2003 establishing common rules for direct support schemes under the common agricultural policy and establishing certain support schemes for farmers
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Council Regulation (EC) No 1782/2003 of 29 September 2003 establishing common rules for direct support schemes under the common agricultural policy and establishing certain support schemes for farmers and amending Regulations (EEC) No 2019/93, (EC) No 1452/2001, (EC) No 1453/2001, (EC) No 1454/2001, (EC) No 1868/94, (EC) No 1251/1999, (EC) No 1254/1999, (EC) No 1673/2000, (EEC) No 2358/71 and (EC) No 2529/2001 (1), and in particular Article 60(2) and Article 145(c),
Whereas:
(1)
Commission Regulation (EC) No 795/2004 (2) introduces the implementing rules for the single payment scheme as from 2005. Experience of the administrative and operational implementation of that scheme at national level has shown that in certain respects further detailed rules are needed and in other respects the existing rules need to be clarified and adapted.
(2)
In order to facilitate the task of the national administrations in the framework of the implementation of Articles 54(2) and 61 of Regulation (EC) No 1782/2003, Member States should determine which areas are to be considered as permanent pasture for those areas in reparcelling schemes between the date for the aid application for 2003 and the date of application for the single payment scheme in the first year of implementation.
(3)
According to Article 50(2) of Regulation (EC) No 795/2004, in case of regional implementation of the single payment scheme as provided for in Article 58 of Regulation (EC) No 1782/2003, Member States shall communicate the information referred to in Article 50(1)(a) and (b) of Regulation (EC) No 795/2004 for each of the regions concerned, and, by 1 August of the first year of application of the single payment scheme at the latest, the corresponding part of the ceiling established in accordance with Article 58(3) of Regulation (EC) No 1782/2003. For reasons of simplification, it is appropriate to replace the date of 1 August by the same date as that provided for the communication referred to in Article 50(1) of Regulation (EC) No 795/2004.
(4)
Article 51 of Regulation (EC) No 1782/2003, as amended by Council Regulation (EC) No 864/2004 and made applicable as from 1 January 2005 by Commission Regulation (EC) No 394/2005, authorises Member States to allow secondary crops to be cultivated on the eligible hectares during a period of maximum three months starting each year on 15 August. It is appropriate to bring forward that date to allow the growing of temporary vegetable crops in regions where cereals are usually harvested sooner for climatic reasons as communicated by the Member States concerned to the Commission.
(5)
According to Article 60(1) of Regulation (EC) No 1782/2003 Member States implementing the regional option provided for in Article 59 of that Regulation may also use the parcels declared according to Article 44(3) of that Regulation for the production of products referred to in Article 1(2) of Council Regulation (EC) No 2200/96 of 28 October 1996 on the common organisation of the market in fruit and vegetables (3) or in Article 1(2) of Council Regulation (EC) No 2201/96 of 28 October 1996 on the common organisation of the markets in processed fruit and vegetable products (4) and of potatoes other than those intended for the manufacture of potato starch.
(6)
Article 60(2) of Regulation (EC) No 1782/2003 provides that Member States shall establish the number of hectares that may be used according to paragraph 1 of that Article by subdividing, according to objective criteria, the average of the number of hectares that were used for the production of the products referred to in paragraph 1 of that Article at national level during the three-year period 2000 to 2002 amongst the regions defined pursuant to Article 58(2) of Regulation (EC) No 1782/2003. It is appropriate to fix the average number of hectares at national and regional level on the basis of the data communicated to the Commission by the Member States concerned.
(7)
Regulation (EC) No 795/2004 should therefore be amended accordingly.
(8)
Due to the fact that Regulation (EC) No 795/2004 applies as from 1 January 2005, it is appropriate to provide that this Regulation applies retroactively from that date.
(9)
The measures provided for in this Regulation are in accordance with the opinion of the Management Committee for Direct Payments,
HAS ADOPTED THIS REGULATION:
Article 1
Regulation (EC) No 795/2004 is amended as follows:
1.
In Article 28a, the terms ‘the Annex’ are replaced by ‘Annex I’.
2.
In Article 32(4) the following third subparagraph is added:
‘Where areas were newly allocated in the framework of a national reparcelling scheme between the date for the aid application for 2003 and the date of application for the single payment scheme in the first year of implementation, the Member State concerned shall determine which areas are to be considered as permanent pasture for the purpose of articles 54(2) and 61 of Regulation (EC) No 1782/2003. In these cases Member States shall take into account the situation existing at farmer's level before the reparcelling by minimising, to the maximum extent, any effect on the farmer's possibilities to use the payments entitlements. In doing so Member States shall take action to prevent, in the area affected by the reparcelling scheme, any significant increase of the total area eligible to set aside entitlements as well as any significant decrease of permanent pasture.’
3.
In Article 41 the following paragraph 5 is added:
‘5. The average number of hectares at national and regional level, referred to in Article 60(2) of Regulation (EC) No 1782/2003, is fixed in Annex II to this Regulation’.
4.
In the first subparagraph of Article 50(2), the date of 1 August is replaced by the date of 15 September.
5.
The Annex is replaced by the text in Annex I to this Regulation.
6.
The text in Annex II to this Regulation is added as Annex II.
Article 2
This Regulation shall enter into force on the day of its publication in the Official Journal of the European Union.
It shall apply from 1 January 2005.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 8 July 2005.
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Commission Regulation (EC) No 2361/2001
of 30 November 2001
fixing the maximum purchase price for beef under the 15th partial invitation to tender pursuant to Regulation (EC) No 690/2001 and derogating from that Regulation
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), as last amended by Regulation (EC) No 1512/2001(2), and in particular Article 38(2) thereof,
Having regard to Commission Regulation (EC) No 690/2001 of 3 April 2001 on special market support measures in the beef sector(3), as last amended by Regulation (EC) No 2155/2001(4), and in particular Article 3(1) thereof,
Whereas:
(1) In application of Article 2(2) of Regulation (EC) No 690/2001, Commission Regulation (EC) No 713/2001 of 10 April 2001 on the purchase of beef under Regulation (EC) No 690/2001(5), as last amended by Regulation (EC) No 2288/2001(6), establishes the list of Member States in which the tendering is open for the 15th partial invitation to tender on 26 November 2001.
(2) In accordance with Article 3(1) of Regulation (EC) No 690/2001, where appropriate, a maximum purchase price for the reference class is to be fixed in the light of the tenders received, taking into account the provisions of Article 3(2) of that Regulation.
(3) Because of the need to support the market for beef in a reasonable way a maximum purchase price should be fixed at an appropriate level in the Member States concerned. In the light of the different level of market prices in those Member States, different maximum purchase prices should be fixed.
(4) Article 4(2) of Regulation (EC) No 690/2001 lays down that delivery of the quantity awarded under each individual tender is to take place within 17 days of the publication of the maximum buying-in price. However, the Christmas period could slow down deliveries significantly. As a result, provision should be made to allow the quantities awarded under the 16th partial invitation to tender on 10 December 2001 to be delivered until 10 January 2002.
(5) Due to the urgency of the support measures, this Regulation should enter into force immediately.
(6) 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
Under the 15th partial invitation to tender on 26 November 2001 opened under Regulation (EC) No 690/2001 the following maximum purchase prices shall be fixed:
- Germany: EUR 154,50/100 kg,
- Ireland: EUR 185,70/100 kg,
- Spain: EUR 155,85/100 kg,
- France: EUR 209,50/100 kg,
- Luxembourg: EUR 165,00/100 kg,
- Belgium: EUR 161,70/100 kg,
- Portugal: EUR 158,00/100 kg.
Article 2
Notwithstanding Article 4(2) of Regulation (EC) No 690/2001 delivery of the quantity awarded under the 16th partial invitation to tender of 10 December 2001 may take place until 10 January 2002 at the latest.
Article 3
This Regulation shall enter into force on 1 December 2001.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 30 November 2001.
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COMMISSION REGULATION (EC) No 1497/2006
of 10 October 2006
amending Regulation (EC) No 1428/2006 fixing the export refunds on syrup and certain other sugar products exported without further processing
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Council Regulation (EC) No 318/2006 of 20 February 2006 on the common organisation of the market in the sugar sector (1), and in particular the fourth subparagraph of Article 33(2) thereof,
Whereas:
(1)
Export refunds on the products listed in Article 1(1)(c), (d) and (g) of Regulation (EC) No 318/2006 were fixed from 29 September 2006 by Commission Regulation (EC) No 1428/2006 (2).
(2)
In the light of additional information available to the Commission, related in particular to the change in the relation between prices in the internal and world market, it is necessary to adjust export refunds currently applying.
(3)
Regulation (EC) No 1428/2006 should therefore be amended accordingly,
HAS ADOPTED THIS REGULATION:
Article 1
The Annex to Regulation (EC) No 1428/2006 is replaced by the text in the Annex to this Regulation.
Article 2
This Regulation shall enter into force on 11 October 2006.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 10 October 2006.
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*****
COUNCIL DECISION
of 23 April 1990
on the conclusion of the Convention between the European Economic Community and the United Nations Relief and Works Agency for Palestine Refugees (UNRWA) concerning aid to refugees in the countries of the Near East
(90/222/EEC)
THE COUNCIL OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Economic Community, and in particular Article 235 thereof,
Having regard to the proposal from the Commission,
Having regard to the opinion of the European Parliament (1),
Whereas the Commmunity wishes to continue its programme of aid to Palestine refugees in the Near East;
Whereas the Convention concluded with the United Nations Relief and Works Agency for Palestine Refugees (UNRWA) concerning aid to refugees in the countries of the Near East, approved on 5 May 1987 (2), expired on 31 December 1989;
Whereas a new Convention should be concluded with UNRWA so that the Community's aid continue to be provided as part of a comprehensive operation offering a measure of continuity;
Whereas continued support of UNRWA operations would be likely to contribute to the attainment of the Community objectives;
Whereas the Treaty does not provide, for the adoption of this Decision, powers other than those of Article 235,
HAS DECIDED AS FOLLOWS:
Article 1
The Convention between the European Community and the United Nations Relief and Works Agency for Palestine Refugees (UNRWA) concerning aid to refugees in the countries of the Near East is hereby approved on behalf of the Community.
The text of the Convention is attached to this Decision.
Article 2
Questions relating to the execution of the Community programme of food aid to UNRWA shall be governed by the procedure defined Regulation (EEC) No 3972/86 (3) or, if appropriate, by any regulation on food aid repealing and replacing it.
Article 3
The President of the Council is hereby authorized to designate the persons empowered to sign the Convention in order to bind the Community.
Done at Luxembourg, 23 April 1990.
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COMMISSION REGULATION (EC) No 1915/2005
of 24 November 2005
amending Regulation (EC) No 1982/2004 with regard to the simplification of the recording of the quantity and specifications on particular movements of goods
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Regulation (EC) No 638/2004 of the European Parliament and of the Council of 31 March 2004 on Community statistics relating to the trading of goods between Member States and repealing Council Regulation (EEC) No 3330/91 (1) and in particular Articles 3(4) and (5), 9, 10 and 12 thereof,
Whereas:
(1)
Commission Regulation (EC) No 1982/2004 of 18 November 2004 implementing Regulation (EC) No 638/2004 of the European Parliament and of the Council on Community statistics relating to the trading of goods between Member States and repealing Commission Regulations (EC) No 1901/2000 and (EEC) No 3590/92 (2) determines provisions for some data elements and specific goods. These provisions should be adapted in order to facilitate data collection and to become more accurate on some particular trade transactions.
(2)
With a view to reducing the reporting burden for parties responsible for providing the information, Member States should have the possibility to exempt companies from providing information on the quantity in net mass for all the goods for which supplementary units have to be mentioned at the same time.
(3)
In order to meet national data requirements Member States should be given more flexibility on the collection of codes of the Nature of Transaction as long as information transmitted to the Commission is not affected.
(4)
With a view to harmonising Community statistics relating to the trading of vessels and aircraft between Member States, data transmission on trade with vessels and aircraft should be limited to transactions registered in the national ships or aircraft register and involving companies established in the reporting Member State.
(5)
Additional provisions on data sources should be specified in order to enable national authorities to collect more precise information on arrival and dispatches as regards trade with vessels and aircraft, sea products, electricity and natural gas.
(6)
Clarification is also needed regarding replacement parts which are used for repair.
(7)
Regulation (EC) No 1982/2004 should therefore be amended accordingly.
(8)
The measures provided for in this Regulation are in accordance with the opinion of the Committee on statistics relating to the trading of goods between Member States,
HAS ADOPTED THIS REGULATION:
Article 1
Regulation (EC) No 1982/2004 is amended as follows:
1.
Article 9 is replaced by the following:
‘Article 9
Quantity of the goods
1. The net mass shall be given in kilograms. However, where there is a supplementary unit mentioned according to paragraph 2, it is not mandatory to request the specification of net mass from the parties responsible for providing information.
2. The supplementary units shall be mentioned in accordance with the information set out in the Combined Nomenclature hereinafter referred to as “CN” as established by Council Regulation (EEC) No 2658/87 (3) opposite the subheadings concerned, the list of which is published in Part I “Preliminary provisions” of the said Regulation.
2.
In Article 10, the following sentence is added:
‘Member States may collect code numbers for national purposes in column B provided that only the code numbers of column A are transmitted to the Commission.’
3.
Article 17 is amended as follows:
(a)
In paragraph 2, points (a) and (b) are replaced by following:
‘(a)
the transfer of ownership of a vessel or aircraft, from a natural or legal person established in another Member State to a natural or legal person established in the reporting Member State and registered in the national ships or aircraft register. This transaction shall be treated as an arrival;
(b)
the transfer of ownership of a vessel or aircraft from a natural or legal person established in the reporting Member State and registered in the national ships or aircraft register to a natural or legal person established in another Member State. This transaction shall be treated as a dispatch.
If the vessel or aircraft is new the dispatch is recorded in the Member State of construction.’
(b)
Paragraph 4 is replaced by the following:
‘4. Provided that there is no conflict with other Community legislation, national authorities shall have access to all available additional data sources other than those of the Intrastat System or the Single Administrative Document for customs or fiscal purposes, such as information from national ships and aircraft registers which may be required to identify the transfer of ownership of such goods.’
4.
In Article 21 paragraph 4 is replaced by the following:
‘4. Provided that there is no conflict with other Community legislation, national authorities shall have access to all available additional data sources other than those of the Intrastat System or the Single Administrative Document for customs or fiscal purposes such as information on declarations of national registered vessels on sea products landed in other Member States.’
5.
In Article 22 paragraph 4 is replaced by the following:
‘4. Provided that there is no conflict with other Community legislation, national authorities shall have access to all available additional data sources other than those of the Intrastat System or the Single Administrative Document for customs or fiscal purposes which they may need to apply this Article.’
6.
Article 23 is amended as follows:
(a)
The title is replaced by the following:
‘Electricity and gas’.
(b)
Paragraphs 1 and 2 are replaced by the following:
‘1. Statistics relating to the trading of goods between Member States shall cover dispatches and arrivals of electricity and natural gas.
2. Provided that there is no conflict with other Community legislation, national authorities shall have access to all available additional data sources other than those of the Intrastat System or the Single Administrative Document for customs or fiscal purposes which they may need to transmit data referred to in paragraph 1 to the Commission (Eurostat). National authorities may require that information is provided directly by operators established in the reporting Member State which own or operate the national transmission network for electricity or natural gas.’
7.
In Annex I, point (h) is replaced by the following:
‘(h)
Goods for and after repair and the incorporated replacement parts. A repair entails the restoration of goods to their original function or condition. The objective of the operation is simply to maintain the goods in working order; this may involve some rebuilding or enhancements but does not change the nature of the goods in any way.’
8.
Annex II is deleted.
Article 2
This Regulation shall enter into force on the twentieth day following its publication in the Official Journal of the European Union.
This Regulation shall apply from 1 January 2006.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 24 November 2005.
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****
( 1 ) OJ NO L 148 , 28 . 6 . 1968 , P . 13 .
( 2 ) OJ NO L 303 , 28 . 11 . 1977 , P . 1 .
( 3 ) OJ NO L 106 , 12 . 5 . 1971 , P . 1 .
( 4 ) OJ NO L 67 , 15 . 3 . 1976 , P . 1 .
( 5 ) OJ NO L 52 , 24 . 2 . 1977 , P . 19 .
( 6 ) OJ NO L 277 , 29 . 10 . 1977 , P . 35 .
( 7 ) OJ NO L 58 , 3 . 3 . 1977 , P . 16 .
( 8 ) OJ NO L 110 , 30 . 4 . 1977 , P . 6 .
( 9 ) OJ NO L 317 , 12 . 12 . 1977 , P . 1 .
COMMISSION REGULATION ( EEC ) NO 2772/77
OF 14 DECEMBER 1977
AMENDING REGULATIONS ( EEC ) NO 368/77 , ( EEC ) NO 443/77 AND ( EEC ) NO 938/77 AS REGARDS THE APPLICATION OF MONETARY COMPENSATORY AMOUNTS TO CERTAIN PRODUCTS CONTAINING DENATURED MILK POWDER
THE COMMISSION OF THE EUROPEAN
COMMUNITIES ,
HAVING REGARD TO THE TREATY ESTABLISHING THE EUROPEAN ECONOMIC COMMUNITY ,
HAVING REGARD TO COUNCIL REGULATION ( EEC ) NO 804/68 OF 27 JUNE 1968 ON THE COMMON ORGANIZATION OF THE MARKET IN MILK AND MILK PRODUCTS ( 1 ), AS LAST AMENDED BY REGULATION ( EEC ) NO 2560/77 ( 2 ), AND IN PARTICULAR ARTICLE 7 ( 5 ) THEREOF ,
HAVING REGARD TO COUNCIL REGULATION ( EEC ) NO 974/71 OF 12 MAY 1971 ON CERTAIN MEASURES OF CONJUNCTURAL POLICY TO BE TAKEN IN AGRICULTURE FOLLOWING THE TEMPORARY WIDENING OF THE MARGINS OF FLUCTUATION FOR THE CURRENCIES OF CERTAIN MEMBER STATES ( 3 ), AS LAST AMENDED BY REGULATION ( EEC ) NO 557/76 ( 4 ), AND IN PARTICULAR ARTICLE 6 THEREOF ,
WHEREAS ARTICLE 19 OF COMMISSION REGULATION ( EEC ) NO 368/77 OF 23 FEBRUARY 1977 ON THE SALE BY TENDER OF SKIMMED-MILK POWDER FOR USE IN FEED FOR PIGS AND POULTRY ( 5 ), AS LAST AMENDED BY REGULATION ( EEC ) NO 2378/77 ( 6 ), PROVIDES THAT A COEFFICIENT IS TO APPLY TO THE COMPENSATORY AMOUNTS FIXED FOR CERTAIN PRODUCTS CONTAINING DENATURED MILK POWDER ; WHEREAS , PURSUANT TO ARTICLE 9 ( C ) OF COMMISSION REGULATION ( EEC ) NO 443/77 OF 2 MARCH 1977 ON THE SALE AT A FIXED PRICE OF SKIMMED-MILK POWDER FOR USE IN FEED FOR PIGS AND POULTRY AND AMENDING REGULATIONS ( EEC ) NO 1687/76 AND ( EEC ) NO 368/77 ( 7 ), THAT PROVISION APPLIES ALSO TO PRODUCTS DENATURED UNDER THE SAID REGULATION ( EEC ) NO 443/77 ; WHEREAS THE DENATURED PRODUCTS IN QUESTION FALL WITHIN SUBHEADING 23.07 B OF THE COMMON CUSTOMS TARIFF ; WHEREAS , FOR REASONS OF CLARITY , ARTICLE 19 OF REGULATION ( EEC ) NO 368/77 SHOULD STATE EXPRESSLY THAT THE REFERENCE TO SUBHEADING 04.02 A II B ) 1 APPLIES ONLY TO SKIMMED-MILK POWDER IN ITS NATURAL STATE ;
WHEREAS THIS AMENDMENT SHOULD BE TAKEN INTO ACCOUNT IN NOTE ( 2 ) TO PART 5 OF ANNEX I TO COMMISSION REGULATION ( EEC ) NO 938/77 OF 29 APRIL 1977 FIXING THE MONETARY COMPENSATORY AMOUNTS AND CERTAIN RATES FOR THEIR APPLICATION ( 8 ), AS LAST AMENDED BY REGULATION ( EEC ) NO 2730/77 ( 9 );
WHEREAS 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
ARTICLE 19 OF REGULATION ( EEC ) NO 368/77 IS HEREBY AMENDED TO READ AS FOLLOWS :
' ARTICLE 19
1 . THE AID PROVIDED FOR IN ARTICLE 10 OF REGULATION ( EEC ) NO 804/68 SHALL NOT BE GRANTED TO SKIMMED-MILK POWDER SOLD UNDER THIS REGULATION .
2 . IN THE CASE OF SKIMMED-MILK POWDER SOLD UNDER THIS REGULATION AND :
- DISPATCHED TO ANOTHER MEMBER STATE IN ITS NATURAL STATE , THE MONETARY COMPENSATORY AMOUNT FIXED PURSUANT TO REGULATION ( EEC ) NO 974/71 SHALL , IN THE CASE OF PRODUCTS FALLING WITHIN SUBHEADING 04.02 A II B ) 1 OF THE COMMON CUSTOMS TARIFF , BE MULTIPLIED BY 0.15 ,
- DISPATCHED TO ANOTHER MEMBER STATE OR EXPORTED TO NON-MEMBER COUNTRIES EITHER AFTER DENATURING OR AFTER INCORPORATION IN COMPOUND FEEDINGSTUFFS , THE MONETARY COMPENSATORY AMOUNTS FIXED PURSUANT TO REGULATION ( EEC ) NO 974/71 SHALL , IN THE CASE OF PRODUCTS FALLING WITHIN SUBHEADINGS :
- 23.07 B I A ) 3 ,
- 23.07 B I A ) 4 ,
- 23.07 B I B ) 3 ,
- 23.07 B I C ) 3 ,
- 23.07 B II ,
OF THE COMMON CUSTOMS TARIFF , BE MULTIPLIED BY 0.25 . '
ARTICLE 2
THE THIRD PARAGRAPH OF NOTE ( 2 ) TO PART 5 OF ANNEX I TO REGULATION ( EEC ) NO 938/77 IS HEREBY AMENDED TO READ AS FOLLOWS :
' IN THE CASE OF SKIMMED-MILK POWDER SOLD UNDER REGULATION ( EEC ) NO 368/77 ( OJ NO L 52 , 24 . 2 . 1977 ) AND REGULATION ( EEC ) NO 443/77 ( OJ NO L 58 , 3 . 3 . 1977 ) AND DISPATCHED IN ITS NATURAL STATE TO ANOTHER MEMBER STATE , THE AMOUNT INDICATED SHALL BE MULTIPLIED BY THE COEFFICIENT 0.15 . '
ARTICLE 3
THIS REGULATION SHALL ENTER INTO FORCE ON 1 JANUARY 1978 .
THIS REGULATION SHALL BE BINDING IN ITS ENTIRETY AND DIRECTLY APPLICABLE IN ALL MEMBER STATES .
DONE AT BRUSSELS , 14 DECEMBER 1977 .
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*****
COMMISSION DECISION
of 17 December 1986
prohibiting an aid consisting of a subsidy on the sale on animal feed granted by the region of Abruzzi
(Only the Italian text is authentic)
(87/417/EEC)
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Economic Community, and in particular Article 93 (2) thereof,
Having regard to Council Regulation (EEC) No 1117/78 of 22 May 1978 on the comon organization of the market in dried fodder (1), as last amended by Regulation (EEC) No 1985/86 (2), and in particular Article 9 thereof, and the corresponding provisions of the other Regulations on the common organization of the market in agricultural products,
Having invited the parties concerned (3), pursuant to Article 93 of the EEC Treaty, to submit their comments and having regard to those comments,
Whereas:
I
By letter dated 17 June 1985 the Italian Government notified, in accordance with Article 93 (3) of the EEC Treaty, Law No 25 of the region of Abruzzi of 11 April 1985 on the further amendment of Regional Law No 31 of 3 June 1982. Law No 25 amends in particular Article 66 of Regional Law No 31/82 of 3 June 1982, as amended and supplemented by Regional Laws Nos 7/83 of 25 January 1983 and 66/83 of 15 September 1983.
Article 66 provided - with a view to the implementation of a pilot project to encourage farmers in the region to increase permanently the profitability of their land under fodder - for the grant of degressive aids, subject to a time limit, to stockfarmers in the region for the sale of animal feed manufactured from fodder produced there. The aid granted by the region consisted of:
- subsidies of up to 10 % of the market value of each feed unit produced, and
- subsidies of up to 20 % of the same value for farmers in mountain or less-favoured areas.
In addition, agricultural producers in the region were required to have a minimum participation of 80 % in the assets and management of the undertakings producing animal feed in the region. Those undertakings were required to use exclusively, and in certain conditions as a priority, fodder produced in the region.
In view of its promotional objective, the aid was regarded as being compatible with the common market under Article 92 (3) (c) of the Treaty, for the period 1982 to 1985. The Commission informed the Italian Government to this effect by letter dated 4 November 1982.
Article 1 of Law No 25/85 amended Article 66 of Law No 31/82, as supplemented and amended, by providing that cooperatives could in future use the fodder available in the region without being required to do so exclusively or as a priority. Article 3 of that Law extended the aid arrangements for 1986 and 1987.
II
After having considered Law No 225/85 the Commission informed the Italian Government, by letter of 19 February 1986, among other things that it was initiating the procedure provided for in Article 93 (2) of the EEC Treaty in respect of the measure concerned.
The Commission notified the Italian Government that the period taken into consideration in 1982 had expired and that an increase in the production of fodder and animal feed has been recorded in the region during the period 1982 to 1985; the measure therefore appeared to have achieved its aim. The Commission considered, moreover, that there was no justification for extending the period for two years since animal feed requirements in the region seemed to be an adequate incentive for encouraging the production of basic fodder products. The Commission pointed out, moreover, that this situation had even led the regional authorities to alter the criteria of Article 66 of Law No 31/82 so that cooperatives receiving the aid were no longer required to buy their raw materials exclusively and as a priority in the region as a means of encouraging the production of fodder there.
In view of the foregoing, the Commission took the view that the continued grant of aid for the purchase of animal feed could no longer qualify for the exemption provided for in Article 92 (3) (c) of the Treaty since the aid was now an operating aid that had no lasting effect on the development of the sector concerned.
The Commission therefore gave notice to the Italian Government, the other Member States and parties concerned other than the Member States to submit their comments, and received comments from them.
III
By letter dated 13 May 1986 the Italian Government replied to the Commission's letter of 19 February 1986, stressing in particular that:
- the aid in question had been granted degressively for three years,
- the region of Abruzzi had endeavoured to keep it a pilot project,
- the measure had been slow in getting under way and, as a result, had only begun to show a return towards the end of 1985, and
- it had therefore been necessary to keep the provisions in force for 1986 and 1987.
IV
1. The Italian authorities have failed to fulfil their obligation under Article 93 (3) of the EEC Treaty, firstly, by neglecting to notify Law No 25/85 at the draft stage and, secondly, by bringing it into force before the Commission had an opportunity of expressing its view on it.
2. Article 66 of Law No 31/82, as amended and supplemented, provided for aid to be granted by the region during the period 1982 to 1985 for the implementation of a pilot project to encourage farmers to increase permanently the profitability of their land under fodder in Abruzzi. To that end the region provided for the grant of degressive aids, subject to a time limit, for the sale of animal feed by stockfarmers in the region who were members of cooperatives producing animal feed from fodder produced in the region.
On 4 November 1982, the Commission delivered a favourable opinion in respect of the aid, bearing in mind its status as a pilot project subject to a time limit and involving a degressive amount.
The amendments provided for in Law 25/85 of 11 April 1985, consisting of the deletion in Article 66 of the requirement that cooperatives producing animal feed buy their fodder exclusively and, under certain conditions, as a priority in the region, and for the extension of the scheme for 1986 and 1987, are such that the measure can no longer be regarded as a pilot project. The aid has already been granted for four years, from 1982 to 1985, and during that period has led to an increase in the levels of fodder and animal feed production. According to the information provided by the Italian authorities, the quantity of fodder supplied for processing by producers who are members of cooperatives was approximately 119 000 quintals in 1983 and approximately 245 000 quintals in 1986, while animal feed production in 1983 amounted to around 521 000 quintals and in 1986 to approximately 1 million quintals.
Furthermore, the amendment of Article 66 consisting of the deletion of the clause that all fodder purchased must be produced in the region also indicates that the aims of the aid have changed.
3. The measure is therefore an operating aid for stockfarmers in the region, who by virtue of this subsidy can buy animal feed at more advantageous prices than if there were no aid. It therefore distorts competition between stockfarmers in Abruzzi and those in other Member State.
The lowering of production costs made possible by this aid, and the consequent reduction in selling prices, helps create new market outlets, or at least maintain existing ones with the result that stockfarmers in Abruzzi will be encouraged to increase their output; this will enable them, firstly - by virtue of, among other things, economies of scale - to reduce their costs and, secondly, to increase their competitiveness on Italian markets and the markets of the other Member States. Consequently, the aid - the impact of which is directly linked with the quantities of feed produced and sold to stockfarmers - puts economic operators in Abruzzi in these sectors in a more favourable competitive position on the Italian and Community markets. Livestock producers, should they be unable to sell their entire production on their domestic markets, would channel it towards the markets of the other Member States where they could offer it at a lower price than they could charge without the benefit of the aid. A cut of up to 20 % in the price of animal feed implies, in so far as the price of animal products, in poultry for example, is concerned, a reduction of around 10 to 15 % in production costs. In the poultry sector, feed costs account for around 80 % of farm production costs. An aid that reduces their impact represents, therefore, a considerable economic advantage on a surplus market such as that in animal products.
For these reasons, the aid is liable to affect trade between Member States, with stockfarmers being encouraged to increase their output on account of the drop in their production costs.
4. In a situation where all of this aid was not passed on to stockfarmers in full, the subsidy would also constitute an operating aid for undertakings manufacturing animal feed. The latter, by receiving aid calculated on the basis of the number of fodder units produced and sold, are encouraged to increase their production in order to benefit from the economies of scale. The increase in the quantity of feed produced in Abruzzi reduces by an equal amount imports from other Member States. In 1985 feed imports amounted to around 320 000 tonnes, i. e. around 3,2 % of total Italian feed production. For this reason, here too, the measure distorts competition between producers of animal feed in Abruzzi and those in other Member States, and affects intra-Community trade.
5. The measures in question consequently meet the criteria of Article 92 (1) of the Treaty, which provides that aids that meet the criteria it sets out are incompatible in principle with the common market.
6. The aids in question clearly do not qualify for any of the exemptions from such incompatibility provided for in Article 92 (2). Those provided for in paragraph 3 of that Article specify objectives pursued in the interest of the Community and not only in that of particular sectors of the national economy. The exemptions must be interpreted strictly, especially when any regional of sectoral aid programme is being examined.
The exemptions may be granted in particular only where the Commission can show that the aid is necessary for attaining one of the objectives referred to in those provisions. To grant the benefit of the exemptions to aid which does not involve any such offsetting advantage would amount to authorizing the undermining of trade between Member States and the distortion of competition without any justification in the Community interest, and, at the same time, to unwarranted advantages for some Member States.
In the case under consideration, examination of the aid in question does not disclose the existence of any such offsetting advantage. The Italian Government has been unable to provide, and the Commission to detect, any evidence to show that the aid concerned meets the requirements for the application of one of the exemptions provided for in Article 92 (3) of the Treaty.
It is not a matter of measures to promote the execution of an important project of common European interest within the meaning of Article 92 (3) (b) given that, by virtue of their potential effects on trade, they are contrary to the common interest.
The measure has already been applied for four years, from 1982 to 1985, and has achieved its promotional objective, adopted by the Commission in 1982, by resulting in an increase in the levels of fodder and feed production.
For that reason it seem unjustified to prolong the measure until the end of 1987 since, by ceasing to be a promotional aid, it is now a simple operating aid which can no longer bring about a lasting improvement in the conditions in which the recipient undertakings are operating.
Accordingly, the aid to be regarded as an operating aid for the undertakings concerned represents a type of aid to which the Commission has in principle always been opposed, by virtue of the fact that its grant is not made subject to conditions that would qualify it for one of the exemptions provided for in Article 92 (3) (a) and (c).
The aid in question does not therefore meet the re- quirements to qualify for one of the exemptions under Article 92 of the Treaty and must be regarded as being incompatible with the common market; the Italian authorities must take the measures necessary to ensure that the aid is not granted, and that Articles 1 and 3 of Regional Law No 25 of 11 April 1985 concerning the aid which is the subject of the complaint are abolished not later than 31 March 1987, a period that should allow the Italian authorities to take the necessary measures. This Decision is without prejudice to any action the Commission may take to recover the abovementioned aid from the recipients, and in respect of the financing of the common agricultural policy by the European Agricultural Guidance and Guarantee Fund, where it is shown that the aid was granted before the completion of the review procedure provided for in Article 93 (2) of the EEC Treaty,
HAS ADOPTED THIS DECISION:
Article 1
1. The aid consisting of a subsidy of 10 % and 20 % of the value of a fodder unit, provided for in respect of 1986 and 1987 by Article 66 of Law No 31 of the region of Abruzzi of 3 June 1982, which is the framework law for the development of agriculture in Abruzzi for 1982 to 1985, as amended and supplemented by Regional Laws Nos 7/83 of 25 January 1983 and 66/83 of 15 September 1983, as it results from the amendments introduced by Articles 1 and 3 of Regional Law No 25 of 11 April 1985, is incompatible with the common market by virtue of Article 92 of the EEC Treaty.
2. The aid concerned may not be granted and the relevant provisions of Articles 1 and 3 of Law No 25 of 11 April 1985 must be deleted by 31 March 1987 at the latest.
3. The Italian Government shall inform the Commission, within two months from the date of notification of this Decision, of the measures it has taken to comply therewith.
Article 2
This Decision is addressed to the Italian Republic.
Done at Brussels, 17 December 1986.
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Commission Regulation (EC) No 652/2000
of 28 March 2000
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,
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 March 2000.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 28 March 2000.
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COMMISSION REGULATION (EC) No 1784/2004
of 14 October 2004
concerning tenders notified in response to the invitation to tender for the export of oats issued in Regulation (EC) No 1565/2004
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 7 thereof,
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 (2), and in particular Article 7 thereof,
Having regard to Commission Regulation (EC) No 1565/2004 of 3 September 2004 on a special intervention measure for cereals in Finland and Sweden for the 2004/2005 marketing year (3),
Whereas:
(1)
An invitation to tender for the refund for the export of oats produced in Finland and Sweden for export from Finland and Sweden to all third countries, with the exception of Bulgaria, Norway, Romania and Switzerland was opened pursuant to Regulation (EC) No 1565/2004.
(2)
On the basis of the criteria laid down in Article 1 of Regulation (EC) No 1501/95, a maximum refund should not be fixed.
(3)
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 8 to 14 October 2004 in response to the invitation to tender for the refund for the export of oats issued in Regulation (EC) No 1565/2004.
Article 2
This Regulation shall enter into force on 15 October 2004.
This Regulation shall be binding in its entirety and directly applicable in all Member States
Done at Brussels, 14 October 2004.
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COMMISSION REGULATION (EC) No 1382/2004
of 29 July 2004
fixing the maximum export refund for butter in the framework of the standing invitation to tender provided for in Regulation (EC) No 581/2004
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 the third subparagraph of Article 31(3) thereof,
Whereas:
(1)
Commission Regulation (EC) No 581/2004 of 26 March 2004 opening a standing invitation to tender for export refunds concerning certain types of butter (2) provides for a permanent tender.
(2)
Pursuant to Article 5 of Commission Regulation (EC) No 580/2004 of 26 March 2004 establishing a tender procedure concerning export refunds for certain milk products (3) and following an examination of the tenders submitted in response to the invitation to tender, it is appropriate to fix a maximum export refund for the tendering period ending on 28 July 2004.
(3)
The Management Committee for Milk and Milk Products has not delivered an opinion within the time limit set by its chairman,
HAS ADOPTED THIS REGULATION:
Article 1
For the permanent tender opened by Regulation (EC) No 581/2004, for the tendering period ending on 28 July 2004, the maximum amount of refund for the products referred to in Article 1(1) of that Regulation shall be as shown in the Annex to this Regulation.
Article 2
This Regulation shall enter into force on 30 July 2004.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 29 July 2004.
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REGULATION (EEC) No 1353/75 OF THE COMMISSION of 28 May 1975 amending Regulation (EEC) No 1726/70 on the procedure for granting the premium for leaf tobacco as regards the event giving entitlement to the premium
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 (1) of 21 April 1970 on the common organization of the market in raw tobacco, as last amended by the Act (2) concerning the conditions of accession and the adjustments to the Treaties, and in particular Article 3 (3) thereof;
Whereas, according to Article 4 (2) of Council Regulation (EEC) No 1134/68 (3) of 30 July 1968 laying down rules for the implementation of Regulation (EEC) No 653/68 (4) on conditions for alterations to the value of the unit of account used for the common agricultural policy, sums owed by a Member State or a duly authorized body, expressed in national currency and representing amounts fixed in units of account, shall be paid on the basis of the relationship between the unit of account and the national currency which obtained at the time when the transaction or part transaction was carried out;
Whereas, according to Article 6 of the same Regulation, the time when a transaction is carried out shall be considered as being the date on which occurs the event, as defined by Community rules or, in the absence of and pending adoption of such rules, by the rules of the Member State concerned, which gives entitlement to the amount involved in the transaction;
Whereas Article 6 (1) of Commission Regulation (EEC) 1726/70 (5) of 25 August 1970 on the procedure for granting the premium for leaf tobacco, as last amended by Regulation (EEC) No 903/74 (6), stipulates that the right to the premium shall accrue as soon as the tobacco leaves the place in which it was under supervision ; whereas, consequently, the amount involved in the transaction immediately becomes due and payable within the meaning of Article 6 of Regulation (EEC) No 1134/68 ; whereas it is therefore desirable to adopt, for the calculation of the amount of this premium in national currency, the conversion rate obtaining on the date when the tobacco leaves the place where it was under supervision;
Whereas the measures provided for in this Regulation are in accordance with the Opinion of the Management Committee for Tobacco,
HAS ADOPTED THIS REGULATION:
Article 1
The following text shall be added to Article 6 (1) of Regulation (EEC) No 1726/70:
"The event giving entitlement to the premium, within the meaning of Article 6 of Regulation (EEC) No 1134/68, shall be considered to have occurred on that date."
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, 28 May 1975.
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COMMISSION REGULATION (EC) No 445/2006
of 16 March 2006
fixing the representative prices and the additional import duties for molasses in the sugar sector applicable from 17 March 2006
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 market in sugar (1), and in particular Article 24(4) thereof,
Whereas:
(1)
Commission Regulation (EC) No 1422/95 of 23 June 1995 laying down detailed rules of application for imports of molasses in the sugar sector and amending Regulation (EEC) No 785/68 (2), stipulates that the cif import price for molasses established in accordance with Commission Regulation (EEC) No 785/68 (3), is to be considered the representative price. That price is fixed for the standard quality defined in Article 1 of Regulation (EEC) No 785/68.
(2)
For the purpose of fixing the representative prices, account must be taken of all the information provided for in Article 3 of Regulation (EEC) No 785/68, except in the cases provided for in Article 4 of that Regulation and those prices should be fixed, where appropriate, in accordance with the method provided for in Article 7 of that Regulation.
(3)
Prices not referring to the standard quality should be adjusted upwards or downwards, according to the quality of the molasses offered, in accordance with Article 6 of Regulation (EEC) No 785/68.
(4)
Where there is a difference between the trigger price for the product concerned and the representative price, additional import duties should be fixed under the terms laid down in Article 3 of Regulation (EC) No 1422/95. Should the import duties be suspended pursuant to Article 5 of Regulation (EC) No 1422/95, specific amounts for these duties should be fixed.
(5)
The representative prices and additional import duties for the products concerned should be fixed in accordance with Articles 1(2) and 3(1) of Regulation (EC) No 1422/95.
(6)
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
The representative prices and the additional duties applying to imports of the products referred to in Article 1 of Regulation (EC) No 1422/95 are fixed in the Annex hereto.
Article 2
This Regulation shall enter into force on 17 March 2006.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 16 March 2006.
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COMMISSION REGULATION (EC) No 2514/96 of 23 December 1996 laying down for 1997 detailed rules for the application of a tariff quota for cows and heifers other than for slaughter of certain mountain breeds originating in certain third countries
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Council Regulation (EC) No 3066/95 of 22 December 1995 establishing certain concessions in the form of Community tariff quotas for certain agricultural products and providing for the adjustment, as an autonomous and transitional measure, of certain agricultural concessions provided for in the Europe Agreements to take account of the Agreement on Agriculture concluded during the Uruguay Round Multilateral Trade Negotiations (1), as amended by Regulation (EC) No 2490/96 (2), and in particular Article 8 thereof,
Having regard to Council Regulation (EC) No 1926/96 of 7 October 1996 establishing certain concessions in the form of Community tariff quotas for certain agricultural products and providing for the adjustment, as an autonomous and transitional measure, of certain agricultural concessions provided for in the agreements on free trade and trade-related matters with Estonia, Latvia and Lithuania, to take account of the Agreement on Agriculture concluded during the Uruguay Round Multilateral Trade Negotiations (3), and in particular Article 5 thereof,
Whereas Regulations (EC) No 3066/96 and (EC) No 1926/96 provide for the opening for 1997 of a tariff quota of 5 000 cows and heifers of certain mountain breeds originating in Hungary, Poland, the Czech Republic, Slovakia, Bulgaria, Romania, Lithuania, Latvia and Estonia at customs duty of 6 % ad valorem; whereas measures for administering the importing of these animals should be laid down;
Whereas experience has shown that limiting imports may lead to speculative import licence applications; whereas, in order to ensure that the planned measures function properly, the greater part of the quantities available should be set aside for 'traditional` importers of cows and heifers of certain mountain breeds; whereas, in order to avoid forcing trade relations in this product group into an excessively rigid mould, a second tranche should be made available to traders who are able to show that they are engaged in genuine trade of some scale with third countries; whereas, in this connection and in order to ensure efficient management, the traders concerned must be required to have imported at least 15 head in 1996; whereas a batch of 15 animals in principle constitutes a normal load and whereas experience shows that the sale or purchase of a single batch is a minimum requirement for a transaction to be considered genuine and viable; whereas verification of these criteria requires all applications from the same trader to be submitted in the same Member State;
Whereas in order to prevent speculation, traders no longer engaged in trade in beef and veal at 1 January 1997 should be denied access to the quota;
Whereas provision should be made for the arrangements to be administered by means of import licences; whereas, to that end, where necessary notwithstanding certain provisions of Commission Regulation (EEC) No 3719/88 of 16 November 1988 laying down common detailed rules for the application of the system of import and export licences and advance fixing certificates for agricultural products (4), as last amended by Regulation (EC) No 2402/96 (5), and Commission Regulation (EC) No 1445/95 of 26 June 1995 on rules of application for import and export licences in the beef and veal sector and repealing Regulation (EEC) No 2377/80 (6), as last amended by Regulation (EC) No 2051/96 (7), detailed rules for the submission of applications and the information which should appear in applications and licences should be laid down; whereas, moreover, provision should be made for the licences to be issued after a period of consideration and subject, where necessary, to the application of a single percentage reduction;
Whereas experience has shown that importers do not always inform the competent authorities which issued the import licences of the number and origin of animals imported as part of a quota; whereas this information is important for assessing the market situation; whereas a security relating to communication of that information should be provided for;
Whereas Article 82 of Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code (8), as last amended by the Act of Accession of Austria, Finland and Sweden, provides for customs supervision of goods released for free circulation at a reduced rate on account of their end-use; whereas the animals imported should be monitored to ensure they are not slaughtered during a certain period; whereas a security should be required to ensure compliance with the requirement for the animals not to be slaughtered;
Whereas the Management Committee for Beef and Veal has not delivered an opinion within the time limit set by its chairman,
HAS ADOPTED THIS REGULATION:
Article 1
1. For 1997, the following tariff quota is hereby opened for animals originating in the third countries listed in Annex I:
TABLE
2. For the purposes of this Regulation, the animals referred to in paragraph 1 shall be deemed to be not for slaughter where they are not slaughtered within four months of the date of acceptance of the declaration of release for free circulation.
Derogations may, however, be granted in duly proven cases of force majeure.
Article 2
1. The quota referred to in Article 1 (1) shall be divided into two parts of 80 %, i.e. 4 000 head, and 20 %, i.e. 1 000 head.
(a) The first part, equal to 80 %, shall be allocated among:
- importers in the Community as constituted on 31 December 1994 who can furnish proof of having imported animals covered by the import quotas governed by the Regulations listed in Annex III in the period 1 July 1993 to 30 June 1996, and
- importers in the new Member States who can furnish proof of having imported, into the Member State where they are established, animals falling within the CN codes referred to in Annex II and CN code 0102 90 79 during the period 1 July 1993 to 31 December 1994 from countries which were for them third countries on 31 December 1994, or animals covered by import quotas governed by the Regulations listed in point (b) of Annex III during the period 1 January 1995 to 30 June 1996.
(b) The second part, equal to 20 %, shall be allocated among importers who can furnish proof of having imported during 1996 at least 15 live bovine animals falling within CN code 0102 from third countries.
Importers must be registered for VAT purposes in a Member State.
2. The first part of the quota shall be allocated among applicant importers in proportion to their imports of animals within the meaning of paragraph 1 (a) during the period 1 July 1993 to 30 June 1996.
3. The second part of the quota shall be allocated among applicant importers as referred to in paragraph (1) (b) in proportion to the quantities applied for. Import right applications must relate to:
- at least 15 head, and
- no more than 50 head.
Where licence applications relate to larger quantities, they shall only be given consideration subject to those ceilings.
4. Proof of import shall be provided exclusively by means of the customs document of release for free circulation duly stamped by the customs authorities.
Member States may accept copies of the abovementioned documents duly certified by the issuing authority the applicant can prove to the satisfaction of the competent authority that he was not able to obtain the original document.
Article 3
1. Importers who on 1 January 1997 were no longer engaged in any activity in the beef and veal sector shall not qualify for an allocation pursuant to Article 2 (1) (a).
2. Any company formed by the merger of companies each having rights under Article 2 (2) shall benefit from the same rights as the companies from which it was formed.
Article 4
1. Applications for the right to import may be presented only in the Member State in which the applicant is registered in the national VAT register.
2. Only one application may be lodged by each applicant. Applications shall relate to one part of the quota only.
Where an applicant lodges more than one application, all applications from that person shall be inadmissible.
3. For the purposes of Article 2 (1) (a), importers shall present the applications for the right to import to the competent authorities together with the proof referred to in Article 2 (4) by 27 July 1997 at the latest.
After verification of the documents presented, Member States shall forward to the Commission, by 9 February 1997 at the latest, the list of importers who meet the acceptance conditions, showing in particular their names and addresses and the number of eligible animals imported during the period referred to in Article 2 (2).
4. For the purposes of Article 2 (1) (b), applications for the right to import must be lodged by importers by 27 January 1997 at the latest, together with the proof referred to in Article 2 (4).
After verification of the documents presented, Member States shall forward to the Commission, by 9 February 1997 at the latest, the list of applicants and the quantities requested.
5. All notifications, including notifications of nil applications, shall be made by telex or fax, drawn up on the basis of the models in Annexes IV and V in the case where applications have been lodged.
Article 5
1. The Commission shall decide to what extent applications may be accepted.
2. As regards applications referred to in Article 4 (4), if the quantities in respect of which applications are made exceed the quantities available, the Commission shall reduce the quantities applied for by a fixed percentage.
If the reduction referred to in the preceding subparagraph results in a quantity of less than 15 head per application, the allocation shall be made by drawing lots, by batches of 15 head, by the Member States concerned. If the remaining quantity is less than 15 head, that quantity shall constitute a single batch.
Article 6
1. Imports of the quantities allocated shall be subject to presentation of an import licence.
2. Licence applications may be lodged only with the competent authorities in the Member State where the applicant is registered in the VAT register.
3. Upon notification of allocation from the Commission, import licences shall be issued at the earliest opportunity at the request and in the name of importers who have obtained the right to import.
4. Import licences shall be valid for 90 days from their date of issue. However, they shall expire on 31 December 1997 at the latest.
5. Licences issued shall be valid throughout the Community.
6. Without prejudice to this Regulation, Regulations (EEC) No 3719/88 and (EC) No 1445/95 shall apply.
However, Article 8 (4) and the second subparagraph of Article 14 (3) of Regulation (EEC) No 3719/88 shall not apply.
Article 7
1. Checks to ensure that the animals imported are not slaughtered in the four months following their release into free circulation shall be conducted in accordance with Article 82 of Regulation (EEC) No 2913/92.
2. Without prejudice to Regulation (EEC) No 2913/92, importers shall lodge a security of ECU 1 280 per tonne with the competent customs authorities to ensure compliance with the obligation not to slaughter the animals.
Such securities shall be released immediately where proof is furnished to the customs authorities concerned to the effect that the animals:
(a) have not been slaughtered within four months of the date of their release for free circulation, or
(b) have been slaughtered within that time for reasons of force majeure or for health reasons or have died as a result of disease or an accident.
Article 8
Licence applications and licences shall contain the following entries:
(a) in section 8, the indication of the countries listed in Annex I; licences shall carry with them an obligation to import from one or more of the countries indicated;
(b) in section 16, the CN codes set out in Annex II;
(c) in section 20, one of the following:
- Razas de montaña [Reglamento (CE) n° 2514/96]
- Bjergracer (forordning (EF) nr. 2514/96)
- Höhenrassen (Verordnung (EG) Nr. 2514/96)
- Ïñåóßâéåò öõëÝò [Êáíïíéóìüò (ÅÊ) áñéè. 2514/96]
- Mountain breeds (Regulation (EC) No 2514/96)
- Races de montagne [règlement (CE) n° 2514/96]
- Razze di montagna [regolamento (CE) n. 2514/96]
- Bergrassen (Verordening (EG) nr. 2514/96)
- Raças de montanha [Regulamento (CE) nº 2514/96]
- Vuoristorotuja [Asetus (EY) N:o 2514/96]
- Bergraser (förordning (EG) nr 2514/96).
Article 9
No later than three weeks after the importation of the animals specified in this Regulation, the importer shall inform the competent authority which issued the import licence of the number and origin of the animals. That authority shall communicate the information in question to the Commission at the beginning of each month.
Article 10
1. Upon submission of a licence application, importers shall establish a security to cover the import licence of ECU 25 per head in derogation from Article 4 of Regulation (EC) No 1445/95 and a security of ECU 2 per head to cover the communication of the information referred to in Article 9 of this Regulation.
2. The security relating to the communication shall be released if the information is communicated to the competent authority within the period specified in Article 9 for animals covered by that communication. If no communication is made, the security shall be forfeited.
A decision to release this security shall be taken simultaneously with the decision to release the security covering the import licence.
Article 11
The animals shall qualify for the duties referred to in Article 1 on presentation of an EUR 1 movement certificate issued by the exporting country in accordance with Protocol 4 annexed to the Europe Agreements and Protocol 3 annexed to the free-trade Agreements.
Article 12
This Regulation shall enter into force on the third day following its publication in the Official Journal of the European Communities.
It shall apply from 1 January 1997.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 23 December 1996.
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COMMISSION REGULATION (EEC) No 2927/93 of 22 October 1993 concerning the stopping of fishing for saithe 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 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 stocks, the total allowable catches for 1993 and certain conditions under which they may be fished (3), as amended by Regulation (EEC) No 927/93 (4), provides for saithe 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 saithe in the waters of ICES divisions II a (EC zone), III a, III b, c, d (EC zone) and IV 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 10 October 1993; whereas it is therefore necessary to abide by that date,
HAS ADOPTED THIS REGULATION:
Article 1
Catches of saithe in the waters of ICES divisions II a (EC zone), III a, III b, c, d (EC zone) and IV 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 saithe in the waters of ICES divisions II a (EC zone), III a, III b, c, d (EC zone) and IV 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 that of its publication in the Official Journal of the European Communities.
It shall apply with effect from 10 October 1993.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 22 October 1993.
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Commission Regulation (EC) No 1825/2000
of 25 August 2000
laying down detailed rules for the application of Regulation (EC) No 1760/2000 of the European Parliament and of the Council as regards the labelling of beef and beef products
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Regulation (EC) No 1760/2000 of the European Parliament and of the Council of 17 July 2000 establishing a system for the identification and registration of bovine animals and regarding the labelling of beef and beef products and repealing Council Regulation (EC) No 820/97(1), and in particular Article 19 thereof,
Whereas:
(1) Detailed rules for the application of Regulation (EC) No 1760/2000 should be laid down, in particular as regards sales between Member States, in order that the labelling system will not lead to distortions of trade on the beef and veal market.
(2) In order to ensure traceability, it is necessary, in the context of both the compulsory and voluntary systems of beef labelling, that operators and organisations keep an identification system and a comprehensive registration system for beef, at each of its various stages of production and sale.
(3) In order to identify slaughterhouses for which no approval number exists, it is necessary, for a transitional period, to provide alternative methods of identification for such slaughterhouses.
(4) It is also necessary to define the procedure to be followed for labelling beef derived from animals, the full birth and movement data of which are not available because recording of those data was only required after 1 January 1998 by Council Regulation (EC) No 820/97 of 21 April 1997 establishing a system for the identification and registration of bovine animals and regarding the labelling of beef and beef products(2), A similar provision is required for labelling beef derived from animals imported live into the Community from third countries.
(5) In the context of the full indication of origin, in order to avoid unnecessary repetition of the indication on the label of the Member States or third countries where rearing took place, it is necessary to introduce a simplified presentation based on the time during which the animal from which the beef was derived was kept in the Member State or third country of birth or of slaughter.
(6) It is necessary to clarify the situation with regard to the supplementary information which may be included on labels under the simplified labelling procedures for minced beef. Such supplementary information may, under Article 13 of Regulation (EC) No 1760/2000, be indicated until 1 September 2000. Certain information may only be indicated until 1 January 2002 if the Member State concerned has taken a decision to apply a national compulsory labelling system including such information or if the operator concerned indicates the information on a voluntary basis.
(7) In the context of the voluntary beef labelling system, it is necessary to provide for an accelerated or simplified approval procedure for certain beef cuts labelled in a Member State according to an approved specification and introduced into the territory of another Member State.
(8) With a view to guaranteeing the reliability of the specification, it is necessary for the independent body and the competent authority to have access to all records kept by the operators and organisations and to carry out regular spot checks on the basis of risk analysis.
(9) Article 17 of Regulation (EC) No 1760/2000 lays down certain provisions where the production of beef takes place, in full or in part, in a third country. It is appropriate to provide detailed implementing rules for the approval procedure for imports of beef from third countries.
(10) In order to ensure that the labelling arrangements relating to imported beef are of equivalent reliability to those applicable to Community beef, the Commission shall examine notifications received from third countries. Complete notifications shall be transmitted to the Member States when the Commission reaches the conclusion that the procedures and/or criteria applied in the third country concerned are equivalent to the standards set out in Regulation (EC) No 1760/2000.
(11) In order to guarantee the reliability of the labelling system in third countries the Commission may request additional information and should take the necessary measures in the light of the information received as a result of these requests.
(12) The Commission may carry out checks in third countries. In order to be able to carry out checks in a third country, the Commission would need the prior consent of the third country concerned. If such consent is not forthcoming, the Commission should take the necessary measures.
(13) It is necessary for Member States to carry out checks in order to guarantee sufficient accuracy of the voluntary labels used.
(14) A framework for the sanctions to be imposed on operators should be established. Such a framework should take account of situations where an operator has not labelled beef in compliance with the rules of the compulsory labelling system or where an operator has labelled beef, in the context of the voluntary labelling system, without complying with the specification or where there is no approved specification. For a limited period, until 1 January 2001, in order to account for the difficulties of operators in the implementation of this regulation, the most severe sanctions should only take place when the label contains information which is misleading to the consumer or does not conform with the approved specification.
(15) Regulation (EC) No 820/97 provided that each operator or organisation wishing to make a voluntary indication on a label shall submit a specification for approval to the competent authority of each Member State in which production or sale of the beef in question takes place. Council Regulation (EC) No 2772/1999 of 21 December 1999 providing for the general rules for a compulsory beef labelling system(3) allowed operators to continue to give voluntary indications on beef labels, as a complement to the compulsory indications, until 31 August 2000.
(16) Provided no change has been made to approved voluntary specifications and on condition that they are in conformity with the new rules, it is appropriate that such specifications as well as those approved for third countries, should continue to be valid.
(17) Regulation (EC) No 820/97 provides that, where sufficient details are available in the identification and registration system for bovine animals, Member States may decide that, for beef from animals born, raised and slaughtered in the same Member State, supplementary items of information must also be indicated on labels. Regulation (EC) No 2772/1999 permitted Member States to continue to have recourse to the possibility of imposing a compulsory labelling system for beef from animals born, fattened and slaughtered on their own territory, in accordance with Article 19(4) of Regulation (EC) No 820/97, on a provisional basis, until 31 August 2000.
(18) Commission Decision No 98/595/EC of 13 October 1998 concerning the application for a compulsory beef labelling system in France and Belgium(4) and Commission Decision No 1999/1/EC of 14 December 1998 concerning the application for a compulsory beef labelling system in Finland(5) permit those Member States to impose a compulsory labelling system for beef from animals born, fattened and slaughtered on their own territory. Those decisions, as well as any further such decisions of that kind, should continue to be applicable until the full indication of origin in the Community compulsory labelling system comes into effect on 1 January 2002.
(19) In order to monitor the application of the voluntary labelling system, Member States should record the approved specifications and communicate to the Commission information on their national implementing rules and the voluntary indications approved within their territory. It is necessary to keep a regular update of such information.
(20) It is necessary to repeal Commission Regulation (EC) No 1141/97 of 23 June 1997, laying down detailed rules for the application of Council Regulation (EC) No 820/97 as regards the labelling of beef and beef products(6), as last amended by Regulation (EC) No 824/98(7). However, to avoid confusion during the transitional period before the introduction of the compulsory system, as laid down by Regulation (EC) No 1760/2000, Regulation (EC) No 1141/97 should remain applicable for meat derived from animals slaughtered before 1 September 2000.
(21) 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
Traceability
All operators and organisations, within the meaning of the third indent of Article 12 of Regulation (EC) No 1760/2000, shall, at each of their various stages of production and sale, have an identification system and a comprehensive registration system.
Such a system shall be applied in such a way as to ensure the link between the identification of the meat and the animal or animals concerned as provided for in Articles 13(1) and 16(2) of that Regulation.
The registration system shall record, in particular, the arrival and departure of livestock, carcases and/or cuts to ensure that a correlation between arrivals and departures is guaranteed.
Article 2
Labelling where information is not available
1. The approval number, as referred to in Article 13(2)(b) of Regulation (EC) No 1760/2000 shall be:
(a) either the approval number, as provided for in Article 10(1) of Council Directive 64/433/EEC(8),
(b) or, where there is no approval number, the national registration number.
Where neither of the two numbers is available, until 1 January 2001, the number may be replaced by the name and address of the slaughterhouse.
2. In application of Article 13(5) of Regulation (EC) No 1760/2000:
(a) for meat derived from animals born in the Community before 1 January 1998, where information concerning the place of birth and/or the place of rearing, other than the last place of rearing, is not available, the indication of the place of birth and/or place of rearing shall be replaced by the indication "*(Born before 1 January 1998)".
(b) for meat derived from animals imported live into the Community, where information concerning the place of birth and/or the place of rearing, other than the last place of rearing, is not available, the indication of the place of birth and/or place of rearing shall be replaced by the indication "*(Live import into the EC)" or "*(Live import from [name of third country])".
Article 3
Simplification of the indication of origin
In application of Article 13(5)(a) of Regulation (EC) No 1760/2000, for beef derived from animals which have been reared for 30 days or less:
- in the Member State or third country of birth,
- in the Member State or third country where slaughter took place,
the indication of those Member States or third countries, as a Member State or third country where rearing took place, shall not be required, provided those animals were reared in another Member State or third country for a period longer than 30 days.
Article 4
Size of a group
1. During the cutting of carcases or quarters, the size of the group referred to in the second subparagraph of Article 13(1) of Regulation (EC) No 1760/2000 shall be defined by the number of carcases or quarters cut together and constituting one batch for the cutting plant concerned. This size may not, in any case, exceed the production of one day.
2. During further cutting or mincing, a group may be reconstituted from all the groups referred to in paragraph 1 put into cutting or mincing on the same day.
Article 5
Minced beef
1. For the purposes of this Regulation, minced meat is defined as meat that has been minced into fragments or passed through a spiral-screw mincer.
2. The supplementary information which may be included on labels as provided for in the third subparagraph of Article 14 of Regulation (EC) No 1760/2000 shall be:
(a) as from 1 September 2000, the indications referred to in Article 13(2)(b) and (c) of Regulation (EC) No 1760/2000, as well as the date of mincing;
(b) as from 1 September 2000 until 1 January 2002, the indications referred to in points (a)(i) and (ii) and (b) of Article 13(5) of Regulation (EC) No 1760/2000, if the Member State concerned has taken a decision to apply a national compulsory labelling system including such information or if the operator concerned indicates the information, in conformity with Section II of Title II Regulation (EC) No 1760/2000, on a voluntary basis,
(c) as from 1 January 2002, the indications referred to in Article 13(5)(a)(i) and (ii) of Regulation (EC) No 1760/2000.
Article 6
Approval procedures
1. The period provided for in the second subparagraph of Article 16(3) of Regulation (EC) No 1760/2000, during which an approval has not been refused or given or supplementary information has not been asked for by the competent authority of the Member State to which the beef is being sent, shall be two months from the day following the date of submission of the application.
2. Pursuant to Article 16(5) of Regulation (EC) No 1760/2000 for prime beef cuts in individual packages, labelled in a Member State according to an approved specification and introduced into the territory of another Member State, where no information is added to the initial label, the period provided for in the second subparagraph of Article 16(3) of Regulation (EC) No 1760/2000 shall be 14 days.
3. For the purposes of Article 16(5) of Regulation (EC) No 1760/2000, beef in small retail packages which have been labelled in a Member State according to an approved specification may be introduced into the territory of another Member State and marketed therein without prior approval of the labelling specification by this Member State, provided that:
(a) the packages in question remain unchanged;
(b) the specification approved by the Member State of packaging also covers the marketing of the packaged beef in other Member States;
(c) the Member State approving such a specification provides all necessary information in advance to all other Member States, where, according to the approved specification, packaged beef is to be marketed.
Article 7
Checks
1. Operators and organisations shall at all times grant the experts of the Commission, the competent authority and the relevant independent control body within the meaning of the third subparagraph of Article 16(1) of Regulation (EC) No 1760/2000, access to its premises and to all records which prove that the information on the labels concerned is correct.
2. The competent authority and, in the case referred to in the third subparagraph of Article 16(1) of Regulation (EC) No 1760/2000, the independent control body shall carry out regular spot checks on the basis of risk analysis which shall take into account, in particular, the complexity of the specification concerned. For each check an inspection report shall be made to include any shortcomings as well as the measures proposed to remedy the situation and any deadlines and sanctions imposed.
3. Where the option provided for in the third subparagraph of Article 16(1) of Regulation (EC) No 1760/2000 is not taken up, Member States will carry out checks in such a way as to give sufficient guarantees of the accuracy of the labels used. Their frequency shall be determined, in particular, by reference to the complexity of the specification concerned.
4. Operators, organisations and independent control bodies shall communicate all relevant information to the competent authority.
Article 8
Approvals granted by third countries
1. The Commission shall verify that notifications are complete as provided for in Article 17(2) of Regulation (EC) No 1760/2000. On receipt of a notification which is incomplete, the Commission shall inform the third country concerned indicating the information which is required.
Complete notifications shall be transmitted to Member States unless the Commission reaches the conclusion that the procedures and/or criteria applied in the third country concerned are not equivalent to the standards set out in Regulation (EC) No 1760/2000 in accordance with its power to do so pursuant to the third subparagraph of Article 17(2) of that Regulation.
2. If, at any time, the Commission considers, on the basis of the notification provided for in Article 17(2) of Regulation (EC) No 1760/2000, that it is appropriate to verify that the procedures and/or criteria notified by a third country are currently equivalent to the standards set out in Regulation (EC) No 1760/2000, the Commission may request the third country to provide any necessary information. In particular, the Commission may request the third country to provide copies of the specifications approved by the designated competent authority. The Commission may further request the third country to authorise representatives of the Commission to carry out checks in the third country.
3. If any information or authorisation requested pursuant to the preceding paragraph is not received within the time specified by the Commission, the Commission may conclude that the procedures and/or criteria applied in a third country are not equivalent to the standards set out in Regulation (EC) No 1760/2000.
4. The Commission may at any time change its initial decision as regards the equivalency of the procedures and/or criteria applied in the third country concerned pursuant to the third subparagraph of Article 17(2) of Regulation (EC) No 1760/2000.
Article 9
Sanctions
1. Member States shall determine the system of sanctions that shall be applicable in case of breaches of Regulation (EC) No 1760/2000 and shall take all necessary measures to ensure its implementation. The sanctions provided for shall be effective, proportionate and dissuasive.
2. Without prejudice to the sanctions referred to in Article 18 of Regulation (EC) No 1760/2000, where beef has been labelled:
- without complying with the compulsory labelling system, or
- in the case of application of the voluntary system, without complying with the specification, or where there is no approved specification,
Member States shall require the removal of the beef from the market until it is re-labelled in conformity with this Regulation.
However, if the meat concerned conforms with all existing veterinary and hygiene rules, Member States may, in addition to the sanctions referred to in paragraph 1, authorise that such beef be sent directly for processing into products, other than those indicated in the first indent of Article 12 of Regulation (EC) No 1760/2000.
3. Until 1 January 2001, the removal of beef meat from the market shall only take place when the label contains information which could mislead the consumer to a material degree or does not conform with the approved specification.
Article 10
Records
The competent authority shall make a record of the approved specifications and, in particular, of each operator and organisation responsible for the labelling of the beef and the independent body responsible for the checks.
Article 11
Communications
Member States shall communicate to the Commission:
(a) the names of the authorities competent for the implementation of the labelling system pursuant to Regulation (EC) No 1760/2000 as well as the further detailed implementing rules and, in particular, those concerning the relevant checks to be carried out and the sanctions to be applied;
(b) by 30 September 2000, a list of all voluntary indications approved within their territory;
(c) every three months, an update of the list referred to in point (b).
Article 12
Transitional provision
On the condition that they are in conformity with Regulation (EC) No 1760/2000 and with this Regulation,
(a) voluntary specifications approved under Articles 14 and 15 of Regulation (EC) No 820/97 shall continue to be valid;
(b) the national compulsory beef labelling systems, approved under Article 19(4) of Regulation (EC) No 820/97, shall continue to be valid until 1 January 2002, as well as any further such decisions.
Article 13
Repeal
Regulation (EC) No 1141/97 is hereby repealed.
However, it shall remain applicable for meat derived from animals slaughtered before 1 September 2000.
References to the repealed Regulation shall be construed as references to this Regulation and shall be read in accordance with the correlation table in the Annex.
Article 14
Entry into force
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 beef derived from animals slaughtered from 1 September 2000.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 25 August 2000.
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COMMISSION REGULATION (EC) No 1922/95 of 3 August 1995 amending Regulation (EEC) No 627/85 on storage aid and financial compensation for unprocessed dried grapes and figs
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Council Regulation (EEC) No 426/86 of 24 February 1986 on the common organization of the market in products processed from fruit and vegetables (1), as last amended by Commission Regulation (EC) No 1032/95 (2), and in particular Article 8 (7) thereof,
Whereas Articles 3 and 6 of Commission Regulation (EEC) No 627/85 of 12 March 1985 (3), as last amended by Regulation (EC) No 1363/95 (4), lay down the periods covered by and deadlines for submission of applications by storage agencies for storage aid and financial compensation; whereas the period covered by the first applications appears too long in the specific case of dried figs which are quickly sold after being taken over for purposes other than human consumption; whereas that period should therefore be reduced in order to avoid excessive delays in the reimbursement of storage costs and financial compensation to storage agencies;
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
The first subparagraph of Article 3 (2) of Regulation (EEC) No 627/85 is hereby replaced by the following:
'The first application for storage aid for products purchased during a given marketing year shall cover the period from the taking over of the products until 31 August in the case of dried figs and until 30 November in the case of dried grapes.`
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, 3 August 1995.
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COMMISSION DECISION
of 1 February 2000
concerning the suspension of the approval of establishments in Slovenia producing fresh meat, meat products and game meat
(notified under document number C(2000) 279)
(Text with EEA relevance)
(2000/89/EC)
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Council Directive 72/462/EEC of 12 December 1972 on health and veterinary inspection problems upon importation of bovine, ovine and caprine animals and swine, fresh meat or meat products from third countries(1), as last amended by Directive 97/79/EC(2) and in particular Article 5 thereof,
Having regard to Council Directive 97/78/EC of 18 December 1997 laying down the principles governing the organisation of veterinary checks on products entering the Community from third countries(3), and in particular Article 22 thereof,
Whereas:
(1) The Commission, further to be results of a mission of the Food and Veterinary Office (FVO) of the European Commission to Slovenia concerning controls in fresh meat establishments, meat products establishments and wilde game meat establishments, which brought to light serious facts against approved establishments, has taken Decision 1999/820/EC of 18 November 1999 suspending the approval of establishments in Slovenia producing fresh meat, meat products and game meat(4).
(2) The purpose of that Decision was to avoid any risk for the consumer; in this context, a time limit has been given to the Slovenian authorities with a view to taking the appropriate measures with the aim of correcting the deficiencies as soon as possible.
(3) The measures of that Decision had to be reviewed in the light of the results of a further inspection mission of the FVO in Slovenia.
(4) The FVO has carried out a further mission to Slovenia concerning controls in meat establishments which has shown that the situation has significantly improved; the FVO, in view of the result of this mission, proposed to repeal Decision 1999/820/EC.
(5) It is therefore appropriate to repeal Decision 1999/820/EC.
(6) The measures provided for in this Decision are in accordance with the opinion of the Standing Veterinary Committee,
HAS ADOPTED THIS DECISION:
Article 1
Decision 1999/820/EC is hereby repealed.
Article 2
Member States shall modify the measures they apply to trade to bring them into line with the present Decision. They shall immediately inform the Commission thereof.
Article 3
This Decision is addressed to the Member States.
Done at Brussels, 1 February 2000.
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Commission Regulation (EC) No 2243/2001
of 16 November 2001
amending Council Regulation (EC) No 1420/1999 and Commission Regulation (EC) No 1547/1999 as regards shipments of certain types of waste to Cameroon, Paraguay and Singapore
(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 259/93 of 1 February 1993 on the supervision and control of shipments of waste within, into and out of the European Community(1), as last amended by Commission Decision 1999/816/EC(2), and in particular Article 17(3) thereof,
Having regard to Council Regulation (EC) No 1420/1999 of 29 April 1999 establishing common rules and procedures to apply to shipments to certain non-OECD countries of certain types of waste(3), as last amended by Commission Regulation (EC) No 1800/2001(4), and in particular Article 3(5) thereof,
Whereas:
(1) In January 2000, the Commission sent a note verbale to all non-OECD countries (plus Hungary and Poland which do not yet apply OECD Decision C(92)39 final). The purpose of this note verbale was threefold: (a) to inform these countries of the Community's new regulations; (b) to ask for confirmation of the respective positions as outlined in the annexes to Regulation (EC) No 1420/1999 and Commission Regulation (EC) No 1547/1999 of 12 July 1999 determining the control procedures under Council Regulation (EEC) No 259/93 to apply to shipments of certain types of waste to certain countries to which OECD Decision C(92) 39 final does not apply(5), as last amended by Regulation (EC) No 1800/2001; and (c) to have an answer from those countries which did not reply in 1994.
(2) Among the countries that replied, Paraguay notified the Commission that the import of certain wastes listed in Annex II to Regulation (EEC) No 259/93 is accepted without any control procedure. Concerning other waste, they have indicated that their position is not changed (reply of 1 March 2000).
(3) Singapore notified the Commission that the import of certain wastes listed in Annex II to Regulation (EEC) No 259/93 is accepted either without any control procedure or following the procedure applying to waste listed in Annex III to the same regulation ("amber procedure"). Concerning other waste, they have indicated that their position is not changed (reply of 4 January 2001).
(4) In accordance with Article 17(3) of Regulation (EEC) No 259/93, the committee set up by Article 18 of Council Directive 75/442/EEC of 15 July 1975 on waste(6), as last amended by Commission Decision 96/350/EC(7), was notified of the official request of Singapore on 11 January 2001 and was notified of the official request of Paraguay on 8 February 2001.
(5) In order to take into account the new situation of these countries, it is necessary to amend at the same time Regulation (EC) No 1420/1999 and Regulation (EC) No 1547/1999.
(6) Concerning Cameroon it is necessary to amend section GA of Annexe A to Regulation (EC) No 1420/1999 to ensure consistency with Regulation (EC) No 1547/1999.
(7) The measures provided for in this Regulation are in accordance with the opinion of the Committee set up by Article 18 of Directive 75/442/EEC,
HAS ADOPTED THIS REGULATION:
Article 1
Annexes A and D to Regulation (EC) No 1547/1999 are amended as set out in Annex I to this Regulation.
Article 2
Annex A to Regulation (EC) No 1420/1999 is amended as set out in Annex II to this Regulation.
Article 3
This Regulation shall enter into force on the 20th 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 November 2001.
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COMMISSION REGULATION (EC) No 3146/94 of 21 December 1994 adopting exceptional support measures for the market in pigmeat in Germany
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Council Regulation (EEC) No 2759/75 of 29 October 1975, on the common organization of the market in pigmeat (1), as last amended by Commission Regulation (EEC) No 1249/89 (2), and in particular Articles 20 and 22, second paragraph thereof,
Whereas, because of the outbreak of classical swine fever in certain production regions in Germany, protection and surveillance zones have been established by the German authorities pursuant to Article 9 of Council Directive 80/217/EEC introducing Community measures for the control of classical swine fever (3), as last amended by Decision 93/384/EEC (4); whereas, consequently, in these zones the trade in live pigs, fresh pigmeat and pigmeat products which have not been subjected to heat treatment is temporarily prohibited;
Whereas restrictions on the free movement of goods resulting from the application of veterinary measures are likely to bring about a serious disturbance of the pigmeat market in Germany; whereas exceptional market support measures, to apply for no longer than is strictly necessary, must accordingly be adopted with respect solely to live animals from the affected areas;
Whereas, with the aim of preventing a further spread of the disease, the pigs produced in the said zones should either be separated from normal trade in products intended for human consumption and processed into products intended for uses other than human consumption, or be used for the manufacture of processed products which have undergone heat treatment so as to prevent any risk to health; whereas provision should be made to export these products so as to avoid disturbance on the Community market; whereas no export refund should be granted, given the quite low price level at which the processing industry can find supplies; whereas the traditinal trade links with third countries for these products should be maintained and any disturbance of the markets in these countries should be avoided;
Whereas it is appropriate to grant an aid for the delivery to the competent authorities of live fattened pigs coming from the affected zones;
Whereas in view of the extent of the disease and, in particular, of its duration, and consequently of the magnitude of the efforts needed to support the market, in would be appropriate for such efforts to be shared by the Community and the Member State concerned;
Whereas provision should be made for the German authorities to adopt all necessary control and surveillance measures and to inform the Commission accordingly;
Whereas the restrictions on the free movement of live pigs have been operative for several weeks now in the zones in question, provoking a substantial increase in the weight of the animals and consequently leading to an intolerable situation where the welfare of the animals is concerned; whereas retroactive application of this Regulation from 13 December 1994 is therefore justified;
Whereas the measures provided for in this Regulation are in accordance with the Management Committee for Pigmeat,
HAS ADOPTED THIS REGULATION:
Article 1
1. From 13 December 1994 producers may benefit, on request, from an aid granted by the competent German authorities for the delivery of fattened pigs falling under CN code 0103 92 13 weighing 120 kilograms or more on average per batch.
2. The aid granted to the first 14 000 fattened pigs is financed by the Community budget.
3. Germany is authorized to grant, in addition, at its own expense and on the terms laid down in this Regulation an aid for the following 6 000 fattened pigs.
Article 2
Only live fattened pigs raised in the protection and surveillance zones located within the administrative regions listed in the Annex to this Regulation can be delivered, provided that the veterinary provisions laid down by the German authorities apply in the zones on the day the animals are delivered.
Article 3
On the day they are delivered, the animals shall be weighed and slaughtered in such a way as to prevent the disease from spreading.
They shall be transported without delay to a rendering plant and processed into products falling within CN codes 1501 00 11, 1506 00 00 and 2301 10 00.
However, the pigs may be transported to a slaughterhouse where they shall be slaughtered forthwith and may be stored as whole or half carcases in a cold store.
These operations shall be carried out under the permanent supervision of the competent German authorities.
Article 4
1. Article 3 notwithstanding, the German authorities may decide to use the pigs slaughtered for the manufacture of processed products falling within CN code heading 1602. In this case, the meat shall undergo heat treatment raising the centre temperature to at least 70 °C.
2. The processed products referred to in paragraph 1 must be exported before 1 July 1995. No export refund shall be granted. The competent authorities shall take the necessary measures to ensure that these provisions are complied with and shall inform the Commission thereof.
The said measures shall include in particular the obligation on the part of the operators to supply at 15 day intervals the data relating to the exports and to complete the customs export formalities in Germany, as well as the obligatory inclusion on the export declaration, and where appropriate on the T5 control copy, of the following:
'Regulation (EC) No 3146/94; export without refund'.
3. The German authorities shall take all the necessary measures to ensure that the carcases or half-carcases are fully processed and that veterinary requirements during storage, transport and processing are observed. These measures shall include a permanent on-the-spot check of the meat processing by the competent authorities. Germany shall notify the Commission of the practical administrative and monitoring measures it has taken within 15 days of the adoption of this Regulation.
4. The profits resulting from the sale of any meat of pigs slaughtered by the German authorities for processing shall be divided between the Community and Germany on the basis of the scale used to grant the aid. Any loss resulting from the sales transaction shall not be charged to the Community budget. The sale of the meat to the processing industry by the German authorities should be carried out by means of a tender system.
5. Germany shall ensure by appropriate means that sales of processed products falling within CN heading 1602 are carried out under fair competitive conditions and do not give rise to undue profit on the part of the operators.
6. The German authorities shall inform the Commission on a regular basis of the progress of the sales, particularly as regards the prices achieved, the quantities sold and the countries of destination. The authorities shall notify the Commission of the measures taken pursuant to paragraph 5 above.
Article 5
1. The aid provided for in Article 1 (1), at farm gate, shall be:
- ECU 108 per 100 kilograms slaughtered weight for fattened pigs weighing 120 kilograms or more on average per batch,
- ECU 92 per 100 kilograms slaughtered weight for fattened pigs weighing less than 120 kilograms but more than 110 kilograms on average per batch.
2. The aid is fixed on the basis of the established slaughtered weight. If, however, the animals are only weighed live, a coefficient of 0,81 is applied on the aid.
Article 6
The competent German authorities shall adopt all measures necessary to ensure compliance with the provisions of this Regulation and in particular with Article 2 thereof. They shall inform the Commission accordingly as soon as possible.
Article 7
The competent German authorities shall send the Commission each Wednesday the number and total weight of the fattened pigs delivered in the previous week.
Article 8
This Regulation shall enter into force on the day of its publication in the Official Journal of the European Communities.
It shall apply with effect from 13 December 1994.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 21 December 1994.
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COUNCIL DIRECTIVE 92/30/EEC of 6 April 1992 on the supervision of credit institutions on a consolidated basis
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Economic Community, and in particular the first and third sentences of Article 57 (2) thereof,
Having regard to the proposal from the Commission,
In cooperation with the European Parliament (1),
Having regard to the opinion of the Economic and Social Committee (2),
Whereas Council Directive 83/350/EEC of 13 June 1983 on the supervision of credit institutions on a consolidated basis (3) established the necessary framework for the introduction of supervision of credit institutions on a consolidated basis; whereas, following the transposition of that Directive into the national law of the Member States, the principle of supervision on a consolidated basis is now applied throughout the Community;
Whereas, in order to be effective, supervision on a consolidated basis must be applied to all banking groups, including those the parent undertakings of which are not credit institutions; whereas the competent authorities must hold the necessary legal instruments to be able to exercise such supervision;
Whereas, in the case of groups with diversified activities the parent undertakings of which control at least one credit institution subsidiary, the competent authorities must be able to assess the financial situation of a credit institution in such a group; whereas, pending subsequent coordination, the Member States may lay down appropriate methods of consolidation for the achievement of the objective of this Directive; whereas the competent authorities must at least have the means of obtaining from all undertakings within a group the information necessary for the performance of their function; whereas cooperation between the authorities responsible for the supervision of different financial sectors must be established in the case of groups of undertakings carrying on a range of financial activities;
Whereas rules limiting the risks taken by a credit institution on the mixed-activity holding company of which it is a subsidiary, as well as those taken on the other subsidiaries of the same mixed-activity holding company, can be particularly useful; whereas it would, however, appear to be preferable to settle this question in a more systematic manner in the framework of a future Directive on the limitation of large exposures;
Whereas the Member States can, furthermore, refuse or withdraw banking authorization in the case of certain group structures considered inappropriate for carrying on banking activities, in particular because such structures could not be supervised effectively; whereas in this respect the competent authorities have the powers mentioned in Article 8 (1) (c) of the First Council Directive (77/780/EEC) of 12 December 1977 on the coordination of the laws, regulations and administrative provisions relating to the taking up and pursuit of the business of credit institutions (4) and in Articles 5 and 11 of the Second Council Directive (89/646/EEC) of 15 December 1989 on the coordination of laws, regulations and administrative provisions relating to the taking up and pursuit of the business of credit institutions (5), in order to ensure the sound and prudent management of credit institutions;
Whereas the Member States can equally apply appropriate supervision techniques to groups with structures not covered by this Directive; whereas, if such structures become common, this Directive should be extended to cover them;
Whereas supervision on a consolidated basis must take in all activities defined in the Annex to Directive 89/646/EEC; whereas all undertakings principally engaged in such activities must therefore be included in supervision on a consolidated basis; whereas, as a result, the definition of a financial institution given in Directive 83/350/EEC must be widened to cover such activities;
Whereas, regarding the consolidation of financial institutions involved in activities principally subject to market risks and subject to particular rules of supervision, the coordination of the methods for the consolidated supervision of market risks is possible in the framework of Community harmonization of capital adequacy of investment firms and credit institutions, for which the Commission has introduced a proposal for a Directive; whereas such harmonization concerns, inter alia, the conditions which must be applied when offsetting opposing positions in the group and the case where these financial institutions are subject to specific supervisory rules regarding their financial stability; whereas this implies that, until the future Directive on capital adequacy to cover market risks is brought into effect, the competent authorities shall include in consolidated supervision financial institutions which are principally exposed ot market risks, in accordance with methods determined by those authorities in the light of the particular nature of the risks involved;
Whereas, following the adoption of Council Directive 86/635/EEC of 8 December 1986 on the annual accounts and consolidated accounts of banks and other financial institutions (6), which, together with the Seventh Council Directive (83/349/EEC) of 13 June 1983 on consolidated accounts (7), established the rules of consolidation applicable to consolidated accounts published by credit institutions, it is now possible to define more precisely the methods to be used in prudential supervision exercised on a consolidated basis;
Whereas this Directive is fully in keeping with the objectives defined in the Single European Act; whereas it will, in particular, ensure the homogeneous application throughout the Community of prudential rules established by other Community legislation, which must be observed on a consolidated basis; whereas this Directive is, in particular, necessary for the correct application of Council Directive 89/299/EEC of 17 April 1989 on the own funds of credit institutions (8);
Whereas supervision of credit institutions on a consolidated basis must be aimed at, in particular, protecting the interests of the depositors of the said institutions and at ensuring the stability of the financial system;
Whereas it is desirable that agreement should be reached, on the basis of reciprocity, between the Community and third countries with a view to allowing the practical exercise of consolidated supervision over the largest possible geographical area;
Whereas the amendments to be made to Directive 83/350/EEC are so considerable that it is preferable that it be wholly replaced by this Directive,
HAS ADOPTED THIS DIRECTIVE:
Article 1
Definitions For the purposes of this Directive:
- credit institution shall mean a credit institution within the meaning of the first indent of Article 1 of Directive 77/780/EEC, or any private or public undertaking which corresponds to the definition in the first indent of Article 1 of Directive 77/780/EEC and has been authorized in a third country,
- financial institution shall mean an undertaking, other than a credit institution, the principal activity of which is to acquire holdings or to carry on one or more of the activities referred to in numbers 2 to 12 of the list appearing in the Annex to Directive 89/646/EEC,
- financial holding company shall mean a financial institution the subsidiary undertakings of which are either exclusively or mainly credit institutions or financial institutions, one at least of such subsidiaries being a credit institution,
- mixed-activity holding company shall mean a parent undertaking, other than a financial holding company or a credit institution, the subsidiaries of which include at least one credit institution,
- ancillary banking services undertaking shall mean an undertaking the principal activity of which consists in owning or managing property, managing data-processing services, or any other similar activity which is ancillary to the principal activity of one or more credit institution,
- participation shall mean the ownership, direct or indirect, of 20 % or more of the voting rights or capital of an undertaking,
- parent undertaking shall mean a parent undertaking within the meaning of Article 1 (1) of the Directive 83/349/EEC and any undertaking which, in the opinion of the competent authorities, effectively exercises a dominant influence over another undertaking,
- subsidiary shall mean a subsidiary undertaking within the meaning of Article 1 (1) of Directive 83/349/EEC and any undertaking over which, in the opinion of the competent authorities, a parent undertaking effectively exercises a dominant influence. All subsidiaries of subsidiary undertakings shall also be considered subsidiaries of the undertaking that is their original parent,
- competent authorities shall mean the national authorities which are empowered by law or regulation to supervise credit institutions.
Article 2
Scope This Directive shall apply to credit institutions that have obtained the authorization referred to in Article 3 of Directive 77/780/EEC, financial holding companies and mixed-activity holding companies which have their head offices in the Community.
The institutions permanently excluded by Article 2 of Directive 77/780/EEC, with the exception, however, of the Member States' central banks, shall be treated as financial institutions for the purposes of this Directive.
Article 3
Supervision on a consolidated basis of credit institutions 1. Every credit institution which has a credit institution or a financial institution as a subsidiary or which holds a participation in such institutions shall be subject, to the extent and in the manner prescribed in Article 5, to supervision on the basis of its consolidated financial situation. Such supervision shall be exercised at least in the areas referred to in paragraphs 5 and 6.
2. Every credit institution the parent undertaking of which is a financial holding company shall be subject, to the extent and in the manner prescribed in Article 5, to supervision on the basis of the consolidated financial situation of that financial holding company. Such supervision shall be exercised at least in the areas referred to in paragraphs 5 and 6. The consolidation of the financial situation of the financial holding company shall not in any way imply that the competent authorities are required to play a supervisory role in relation to the financial holding company standing alone.
3. The Member States or the competent authorities responsible for exercising supervision on a consolidated basis pursuant to Article 4 may decide in the cases listed below that a credit institution, financial institution or auxiliary banking services undertaking which is a subsidiary or in which a participation is held need not be included in the consolidation:
- if the undertaking that should be included is situated in a third country where there are legal impediments to the transfer of the necessary information,
- if, in the opinion of the competent authorities, the undertaking that should be included is of negligible interest only with respect to the objectives of monitoring credit institutions and in all cases if the balance sheet total of the undertaking that should be included is less than the smaller of the following two amounts: ECU 10 million or 1 % of the balance sheet total of the parent undertaking or the undertaking that holds the participation. If several undertakings meet the above criteria, they must nevertheless be included in the consolidation where collectively they are of non-negligible interest with respect to the aforementioned objectives, or
- if, in the opinion of the competent authorities responsible for exercising supervision on a consolidated basis, the consolidation of the financial situation of the undertaking that should be included would be inappropriate or misleading as far as the objectives of the supervision of credit institutions are concerned.
4. When the competent authorities of a Member State do not include a credit institution subsidiary in supervision on a consolidated basis under one of the cases provided for in the second and third indents of paragraph 3, the competent authorities of the Member State in which that credit institution subsidiary is situated may ask the parent undertaking for information which may facilitate their supervision of that credit institution.
5. Supervision of solvency, and of the adequacy of own funds to cover market risks and control of large exposures, as governed by the relevant Community acts in force, shall be exercised on a consolidated basis in accordance with this Directive. Member States shall adopt any measures necessary, where appropriate, to include financial holding companies in consolidated supervision, in accordance with paragraph 2.
Compliance with the limits set in Article 12 (1) and (2) of Directive 89/646/EEC shall be supervised and controlled on the basis of the consolidated or sub-consolidated financial situation of the credit institution.
6. The competent authorities shall ensure that, in all the undertakings included in the scope of the supervision on a consolidated basis that is exercised over a credit institution in implementation of paragraphs 1 and 2, there are adequate internal control mechanisms for the production of any data and information which would be relevant for the purposes of supervision on a consolidated basis.
7. Without prejudice to specific provisions contained in other Directives, Member States may waive application, on an individual or sub-consolidated basis, of the rules laid down in paragraph 5 to a credit institution that, as a parent undertaking, is subject to supervision on a consolidated basis, and to any subsidiary of such a credit institution which is subject to their authorization and supervision and is included in the supervision on a consolidated basis of the credit institution which is the parent company. The same exemption option shall be allowed where the parent undertaking is a financial holding company which has its head office in the same Member State as the credit institution, provided that it is subject to the same supervision as that exercised over credit institutions, and in particular the standards laid down in paragraph 5.
In both cases, steps must be taken to ensure that capital is distributed adequately within the banking group.
If the competent authorities do apply those rules individually to such credit institutions, they may, for the purpose of calculating own funds, make use of the provision in the last subparagraph of Article 2 (1) of Directive 89/299/EEC.
8. Where a credit institution the parent of which is a credit institution has been authorized and is situated in another Member State, the competent authorities which granted that authorization shall apply the rules laid down in paragraph 5 to that institution on an individual or, when appropriate, a sub-consolidated basis.
9. Notwithstanding the requirements of paragraph 8, the competent authorities responsible for authorizing the subsidiary of a parent undertaking which is a credit institution may, by bilateral agreement, delegate their responsibility for supervision to the competent authorities which authorized and supervise the parent undertaking. The Commission must be kept informed of the existence and content of such agreements. It shall forward such information to the competent authorities of the other Member States and to the Banking Advisory Committee.
10. Member States shall provide that their competent authorities responsible for exercising supervision on a consolidated basis may ask the subsidiaries of a credit institution or a financial holding company which are not included within the scope of supervision on a consolidated basis for the information referred to in Article 6. In such a case, the procedures for transmitting and verifying the information laid down in that Article shall apply.
Article 4
Competent authorities responsible for exercising supervision on a consolidated basis 1. Where a parent undertaking is a credit institution, supervision on a consolidated basis shall be exercised by the competent authorities that authorized it under Article 3 of Directive 77/780/EEC.
2. Where the parent of a credit institution is a financial holding company, supervision on a consolidated basis shall be exercised by the competent authorities which authorized that credit institution under Article 3 of Directive 77/780/EEC.
However, where credit institutions authorized in two or more Member States have as their parent the same financial holding company, supervision on a consolidated basis shall be exercised by the competent authorities of the credit institution authorized in the Member State in which the financial holding company was set up.
If no credit institution subsidiary has been authorized in the Member State in which the financial holding company was set up, the competent authorities of the Member States concerned (including those of the Member State in which the financial holding company was set up) shall seek to reach agreement as to who amongst them will exercise supervision on a consolidated basis. In the absence of such agreement, supervision on a consolidated basis shall be exercised by the competent authorities that authorized the credit institution with the greatest balance sheet total; if that figure is the same, supervision on a consolidated basis shall be exercised by the competent authorities which first gave the authorization referred to in Article 3 of Directive 77/780/EEC.
3. The competent authorities concerned may by common agreement waive the rules laid down in the first and second subparagraphs of paragraph 2.
4. The agreements referred to in the third subparagraph of paragraph 2 and in paragraph 3 shall provide for procedures for cooperation and for the transmission of information such that the objectives of this Directive may be achieved.
5. Where Member States have more than one competent authority for the prudential supervision of credit institutions and financial institutions, Member States shall take the requisite measures to organize coordination between such authorities.
Article 5
Form and extent of consolidation 1. The competent authorities responsible for exercising supervision on a consolidated basis must, for the purposes of supervision, require full consolidation of all the credit institutions and financial institutions which are subsidiaries of a parent undertaking.
However, proportional consolidation may be prescribed where, in the opinion of the competent authorities, the liability of a parent undertaking holding a share of the capital is limited to that share of the capital because of the liability of the other shareholders or members whose solvency is satisfactory. The liability of the other shareholders and members must be clearly established, if necessary by means of formal, signed commitments.
2. The competent authorities responsible for carrying out supervision on a consolidated basis must, in order to do so, require the proportional consolidation of participations in credit institutions and financial institutions managed by an undertaking included in the consolidation together with one or more undertakings not included in the consolidation, where those undertakings' liability is limited to the share of the capital they hold.
3. In the case of participations or capital ties other than those referred to in paragraphs 1 and 2, the competent authorities shall determine whether and how consolidation is to be carried out. In particular, they may permit or require use of the equity method. That method shall not, however, constitute inclusion of the undertakings concerned in supervision on a consolidated basis.
4. Without prejudice to paragraphs 1, 2 and 3, the competent authorities shall determine whether and how consolidation is to be carried out in the following cases:
- where, in the opinion of the competent authorities, a credit institution exercises a significant influence over one or more credit institutions or financial institutions, but without holding a participation or other capital ties in these institutions,
- where two or more credit institutions or financial institutions are placed under single management other than pursuant to a contract or clauses of their memoranda or articles of association,
- where two or more credit institutions or financial institutions have administrative, management or supervisory bodies with the same persons constituting a majority.
In particular, the competent authorities may permit, or require use of, the method provided for in Article 12 of Directive 83/349/EEC. That method shall not, however, constitute inclusion of the undertakings concerned in consolidated supervision.
5. Where consolidated supervision is required pursuant to Article 3 (1) and (2), ancillary banking services undertakings shall be included in consolidations in the cases, and in accordance with the methods, laid down in paragraphs 1 to 4, of this
Article.
Article 6
Information to be supplied by mixed-activity holding companies and their subsidiaries 1. Pending further coordination of consolidation methods, Member States shall provide that, where the parent undertaking of one or more credit institutions is a mixed-activity holding company, the competent authorities responsible for the authorization and supervision of those credit institutions shall, by approaching the mixed-activity holding company and its subsidiaries either directly or via credit institution subsidiaries, require them to supply any information which would be relevant for the purposes of supervising the credit institution subsidiaries.
2. Member States shall provide that their competent authorities may carry out, or have carried out by external inspectors, on-the-spot inspections to verify information received from mixed-activity holding companies and their subsidiaries. If the mixed-activity holding company or one of its subsidiaries is an insurance undertaking, the procedure laid down in Article 7 (4) may also be used. If a mixed-activity holding company or one of its subsidiaries is situated in a Member State other than that in which the credit institution subsidiary is situated, on-the-spot verification of information shall be carried out in accordance with the procedure laid down in Article 7 (7).
Article 7
Measures to facilitate the application of this Directive 1. Member States shall take the necessary steps to ensure that there are no legal impediments preventing the undertakings included within the scope of supervision on a consolidated basis, mixed-activity holding companies and their subsidiaries, or subsidiaries of the kind covered in Article 3 (10), from exchanging amongst themselves any information which would be relevant for the purposes of supervision in accordance with this Directive.
2. Where a parent undertaking and any of its subsidiaries that are credit institutions are situated in different Member States, the competent authorities of each Member State shall communicate to each other all relevant information which may allow or aid the exercise of supervision on a consolidated basis.
Where the competent authorities of the Member State in which a parent undertaking is situated do not themselves exercise supervision on a consolidated basis pursuant to Article 4, they may be invited by the competent authorities responsible for exercising such supervision to ask the parent undertaking for any information which would be relevant for the purposes of supervision on a consolidated basis and to transmit it to these authorities.
3. Member States shall authorize the exchange between their competent authorities of the information referred to in paragraph 2, on the understanding that, in the case of financial holding companies, financial institutions or ancillary banking services undertakings, the collection or possession of information shall not in any way imply that the competent authorities are required to play a supervisory role in relation to those institutions or undertakings standing alone.
Similarly, Member States shall authorize their competent authorities to exchange the information referred to in Article 6 on the understanding that the collection or possession of information does not in any way imply that the competent authorities play a supervisory role in relation to the mixed-activity holding company and those of its subsidiaries which are not credit institutions, or to subsidiaries of the kind covered in Article 3 (10).
4. Where a credit institution, financial holding company or a mixed-activity holding company controls one or more subsidiaries which are insurance companies or other undertakings providing investment services which are subject to authorization, the competent authorities and the authorities entrusted with the public task of supervising insurance undertakings or those other undertakings providing investment services shall cooperate closely. Without prejudice to their respective responsibilities, those authorities shall provide one another with any information likely to simplify their task and to allow supervision of the activity and overall financial situation of the undertakings they supervise.
5. Information received pursuant to this Directive and in particular any exchange of information between competent authorities which is provided for in this Directive shall be subject to the obligation of professional secrecy defined in Article 12 of Directive 77/780/EEC.
6. The competent authorities responsible for supervision on a consolidated basis shall establish lists of the financial holding companies referred to in Article 3 (2). Those lists shall be communicated to the competent authorities of the other Member States and to the Commission.
7. Where, in applying this Directive, the competent authorities of one Member State wish in specific cases to verify the information concerning a credit institution, a financial holding company, a financial institution, an ancillary banking services undertaking, a mixed-activity holding company, a subsidiary of the kind covered in Article 6 or a subsidiary of the kind covered in Article 3 (10), situated in another Member State, they must ask the competent authorities of that other Member State to have that verification carried out. The authorities which receive such a request must, within the framework of their competence, act upon it either by carrying out the verification themselves, by allowing the authorities who made the request to carry it out, or by allowing an auditor or expert to carry it out.
8. Without prejudice to their provisions of criminal law, Member States shall ensure that penalties or measures aimed at ending observed breaches or the causes of such breaches may be imposed on financial holding companies and mixed-activity holding companies, or their effective managers, that infringe laws, regulations or administrative provisions enacted to implement this Directive. In certain cases, such measures may require the intervention of the courts. The competent authorities shall cooperate closely to ensure that the abovementioned penalties or measures produce the desired results, especially when the central administration or main establishment of a financial holding company or of a mixed-activity holding company is not located at its head office.
Article 8
Third countries 1. The Commission may submit proposals to the Council, either at the request of a Member State or on its own initiative, for the negotiation of agreements with one or more third countries regarding the means of exercising supervision on a consolidated basis over:
- credit institutions the parent undertakings of which have their head offices situated in a third country, and
- credit institutions situated in third countries the parent undertakings of which, whether credit institutions or financial holding companies, have their head offices in the Community.
2. The agreements referred to in paragraph 1 shall in particular seek to ensure both:
- that the competent authorities of the Member States are able to obtain the information necessary for the supervision, on the basis of their consolidated financial situations, of credit institutions or financial holding companies situated in the Community and which have as subsidiaries credit institutions or financial institutions situated outside the Community, or which hold participations in such institutions,
- that the competent authorities of third countries are able to obtain the information necessary for the supervision of parent undertakings the head offices of which are situated within their territories and which have as subsidiaries credit institutions or financial institutions situated in one or more Member States, or which hold participations in such institutions.
3. The Commission and the Advisory Committee set up under Article 11 of Directive 77/780/EEC shall examine the outcome of the negotiations referred to in paragraph 1 and the resulting situation.
Article 9
Final provisions 1. Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive before 1 January 1993. They shall forthwith inform the Commission thereof.
When Member States adopt the abovementioned measures, the measures shall contain a reference to this Directive or 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.
2. Notwithstanding the provisions of Article 3 (5) and until the future Directive on capital adequacy to cover market risks is brought into effect, the competent authorities shall include in consolidated supervision financial institutions which are principally exposed to market risks in accordance with methods to be determined by those authorities in the light of the particular nature of the risks involved.
3. Member States shall communicate to the Commission the texts of the main provisions of internal law which they adopt in the field governed by this Directive.
Article 10
1. Directive 83/350/EEC is hereby repealed with effect from 1 January 1993.
2. In the following provisions, the words 'Directive 83/350/EEC' shall be replaced by 'Directive 92/350/EEC':
- Article 5 of Directive 89/299/EEC,
- Articles 12 (5), 13 (3) and 15 (2) and the fifth indent of the first subparagraph of Article 18 (2) of Directive 89/646/EEC,
- Article 3 (3) of Directive 89/647/EEC.
3. In Article 1, point 5, of Directive 89/646/EEC and the first indent of Article 2 (1) of Directive 89/647/EEC, the definition of competent authorities shall be replaced by the following:
'the national authorities which are empowered by law or regulation to supervise credit institutions'.
Article 11
This Directive is addressed to the Member States. Done at Luxembourg, 6 April 1992.
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COMMISSION DECISION
of 20 May 2008
concerning aid granted by France to the Fund for the prevention of risks to fishing and fisheries undertakings (State aid C 9/06)
(notified under document number C(2007) 5636)
(Only the French text is authentic)
(Text with EEA relevance)
(2008/936/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 the parties concerned to submit their comments under that Article,
Whereas:
1. PROCEDURE
(1)
The Commission was aware of information relating to the existence of a fund intended to compensate for the rise in the price of fuel affecting French fisheries undertakings since 2004. According to that information, the declared objective of the fund, called the Fund for the prevention of risks to fishing (FPAP), was to even out short-term variations in the price of fuel for the fishing industry, but in practice it enabled the undertakings to benefit from a fuel price much lower than the market price.
(2)
Apparently it was planned, at the beginning, for the Fund to operate solely on the basis of contributions from the trade. The operating principle would have been simple: the Fund would have borne that part of the cost of fuel higher than a specified reference price per litre and, in return, the undertakings would have paid contributions to the FPAP when the price of fuel fell back to below the reference price. In this way, a balance for financing the system would have been struck without there being any contribution from public funds.
(3)
However, since the market price for fuel always stayed very considerably above the reference price, the Commission took the view that operation of the FPAP was only possible as a result of the financial contribution from the State and that that financial contribution constituted State aid within the meaning of Article 87 of the EC Treaty.
(4)
On 25 August 2005 the Commission requested France to inform it, by 5 September 2005, whether specific measures had been adopted or were envisaged by the State to counter the increase in fuel costs. The Commission also pointed out that if such measures involved State aid it had to be notified of them under Article 88(3) of the Treaty.
(5)
In the absence of a reply, and in accordance with Article 10 of Council Regulation (EC) No 659/1999 of 22 March 1999 laying down detailed rules for the application of Article 93 (now Article 88) of the EC Treaty (1), on 21 September 2005 the Commission requested France to provide it, within three weeks, with information on the Fund in order for it to be able to examine whether it actually involved State aid and, if so, whether or not that State aid was compatible with the common market.
(6)
On 7 October 2005 France replied to the Commission’s request of 25 August 2005, stating that ‘no measure under the State aid scheme has been implemented in France to counter the difficulties due to the recent considerable increase in the price of fuel’. However, France pointed out that it had encouraged ‘an initiative taken by the trade’ consisting of the creation of a fund for the prevention of risks to fishing. No mentioned was made in that correspondence of the advance payments granted by the State. On the contrary, it was implicit from the French authorities’ reply that the financing of the Fund, managed by the trade, was based exclusively on the pooling of the members’ financial capacity.
(7)
On 21 October 2005 the Commission reminded the French authorities of its formal request for information on the FPAP of 21 September 2005, granting them a new two-week deadline.
(8)
In the absence of a reply from France within the time limit set, the Commission decided, in accordance with paragraph 3 of Article 10 as referred to above, to issue France with an injunction to provide the information necessary for the examination. That injunction, dated 5 December 2005, was sent on 6 December 2005 with a three-week deadline for reply.
(9)
France replied by letter dated 21 December 2005 and received by the Commission on 27 December 2005. That letter referred back to a previous reply, dated 6 December and received on 8 December, sent in reply to the Commission’s letter of 21 September 2005 (see recital 5 of this Decision). In those two letters France forwarded the Commission the FPAP’s articles of association and the three agreements on the introduction of a repayable State advance to the FPAP.
(10)
After examining these replies and the documents enclosed, on 8 March 2006 the Commission informed France of its decision to initiate the formal investigation procedure provided for in Article 88(2) of the EC Treaty and Article 6 of Regulation (EC) No 659/1999.
(11)
The Commission decision to initiate the formal investigation procedure was published in the Official Journal of the European Union of 19 April 2006 (2). The Commission called on interested parties to submit their comments on the measures in question within one month.
(12)
France submitted its comments on 21 April 2006 in the form of a note from its authorities. That note is accompanied by a list of defensive points which seems to have been originally intended for internal use; the list explains the position to be taken vis-à-vis the Commission’s arguments.
(13)
On 17 May 2006 Ménard, Quimbert et associés, a law firm in Nantes (‘MQA’ in the following) sent a fax indicating their intention to make comments on behalf of the FPAP at a later date, and accordingly requested that they be granted time to do so. The Commission accepted an extension of two weeks. MQA then forwarded, by ordinary post dated 17 May received by the Commission on 23 May, a statement under the letterhead of Coopération Maritime signed by Mr de Feuardent, the Secretary-General of the FPAP, dated 18 May. A third letter from MQA, also dated 17 May and received by the Commission on 14 June, was ‘a new version of [its] comments following correction of a number of clerical errors’. In reality these were documents not previously forwarded to the Commission comprising additional comments to the statement by Mr de Feuardent referred to above, accompanied by a number of documents relating to the operation of the FPAP (articles of association, rules of procedure, information notes, tax treatment of contributions, and a letter relating to a joint audit by the Inspectorate-General for Finance and the Inspectorate-General for Agriculture and Fisheries). Finally, the last letter from MQA, dated 12 June 2006 and sent to the Commission the same day by fax, following on from its letter of 19 May ‘dated 17 May by mistake, sending [you] the comments made by Mr de Feuardent, Secretary-General of the Confédération de la Coopération, de la Mutualité et du Crédit Maritime, dated 18 May 2006’ contained the same additional comments as those sent by the third letter of 17 May, but without the accompanying documents.
(14)
On 14 June 2006 the Commission sent France the third letter from MQA of 17 May 2006 (the version announced as correcting the clerical errors) and MQA’s last letter of 12 June 2006, requesting France to send its comments to reach it within one month. On 12 July 2006 France requested an extension of the deadline to 1 September. On 18 July 2006 the Commission accepted an additional period of one month. On 26 September 2006 France replied that it had no particular comments to make, but pointed out that the MQA letter of 17/19 May 2006 did not tally with Mr de Feuardent’s comments. On 9 October 2006 the Commission gave France details of the correspondence received from MQA and requested it to confirm within ten days that the French authorities had indeed been aware of Mr de Feuardent’s statement. France replied on 23 October 2006 that it did not have the statement, which it had in fact only mentioned previously because the letter (from MQA) dated 12 June mentioned it. Since France stated that it had not received that letter, the Commission officially sent it a copy on 27 October 2006, requesting any comments that France had to be sent to it by 15 November.
(15)
On 27 November 2006 France informed the Commission that it did not have any particular comments to make on the document.
2. DESCRIPTION
2.1. Presentation of the FPAP and its activities
(16)
In accordance with the French act of 21 March 1884, as amended by the act of 12 March 1920, the FPAP is constituted in the form of a trade association. The draft articles of association were approved by the constituent assembly held on 10 February 2004 and the articles of association themselves are dated 9 April 2004.
(17)
According to the articles of association (Article 4), the association has been set up for a period of 99 years. Its seat is in Paris at: 24, rue du Rocher, i.e. the same address as the Confédération de la Coopération, de la Mutualité et du Crédit Maritime (‘Coopération Maritime’ in the following).
(18)
Under Article 7, the founding members are the Coopération Maritime, the central contracting and development agency Cecomer, the retail traders’ cooperative society, which is in fact the central contracting agency of the maritime cooperatives whose function is, in particular, to supply equipment and operating material for fisheries undertakings, the Small-Scale Fishery Management Centre, and two persons active in the fishing industry. At the constituent assembly on 10 February 2004 these five founding members were appointed administrators of the FPAP until the ordinary general meeting to be held in 2007. Thus the FPAP appears to have been set up by the fisheries sector and organisations commercially involved in it (maritime cooperatives, central contracting agency and fisheries undertaking management centres).
(19)
Applicants for membership must provide proof that they are active in the fishing industry. However, the association may take in ‘any other person willing to give their moral support to the association’, provided that the number of employees of this category of member does not exceed 5 % of the number of the association’s members. In its letter of 6 December 2005 France points out that the FPAP has 2 013 members and 2 385 vessels, accounting for 30 % of the French fleet.
(20)
Article 2 of the articles of association states that: ‘The purpose of the association is to develop products so as to enable fisheries undertakings to cover the following risks: fluctuations in the price of diesel, maritime pollution or health risks linked to pollution, the closure of quotas or a significant reduction in fishing opportunities, and market risks. Its title shall be the Fund for the prevention of risks to fishing’. The FPAP is thus designed to be a mutual insurance company providing a number of benefits for its members in exchange for their contributions.
(21)
France forwarded copies of three agreements concluded between the State and the FPAP relating to the introduction of repayable advances to the Fund by the State. The advances are paid via the Office national interprofessionnel des produits de la mer et de l’aquaculture (Ofimer). The first agreement, dated 12 November 2004, covers an amount of EUR 15 million; the second, dated 27 May 2005, an amount of EUR 10 million; and the third, dated 11 October 2005, an amount of EUR 40 million. According to these three agreements, an amount of EUR 65 million was therefore advanced to the FPAP.
(22)
According to the list of defensive points enclosed with the note from France of 21 April 2006 (see recital 12 of this Decision), it is also possible that another advance of EUR 12 million was paid to the FPAP (see recital 40 of this Decision).
(23)
According to Article 1 of these agreements, ‘the FPAP shall operate on the basis of contributions paid by its members in order to cover the setting up of financial cover against the risks resulting from fluctuations in the price of oil and the associated administrative costs’. The agreements show that, although under its articles of association it is formally conceived as having quite a wide range of objectives as regards the benefits that it may provide (see recital 20 of this Decision), in reality the FPAP restricted its activity to providing financial cover for fisheries undertakings against the rise in the price of fuel.
(24)
Under Article 2 of the agreement of 12 November 2004, ‘the purpose of the advance shall be the setting up of a cover mechanism against fluctuations in international oil prices from 1 November 2004; the advance will enable financial options to be acquired on futures markets. The compensation paid to members of the Fund shall correspond to the difference in price between the maximum price covered and the average monthly price in the reference index for the month under consideration’. Article 2 of the agreement of 27 May 2005 is drafted almost identically: instead of the ‘setting up’ of a cover mechanism, it provides for the ‘continuation’ of this mechanism and it gives 1 March 2005 as the date from which cover will be provided for advances paid under this agreement. The same applies to the agreement of 11 October 2005; Article 2 provides that, for the advance paid, the Fund is to continue providing cover ‘… from 1 July 2005 and until 31 December 2005 at least, by buying financial options on the futures markets, up to 17 euro cent/l’. It states that ‘the compensation paid to members of the Fund shall be equivalent, at most, to the difference in price between a price of 30 euro cent/l and the average monthly reference price for the month under consideration, where the latter is higher than 30 euro cent/l’.
(25)
The detailed rules of procedure of the FPAP show that this cover mechanism operates by means of guarantee agreements between the FPAP and its member undertakings. Members pay a registration fee of EUR 150 plus a guarantee contribution based on an estimated quantity of fuel expressed in litres at a rate of 0,035 cent per litre of fuel. In return, the fisheries undertakings receive an allowance determined on the basis of the volume consumed, up to a maximum of the volume insured. The method of calculating the allowance is detailed in the rules of procedure.
(26)
Article 3 of the agreements referred to in recital 21 states that advances may be paid by Ofimer only after certain supporting documents have been provided. These must include the minutes of the FPAP’s governing body authorising management of the State advance and, in the case of the first two agreements, detailing the use to which the advance is to be put, and a forecast budget. In its note dated 6 December 2005 France confirmed that the amounts indicated, covering a total of EUR 65 million, were actually granted to the FPAP. That note specifies that these advances are granted ‘to ensure the operation of the FPAP, as soon as possible, for the period November 2004 to the end of December 2005’.
(27)
In addition, the FPAP undertakes to keep accounts so that, on request, information on how the advances have been used and resources and expenditure have been allocated can be obtained. The accounting documents must be kept for ten years and must be made available to the various State bodies on request.
(28)
Article 4 sets the interest rate at which the FPAP is to repay the advances to Ofimer at 4,45 %. The amount of EUR 15 million covered by the agreement of 12 November 2004 has to be repaid by 1 November 2006, the EUR 10 million covered by the agreement of 27 May 2005 by 1 May 2007, and the EUR 40 million covered by the agreement of 11 October 2005 by 1 July 2007.
(29)
In view of the three (possibly four) agreements signed between the French State and the Fund, FPAP’s activity within the framework of the first of the objectives set out in Article 2 of the articles of association (to enable fisheries undertakings to cover the risks relating to the fluctuation in the price of diesel) is therefore two-fold:
(a)
to counter fluctuations in the price of oil by acquiring options on the futures markets in the petroleum products sector; and
(b)
to partially compensate for the additional cost induced by high oil prices for the vessels of Fund members where the fuel price exceeds a certain threshold.
(30)
As regards State aid, the Fund must be considered under these two aspects, on the one hand where it acts as an economic operator on futures markets, and on the other where it compensates fisheries undertakings for part of the costs incurred in fuel purchases with the aim of reducing their running costs.
2.2. Reasons for initiating the formal investigation procedure
(31)
The reasons for initiating the formal investigation were as follows.
2.2.1. Regarding the acquisition of options on futures markets
(32)
The advance paid to the FPAP can be regarded as a short-term loan at a rate of 4,45 %. However, the Commission notes that the Fund has no real estate and that its current assets are extremely small because they only come from its members’ contributions. This is why a bank would never have granted such a loan.
(33)
As a result, the Fund is at a financial advantage compared to other undertakings active on the same futures markets. That advantage constitutes State aid for the Fund. None of the provisions of Article 87 of the EC Treaty or the guidelines which the Commission has adopted for assessing State aid schemes allows it to be regarded as compatible with the common market.
(34)
In addition, as a result of this activity, the FPAP’s member fisheries undertakings can buy fuel at reduced prices. This constitutes aid which results in a reduction of running costs for the undertakings covered by the Fund. However, in accordance with paragraph 3.7 of the Guidelines for the examination of State aid to fisheries and aquaculture (3), this type of operating aid, which is not accompanied by any obligation, must normally be regarded as being incompatible with the common market.
2.2.2. Regarding compensation for fisheries undertakings of part of the costs incurred in the purchase of fuel
(35)
Here also, the aid results in a reduction of running costs for the FPAP’s member undertakings. In the same way, none of the provisions of Article 87 of the EC Treaty or the guidelines which the Commission has adopted for assessing State aid schemes allows it to be regarded as compatible with the common market. Likewise, in accordance with paragraph 3.7 of the guidelines for the fisheries sector, this type of operating aid, which is not accompanied by any obligation, must be regarded as being incompatible with the common market.
2.2.3. Conclusion
(36)
In view of all the information in its possession, the Commission took the view that there were serious doubts about the compatibility with the common market of this aid scheme, which benefits both the FPAP itself and its member fisheries undertakings.
3. COMMENTS MADE BY FRANCE AND THE PARTIES CONCERNED
3.1. Comments made by France
(37)
The comments made by France are set out in the reply of 21 April 2006. After that date no additional remark was made on the arguments developed by the FPAP and MQA.
(38)
France points out that the Commission’s analysis should concentrate on the nature of and the conditions for granting the advance authorised by the State and not on FPAP’s activities.
(39)
In this respect it observes that:
-
the applicable rates are higher than the reference rates laid down by the Commission to establish the existence of State aid in soft loans,
-
the scheme cannot be regarded as State aid as long as the repayment deadlines have not passed. In this respect France points out that these deadlines were set at 1 November 2006, 1 May 2007 and 1 July 2007 respectively,
-
the Commission’s argument, according to which no bank would have granted such an advance to the FPAP, has no foundation, because guarantee mechanisms could have been introduced. France also points out that the FPAP is the only French trade organisation made up of fisheries undertakings with the objective of acting on the oil futures market and that membership of the Fund is free.
(40)
The Commission also notes that, in the list of defensive points enclosed with its reply (see recital 12 of this Decision), France indicates that ‘it does not appear necessary to point out that it was decided to pay an advance of EUR 12 million, since to date the agreement has not been signed. Nevertheless, we should not box ourselves into a corner. It is proposed that it should be pointed out that this is being considered’.
3.2. Comments made by the FPAP
(41)
The Commission received several letters from MQA with various contents and sent in a disordered fashion (see details at recital 13 of this Decision), which may be summarised as follows: a statement under the Coopération Maritime letterhead dated 18 May 2006 signed by the Secretary-General of the FPAP, and additional comments by MQA on behalf of the FPAP, accompanied by a number of documents relating to the operation of the FPAP (articles of association, rules of procedure, information notes, tax treatment of contributions, and a letter relating to a joint audit by the Inspectorate-General for Finance and the Inspectorate-General for Agriculture and Fisheries).
(42)
An analysis of the documents received from MQA shows that the FPAP endorses the arguments made by France, pointing out that one cannot prejudge ‘the pure and simple cancellation of the debt on its expiry date’ as long as no repayment default has been established. On the other issues, unlike France, the FPAP concentrates its arguments not on the nature of and the conditions for granting the aid, but on the Fund’s articles of association and its activities.
(43)
The main arguments put forward by the FPAP to dispute the claim that the advances granted by France constitute State aid and are incompatible with the common market may be summarised as follows:
-
the FPAP is not an ordinary economic operator, because it is a trade association acting exclusively in the interest of its members with no profit motive and set up as a ‘prevention group’. Thus, when it organises the pooling of risks with a compensation system based on a reference price, it is not acting as an ordinary commercial operator, ‘but as a union of consumers of petroleum products seeking more to protect themselves against the market that to operate on it’. Initially it was designed to be self-sufficient in theory since it was envisaged that contributions paid in but not used could be reimbursed. The FPAP also points to the total transparency of its management: in this respect, since it does not carry out any economic activity for its own account, it cannot have any impact on the relevant futures market. The FPAP also points out that a joint audit is carried out by the Inspectorate-General for Finance and the Inspectorate-General for Agriculture and Fisheries,
-
the FPAP does not act on a relevant market, because the market in fishery products is exposed to numerous other distortions of competition resulting from the various national policies for implementing the common fisheries policy. The market must therefore be seen as a ‘mosaic of regional micro-markets’. This intervention therefore does not affect trade conditions. The FPAP also points out that the assessment of competition must be seen in context because a major part of the increase in and distortion of the costs affecting the fishing industry is due to ‘tolls’ or ‘penalties’ resulting in particular from Community measures, which is far from the image of a large, open market.
(44)
In fact, the FPAP’s intervention is aimed at facilitating the maintenance of fishing within a regional framework and preventing deep-sea vessels from falling back on closer grounds or trawlers from targeting more specific and less energy-consuming fisheries. Its aim is to protect resources, maintain balance and safeguard the diversity of the system by means of a phase of adaptation. In this way, the FPAP anticipated the recovery and restructuring plans and the planned raising of the ceiling for de minimis aid. For these reasons, the FPAP puts forward the following arguments:
-
it is not accurate to say that the advances granted by the State were without any conditions attaching. On the contrary, they ‘were subject to the condition that there was immediate transparent management [and] above all that a sustainable policy was laid down which was subject to general inspection’,
-
just above one third of its intervention (EUR 25 million out of EUR 65 million) related directly to advances to employees and can be regarded as direct social assistance,
-
the aid is the result of an extraordinary situation since the Commission itself acknowledges the sector’s exceptional economic and social difficulties,
-
the FPAP points out that it bears civil liability under French law and that its liability is unlimited. For this reason, given the lack of default on repayment, the criterion applied by the Commission to regard this assistance as State aid is insufficient.
(45)
Lastly, together with its comments MQA forwarded copies of two letters from the minister responsible for the budget to the FPAP showing that the FPAP and all its members benefit from tax schemes. In the case of the FPAP these consist of exemption from corporation tax and, probably, business tax and, in the case of fishermen-owners, the possibility of deducting the contributions paid to the trade association from their taxable income.
4. ASSESSMENT
(46)
This Decision does not relate to the tax advantages referred to in recital 45, since the Commission was not aware of them at the time it decided to initiate the formal investigation procedure. Those tax advantages are the subject of a special assessment, under case number NN 38/07, to determine whether they constitute State aid and, if so, whether that aid is compatible with the common market.
(47)
In relation to State aid, the objective of the FPAP has to be considered in two ways:
-
firstly, it is aimed at acquiring financial options on the futures markets. Although this is not explicitly stated, those futures markets are obviously the markets for oil or oil by-products. Thus the FPAP, while being constituted as a trade association, operates on these futures markets by acquiring options, as any ordinary private company active on this kind of market and operating according to the rules of the market economy would do. The aid for the acquisition of options on the futures markets is assessed later on in Section 4.1 of this Decision;
-
secondly, the FPAP is aimed at paying to its member fisheries undertakings the difference between the average monthly reference price and, according to the agreements of 12 November 2004 and 27 May 2005, the ‘maximum price covered’ or, according to the agreement of 11 October 2005, a price of 30 euro cent per litre if the average monthly price in the reference index is higher than that price. The average monthly reference price is laid down by the FPAP. The compensation paid by the FPAP to the fisheries undertakings for the purchase of fuel is analysed later on in Section 4.2 of this Decision.
4.1. Aid for the FPAP: aid for the acquisition of options on the futures markets
4.1.1. Existence of State aid
4.1.1.1. The FPAP is an undertaking within the meaning of Article 87 of the EC Treaty
(48)
It is essential in the first place to establish whether the FPAP can be regarded as an undertaking. If that is not the case, Article 87(1) does not apply to the FPAP. On this question, the Commission points out that, as has been consistently held in case law, in the context of competition law the concept of an ‘undertaking’ covers any entity engaged in an economic activity, regardless of the legal status of the entity or the way in which it is financed (4). Any activity consisting in offering goods and services on a given market is an economic activity (5).
(49)
Companies active on the futures markets for raw material products are usually private companies functioning according to the rules of the market economy. The aim of operations carried out on these futures markets is, for the operator, to bet on the expectation that the purchase price of the product, if it is acquired in the future at the normal market price, will be different from the price at which the option is subscribed. Thus, an operator active on such a market takes a risk because of the uncertainty of price changes. In the case in point, the FPAP actually acted as an operator on the futures markets for petroleum products. By doing this, it is also an economic operator in the fisheries sector, since it provides the Cecomer company, a founding member and administrator of the FPAP and the central contracting agency for maritime cooperatives, with fuel at a price different from that which that company would buy at the normal market price. If the operation to acquire options, which is an operation of a speculative nature, is successful, the price of the fuel resold to the cooperatives is lower than the market rate. The FPAP thus takes a risk, hoping that it will be able to draw financial advantage from it. The maritime cooperatives, for their part, then sell on their fuel to the fisheries undertakings at a price depending on the price at which they were able to acquire it from Cecomer. The characteristics of the operations for transferring ownership of the fuel acquired by the FPAP to Cecomer, the retail traders’ cooperative society, are not known. However, and although Cecomer is a founding member of the FPAP, this involves operations carried out between two independent entities. These fuel ownership transfer operations are of a contractual nature. This is because, although they probably display specific characteristics, the agreements under which these operations are carried out are nonetheless private-law agreements and consequently private-law contracts. The FPAP’s activity, thus consisting of intervention on the futures markets for petroleum products in order to buy those products with a view to selling them on to Cecomer, a commercial company, is evidently an activity of an economic nature. Also, in its Decision to initiate the procedure, the Commission observed that: ‘The purpose of the FPAP is to enable the acquisition of financial options on the futures markets. Although this is not explicitly stated, those futures markets are obviously the markets for oil or oil by-products. Thus the FPAP, while being constituted as a trade association, operates on these futures markets by buying and selling options, as any ordinary private company active on this kind of market and operating according to the rules of the market economy would do’. In their replies, France and the FPAP did not dispute the fact that the FPAP undertook such operations of buying and selling options. France does not make any comments on this. As regards the FPAP, it merely points out that ‘the FPAP operated on the world commodities market with specialised brokers or financial institutions. It is difficult to imagine a more competitive, more extensive or more volatile market. Consequently, the Fund did not enjoy any tariff advantage, nor any special conditions vis-à-vis all the other operators on the market…. The question therefore comes down to the source of the funds advanced…’. It therefore does not question the Commission’s claim that it acts as an ordinary operator on these futures markets. It should also be noted that the function of the FPAP is by no means that of a public fund administrator acting in the public interest. Neither can it be regarded as an instance of the exercise of public power prerogatives by the State or by a body under its responsibility.
(50)
Therefore the FPAP must clearly be regarded as an undertaking within the meaning of Community competition law. There is no need to study its characteristics or articles of association. In particular, the fact that it may be non-profit-making is of no relevance. Also, even if were regarded, to use the FPAP’s own terms, as a ‘union of consumers of petroleum products seeking more to protect themselves against the market that to operate on it’, these ‘consumers’ are in fact economic operators (maritime cooperatives and fisheries undertakings) seeking to reduce their running costs. However, this reaction, which is perfectly logical on the part of economic operators, means that the operators cannot be regarded as individual consumers within the meaning of Article 87(2)(a) of the Treaty, which authorises aid of a social character granted to them. Therefore, the arguments put forward by France or the FPAP itself relating to its articles of association, its rules of procedure, its objectives or its specific situation on the petroleum products market cannot be accepted.
4.1.1.2. The private creditor principle (6)
(51)
The Commission takes the view that, in this case, it is justified to assess the existence of State aid by applying the private creditor principle.
(52)
The funds coming from the three advances, for which the grant conditions are known, had to be repaid at an interest rate of 4,45 %. As regards the possible fourth advance, of an amount of EUR 12 million, it may be assumed that it was granted under identical or very similar conditions. This State contribution therefore corresponds in practice to a loan granted at that rate. Admittedly, that rate is higher than the reference rate used by the Commission to determine the element of aid existing in a soft loan, which was 4,43 % in 2004 (7) and has been 4,08 % since 1 January 2005 (8). Consequently, in theory, it is possible that there was no State aid in the advances granted if it was granted on normal market-economy terms.
(53)
However, the Commission takes the view that the advances were not granted on normal market-economy terms insofar as no private creditor would have agreed to grant the amounts in question in the absence of a guarantee of the viability of the FPAP’s activity and the probability of recovery by the expiry date.
(54)
The FPAP’s start-up capital is made up of its members’ contributions (see recitals 23 and 25). Neither France nor the FPAP have provided figures of the resources obtained from these contributions. Also, according to the list of defensive points enclosed with the reply of 21 April 2006, after stating that ‘when the reply of 6 December 2005 was being drafted, this information was proposed in the draft but was deleted during the interministerial check’, the French authorities take the view that ‘it is not necessary to give a reply now’.
(55)
Nevertheless the Commission supposes that these are relatively modest amounts compared to the probable extent of the expenditure, since, on the basis of the information given in the statement signed by the Secretary-General of the FPAP, the ‘Detailed Rules of Procedure of the FPAP’ of November 2004 and the ‘information note from the FPAP’ of January 2006, a rough estimate can be made: approximately 2 500 members (the number of members of the FPAP according to the French authorities) pay a membership fee of EUR 150 each, i.e. EUR 375 000, to which the contributions covering the guarantee risk proper (see recital 25) must be added. Assuming that the entire volume of diesel consumed is covered, and based on the indicative consumption of a 24-metre trawler as reported by the FPAP (approximately 10 tonnes of fuel per week), and assuming activity for a maximum of 48 weeks a year, i.e. a consumption of 480 tonnes (although the number of weeks of activity is probably closer to 38 to 40 than 48), and the unit value of the contribution to the FPAP, i.e. EUR 0,0035 per litre, the figure arrived at for 2 500 vessels is a total of EUR 4 200 000 per year. The third source of contributions comes from the possibility, as provided for in the articles of association, for the association to take in ‘any person willing to provide moral support for the trade association’, up to a maximum of 5 % of the number of members. This is probably a marginal amount. In the absence of any indication of the number of such members willing to provide moral support and the amount that they contribute, we will assume, as a very generous estimate, additional revenue of about EUR 125 000 (125 members whose activities do not relate to fishing, i.e. the maximum permitted by the FPAP’s articles of association (5 % of 2 500 members) × EUR 1 000).
(56)
Thus the total revenue from the various contributions would amount to EUR 4 200 000 + EUR 375 000 + EUR 125 000, i.e. EUR 4 700 000 per year. This is an extremely optimistic assumption, calculated on the basis of an indicative consumption of a 24-metre trawler operating for 48 weeks a year, and on the assumption that all the fuel consumed is covered. The Commission is only taking it to find out what the theoretical maximum amount of revenue for the FPAP could be. However, if we consider that France indicates that the number of member vessels is 2 385, including a considerable proportion of coastal vessels of less than 12 metres, whose annual fuel consumption is closer to 200 tonnes that the 480 tonnes used in the above calculation, it is probable that the actual amount is significantly less. This is because, since the French fleet comprises approximately 1 500 vessels of more than 12 metres and 95,3 % of the vessels of that size are covered by the FPAP (9), i.e. approximately 1 400 vessels, it can be deduced that approximately 1 000 vessels of less than 12 metres are also covered by the FPAP. It is therefore highly certain that the total annual revenue is below this amount of EUR 4,7 million.
(57)
Following calculation of this hypothetical revenue, the Commission observes that the FPAP, on the one hand, apparently has no real estate and that, in addition, its current assets, made up only of its members’ contributions, are very small. For this reason, the Commission takes the view that, under normal market-economy conditions, a bank, such as Crédit Maritime, for example, which describes itself in its own terms as ‘the natural partner of the fishing industry’, would never have lent (or ‘advanced’ to use the terms of the agreements concluded between the State and the FPAP) the amounts in question (or even only part of the amounts) to the FPAP to operate on a futures market, without having obtained reasonable assurance beforehand of its probable solvency on expiry of the loan.
(58)
France objects, claiming that this conclusion is ‘an allegation not based on any precise survey of banking organisations, and that a system of securities could have been set up’. However, a survey carried out by the Chambre nationale des conseils et experts financiers (National chamber of financial advisers and experts) (10) at thirty-five banks provides a fairly accurate picture of the standards applied in French financial institutions when granting loans to their customers. To limit their credit risk vis-à-vis their customers, the management of financial institutions requires compliance with standard ceilings based on a number of ratios allowing the financial health of the undertaking and its ability to serve its debt to be assessed, according to various criteria such as its own funds, balance sheet, the level of long-term indebtedness, turnover and financial costs. It follows from this analysis in particular that a ratio of ‘total banking debt to own funds’ higher than 2,50 triggers a risk indicator which, although it does not totally compromise the granting of a loan leads the establishment to take increased securities. In the case of the FPAP, if the EUR 65 million in advances are set against the optimistic estimate of its own funds set out above (EUR 4,7 million, see recital 56), the ratio is 13,82, i.e. almost six times the maximum risk. Of course, if the actual amount of the advances were higher (EUR 77 million, taking into account the possible additional advance of EUR 12 million referred to in recital 22), or if the actual amount of own funds were appreciably smaller, this hypothetical ratio would increase further. With such a risk level, a bank would never have considered granting a loan, even though the use of real securities (such as pledging the purchase options or the fuel stocks acquired by the FPAP as collateral) or personal securities (taking out a mortgage on the members’ personal assets and pledging their vessels as collateral) is in fact one of the methods used by banks to minimise the risk of insolvency. However, it will be observed that, if the personal securities of the members were liable to be claimed, the fisheries undertakings would probably have been more reluctant to become members of the FPAP. There are also other client risk transfer or sharing methods, such as part-financing the loan by several banks, the use of guarantee companies or subscribing to regional or departmental guarantee funds (as a rule themselves counter-guaranteed by guarantee companies) but, in all cases, a guarantee is generally extended only to basically healthy and potentially profitable undertakings, and only ever up to an amount not exceeding 50 % of the debt (i.e. in the case of the FPAP, an amount of slightly more than EUR 30 million, leaving a residual risk of almost three times the maximum risk).
(59)
When France comments on these methods, saying that security systems ‘could have been’ set up, it implicitly admits that they were not set up in this case and that the State advance was granted without securities comparable to those in use by banks being sought. Under these circumstances, the Commission concludes that France did not behave like a private creditor and that it did not have any security that the FPAP was in a position to repay the funds placed at its disposal.
(60)
In addition, the FPAP, through its Board, points out that it bears civil liability under French law and that this liability is unlimited, noting that trade association action may entail responsibility for large amounts. The Commission admits that very large amounts may be at stake, with an organisation like the FPAP where the operations undertaken on the futures markets present undeniable risks and may involve significant losses. That being so, there is nothing to say that the FPAP’s liability in the event of significant losses will be covered by its members. None of the documents provided (articles of association, rules of procedure or information note) refers to such a mechanism. The only financial consideration appearing in these documents relates to the contribution, for which it is indicated that it is forfeited to the trade association when a member steps down (Article 10). The Commission also observes that the act of 21 March 1884, under which the FPAP was set up, is the act which has allowed the creation of trade associations in France. It is certainly not in the spirit of such an act to entail the commercial, and therefore financial, liability of the members of the trade association concerned. As a result, in the event of major financial losses, the Commission does not see how the losses can be compensated by its members.
(61)
Taking all of the above factors into account, the Commission takes the view that the private creditor principle has not been complied with.
4.1.1.3. Existence of a financial advantage granted by means of State resources
(62)
The Commission takes the view that, even in the case of the higher assumption, the estimated amount of revenue from the various member contributions would never have enabled the FPAP to operate on a futures market without the assistance of external funding. This external funding was provided by the State, via Ofimer, in the form of at least three advances spread out between November 2004 and October 2005, covering a total amount, according to the information forwarded by France, of EUR 65 million. A fourth advance of EUR 12 million was probably also paid, since the list of defensive points quoted in recital 22 implies that the agreement was in the course of being signed at that date.
(63)
France has not submitted any evidence contradicting this assessment. The list of defensive points also states: ‘As regards its funding, the FPAP is considered [by the Commission] not to be able to operate without the repayable State advance. No argument can be put forward against this’. In addition, for the Commission, the advances were granted under conditions which are not normal market conditions (see recitals 51 to 61 of this Decision).
(64)
Also, the Commission observes that neither France nor the FPAP have given it any indication of the amount of funds invested by the FPAP on the futures markets, or of the result of the transactions carried out on them. Again, according to the list of defensive points, the French authorities deliberately chose not to submit this information, since it states that ‘… this information could be provided to the Commission. However, the advisability of providing such information now must be gauged’. The Commission notes that it did not receive such information, neither in that letter nor at a later date.
(65)
Lastly, France and the FPAP and its Board take the view that the Commission cannot prejudge the existence of State aid as long as no repayment default has been established (France: ‘the repayable advance cannot be regarded as State aid as long as the repayment deadline has not fallen’; FPAP: ‘Can this amount be repaid or not? That is the main question being asked by the Commission’; MQA: ‘None of the loans to the FPAP granted by France has expired. At this stage there is no repayment default nor any indication by the French government suggesting that the debt will be purely and simply cancelled on expiry’). The Commission would point out in this respect that regarding the aid to the FPAP as State aid is first and foremost the result of the French Decision to grant a loan to the FPAP that it would not otherwise have obtained, even if the repayment deadlines had been met. The Commission questions the solvency of the FPAP on expiry of the loan because this question is at the core of the assessment of its situation in relation to the normal conditions for granting a loan by a private bank and not because it suspects that a loan has been transferred into straightforward financial assistance.
(66)
From this point of view, if it turned out that advances were not repaid within the time limits, or not repaid at all, this would confirm both that the FPAP was not in a position to perform the tasks provided for in its articles of association without external loans, and that it would never have been granted such assistance by a bank under normal market conditions. However, in this connection the Commission observes that France has not informed it of any repayment of advances granted to the FPAP. They had to be repaid on 1 November 2006 in the case of the advance of EUR 15 million covered by the agreement of 12 November 2004, 1 May 2007 in the case of the advance of EUR 10 million covered by the agreement of 27 May 2005 and on 1 July 2007 in the case of the advance of EUR 40 million covered by the agreement of 11 October 2005 (see recital 21). Regarding the fourth advance which the FPAP may have received (see recital 22), neither the date of the agreement nor the final repayment date are known.
(67)
The three known expiry dates have now passed. The first had even already passed when France sent its last letter to the Commission on 27 November 2006, after the Decision to initiate the formal investigation procedure. The Commission takes the view that, if this advance had actually been repaid, France or the FPAP itself would have informed the Commission without delay since one of the arguments put forward to counter the Commission’s assessment was that these advances could not be regarded as State aid as long as the repayment deadline had not fallen. There is no doubt that, if the first advance had been repaid, France would have informed the Commission of this in its letter of 27 November 2006 and would then have done the same for the second and third advances, which had to be repaid by 1 May and 1 July 2007, and for the possible fourth advance. What is more, the reports published in the trade press suggest that there has been no repayment up to now. Thus, the Commission takes the view that the aid initially granted in the form of an advance was transformed into aid in the form of a direct subsidy.
(68)
Consequently, for all the reasons set out above, the Commission considers that the State advances represent a financial advantage granted by means of State financial resources.
4.1.1.4. Existence of a financial advantage imputable to the State
(69)
The Commission observes that the three agreements concluded between the State and the FPAP expressly stipulate that the purpose of the public funds paid is the creation of a cover mechanism against fluctuations in international oil prices and that the mechanism will enable financial options to be acquired on the futures markets. However, it is obvious that the FPAP’s initial liquid assets, which were supplied only by its members’ contributions, could not have enabled it to undertake such operations, at least not on the scale to which they were. This is because the first agreement, dated 12 November 2004, indicates that the purpose of the advance of EUR 15 million was to ‘enable the mechanism to be started’. Therefore it was indeed thanks to these advances that the FPAP was in a position to undertake significant acquisition operations on the futures markets.
(70)
In other words, it appears that the State actively supported the creation of the FPAP, constituted as a trade association, and its involvement on the futures markets for petroleum products, although such an activity does not reflect the normal activity of a trade association, and that that activity was conducted in competition with private operators under competition conditions which are not normal. Also, France recognised, as early as 7 October 2005, that ‘the government has encouraged an initiative by the trade, i.e. the creation of a fund for the prevention of risks to fishing. This fund, managed by the trade, enables fishermen (…) to pool their financial capacity to buy financial options on the futures market to cover themselves against the risk of fluctuations in the price of fuel’, while omitting to state that the fishermen’s ‘financial capacity’ referred to was based on State resources, since two advances had already been paid by that date. However, there is no doubt that the FPAP had to take account of the requirements of the public authorities in deciding how to use the funds placed at its disposal. From this point of view, the introduction of an interministerial inspection with the remit of ‘auditing the FPAP mechanism in its current operation and checking that the conditions for expenditure are satisfactory as regards public-expenditure law and rules, while complying with the commitments entered into by the managers of the funding’ demonstrates the State’s concern to ensure that the FPAP’s funds were in fact used for the purpose laid down in the agreements.
(71)
Consequently, taking all of the above factors into account, the Commission takes the view that the financial advantage represented by the advances granted to the FPAP for the acquisition of financial options on the oil futures markets is imputable to the State (11).
4.1.1.5. Existence of a financial advantage which distorts or threatens to distort competition
(72)
The FPAP enjoys a financial advantage compared to the other companies operating on the futures markets, whether they are companies customarily active on these markets or companies which are or may be set up in the same way as the FPAP, in the form of a trade association in the other Member States or even in France itself.
(73)
France argues that ‘the FPAP cannot be regarded as receiving preferential treatment over other private organisations which could have played the same role because it is the only French professional organisation aimed at bringing together fisheries undertakings to buy options on the futures market’. In reply, the Commission observes that the FPAP’s position as regards competition rules should not be assessed solely vis-à-vis other French organisations made up of fisheries undertakings and playing the same role as it, but vis-à-vis all French and European operators that may be active on the futures market for petroleum products.
(74)
In addition, the FPAP disputes the claim that it enjoyed preferential conditions for carrying out its activity as investor on the futures market - in its own words: ‘the FPAP operated on the world commodities market with specialised brokers or financial institutions (…) [It] did not enjoy any tariff advantage, nor any special conditions vis-à-vis all the other operators on the market’. The Commission does not claim that the FPAP’s financial advantage arose from preferential treatment of the FPAP by the other actors of the market, but that the Fund could only operate on this market because it had a financial intervention margin granted by the State going beyond the FPAP’s own financial capacity, while the State did not grant it under conditions similar to other companies which may have had the same interest as the FPAP in operating on this market (undertakings in other sectors affected by the rise in the cost of oil, for example) or which operate on this market for reasons linked to their economic or commercial strategies (oil companies, for example).
(75)
Also, the FPAP recognises the existence of this advantage. In a document from the Confédération de la Coopération Maritime, not forwarded to the Commission but published on the website of the ‘Assises de la pêche et de l’aquaculture de la Région Bretagne’ (12), Mr de Feuardent, summarising the main points discussed at a meeting with the Region of Brittany on 24 May 2006, writes: ‘The State has granted assistance of EUR 65 million to date. Also, the FPAP has made a profit of several million euro on options on the commodities market, which is an undeniable value added’. The Commission concludes from this that the FPAP was only able to acquire financial options on the petroleum products market thanks to the public funds at its disposal but not at the disposal of other organisations or undertakings, and that it drew direct benefit from that. Consequently, the advantage which it enjoyed distorts or threatens to distort competition.
4.1.1.6. Existence of a financial advantage affecting trade between Member States
(76)
In having operated on the commodities market, as Mr de Feuardent indicates, the FPAP operated on the world oil market.
(77)
Its activity therefore went beyond a strictly French framework, so that the advances granted must indeed be considered as affecting trade between Member States.
4.1.1.7. Conclusion
(78)
Thus, the four requirements for establishing the existence of State aid are met: the advances paid to the FPAP come from State resources, they are imputable to the State, they distort or threaten to distort competition, and they affect trade between Member States. The aid enjoyed by the FPAP therefore does constitute State aid within the meaning of Article 87 of the EC Treaty as regards the part of its funding coming from State resources used for the acquisition of options on the petroleum product futures market.
4.1.2. Compatibility with the common market
(79)
As the agreements concluded between the State and the FPAP indicate, this State aid in the form of advances was aimed at enabling the FPAP to begin operating on the futures markets for oil and oil by-products and continue doing so. It is therefore operating aid for the FPAP. In its letter of 6 December 2005, France also recognises that the amounts indicated were advanced ‘in order to ensure the operation of the FPAP’.
(80)
Under Article 87(2) and (3) of the Treaty, certain categories of aid are or may be considered compatible with the common market. It should be examined whether the operating aid for the FPAP falls under one of these categories.
(81)
The Commission observes that this aid does not match any of the cases provided for in Article 87(2).
(82)
This is because it is not intended to make good damage caused by natural disasters or other exceptional occurrences. The Commission would point out in this connection that fluctuations in oil prices are inherent in economic activity. Fluctuations also affect other sectors of activity which consume petroleum products in all the Member States of the European Union and cannot be regarded as a natural disaster or an exceptional occurrence within the meaning of Article 87 of the Treaty. The aid is therefore not compatible with the common market under Article 87(2)(b) of the Treaty.
(83)
Nor can the aid be considered compatible with the common market on the basis of direct application of Article 87(3) of the Treaty, with the various cases provided for.
(a)
It is obviously not aid to promote the economic development of areas where the standard of living is abnormally low or where there is serious underemployment (the case provided for in Article 87(3)(a)). The aid is in fact intended to enable the FPAP to operate on the relevant futures markets. It is therefore not related to the aid referred to in Article 87(3)(a).
(b)
The FPAP cannot be regarded as an important project of European interest or aid to remedy a serious disturbance in the economy of a Member State (the cases provided for in Article 87(3)(b)). This is because the FPAP is specifically French and the other Member States did not express their intention to set up funds of the same kind. Therefore there is no European dimension to the Fund. As regards the consideration as to whether the aid is intended to remedy a serious disturbance in the economy of a Member State, the Commission observes that there is no evidence making it possible to say that providing money for a fund of this kind could bring about such a remedy. As regards the aid for the FPAP itself, the aid benefits only one economic entity and, even if it is linked to aid granted to fisheries undertakings, does not benefit the economy of a Member State as a whole. In addition, the Commission would point out that it has always taken the view that the public authorities should not intervene financially against the rise in the price of oil. On the contrary their role should be, in particular, pursuing incentive policies for undertakings so that they adapt to the new economic conditions created by the price increase. That is why aid aimed at making it possible for an economic entity to operate on the relevant futures markets does not match the desired objective.
(c)
The existence of the FPAP cannot, in itself, meet the requirements of Article 87(3)(c), which stipulates that aid intended to facilitate the development of certain economic activities or of certain economic regions may be compatible with the common market where it does not adversely affect trading conditions to an extent that is contrary to the common interest. There is no evidence that the development of or increase in operating on the oil futures markets is desirable. Moreover, that activity is not linked to an economic region. That is why the aid cannot be considered compatible with the common market under Article 87(3)(c).
(d)
Lastly, this kind of aid does not fall under the categories of aid which may be considered compatible with the common market by a Decision of the Council adopted in accordance with Article 87(3)(e).
(84)
The Commission also notes that none of the guidelines that it has adopted for assessing State aid applies to this operating aid for the FPAP.
(85)
In conclusion, therefore, the result is that the aid for the FPAP for the acquisition of options on the futures markets cannot be considered compatible with the common market under any of the exemptions permitted by the Treaty.
4.2. Aid for fisheries undertakings: reduction of expenditure on fuel
(86)
Before analysing the aid which led to the formal initiation of the investigation procedure, the Commission must give an opinion on the FPAP’s argument that the aid granted to itself and fisheries undertakings should be considered in the light of a raising of the de minimis threshold in the fisheries sector. According to the FPAP, the amounts in question (approximately EUR 16 000 per undertaking on average, excluding the aid which it regards as being direct social assistance for fishermen) is considerably lower than those which were in the process of being adopted at the time of payment of the compensation by the FPAP (EUR 30 000 per undertaking) (13). In their reply the French authorities also refer to the raising of the de minimis threshold but do not seek to apply it to this aid scheme.
(87)
First of all, the Commission points out that, under Article 3 of Commission Regulation (EC) No 1860/2004 of 6 October 2004 on the application of Articles 87 and 88 of the EC Treaty to de minimis aid in the agriculture and fisheries sectors (14), i.e. the provision in force at the time the aid was granted to fisheries undertakings, the maximum amount of de minimis aid was EUR 3 000 per undertaking over three years. The aid under consideration in this Decision considerably exceeds that amount and in its comments France did not mention any application of this ceiling to the undertakings which could have benefited from it. Moreover, even if the amount of EUR 30 000, which appears in Regulation (EC) No 875/2007 recently adopted by the Commission (15), is higher than the EUR 16 000 referred to above by the FPAP, that amount is only an average. In addition, France is wrong to arrive at this amount of EUR 16 000, since it excludes the part of the aid which it regards as social assistance and which has to be taken into account in the assessment (see recitals 122 and 123). Thus, given the differences in size of the FPAP’s member fisheries undertakings, it is certain that the amount of the aid granted to some undertakings is greater than EUR 30 000. For example, for trawlers from 20 to 25 metres, the annual amount of the allowance is around EUR 35 000, i.e. EUR 70 000 for the two years 2005 and 2006 (16). In any event, as indicated above, France did not seek application of the new de minimis ceiling and did not provide any evidence that it did so. Consequently, taking all of the above factors into account, in the context of the constant review of State aid schemes the Commission is obliged to verify compliance of this aid with the provisions of Article 87 of the Treaty.
4.2.1. Existence of State aid
(88)
France takes the view that the Commission has no valid reason to extend its assessment of the existence of State aid to this aspect of the Fund’s activities. According to France, ‘recognition of aid as State aid must be based solely on an ad hoc assessment of the repayable State advance and not on an assessment of the FPAP’s activities. Thus the French authorities request that only the first part (Part 3.1) of the assessment be developed. Part 3.2 amounts to a condemnation of the activities of the FPAP, which is a trade association purchasing options to cover its members against fluctuations in the price of diesel’ (17).
(89)
In reply, the Commission points out that, as has been consistently held in case law, aid is not characterised by its causes or objectives, but is defined according to its effects (18). In addition to acquiring financial options on the futures markets, the aim of the FPAP, according to the agreements concluded with the State, is to pay compensation to fisheries undertakings corresponding to the difference in price between the maximum price covered and the average monthly price in the reference index for the month under consideration. Consequently, the Commission takes the view that the fisheries undertakings enjoyed specific advantages as a result of the system set up by the FPAP and that it is necessary to analyse the effects of the advances granted by the State not only from the point of view of the advantage granted to the FPAP, but also from the point of view of the advantages granted to the fisheries undertakings.
4.2.1.1. Existence of a financial advantage granted through State resources
(90)
The advantage drawn by fisheries undertakings from the FPAP’s activities is two-fold: on the one hand it consists of the possibility of obtaining fuel at an advantageous price, and on the other of receipt of an allowance partially compensating for their expenditure on fuel.
(91)
As regards the first aspect, the acquisition of options on the futures markets by the FPAP, which then passed on the forward-bought fuel to the Cecomer company, the maritime cooperatives’ central contracting agency, enabled the FPAP’s member undertakings to buy fuel acquired by those cooperatives at a price lower than that on the ordinary market. But, as indicated above (see recital 75 of this Decision), this was possible only because ‘The State has granted assistance of EUR 65 million to date. Also, the FPAP has made a profit of several million euro on options on the commodities market, which is an undeniable value added’. The Commission therefore notes that the supply of fuel to fisheries undertakings at a price lower than that on the ordinary market was possible due to the advances granted by the State and the FPAP’s own resources, i.e. the product of its members’ contributions and the profits from speculative operations on the futures market for petroleum products.
(92)
The funds used to finance the compensation paid to fisheries undertakings also came from two sources (State resources and resources from the FPAP’s private activity).
(93)
As described in recital 24 of this Decision, the FPAP bears the difference in price that exists, under the agreements of 12 November 2004 and 27 May 2005, between the ‘maximum price covered’ and the average monthly price in the reference index and, under the agreement of 11 October 2005, between 30 euro cent per litre and the average monthly reference price if the latter is higher than 30 euro cent.
(94)
The ‘evening-out’ mechanism provided for was originally based on the assumption that the additional costs exceeding a reference price in times of high prices could be compensated by means of the contributions paid by the members in times of lower prices. Thus the system would be self-financing. Referring to Mr de Feuardent’s document already mentioned in recital 75 of this Decision, ‘technically the FPAP was able to take the first options from April 2004 onwards; at that time, Cecomer’s requirements (approximately 200 million litres) for 2005 could be met at 0,28 cent/litre, i.e. approximately EUR 4 million’. Thus, at the beginning of 2004 the FPAP could perhaps have covered the relatively modest needs of the ‘diesel insurance’ out of its own resources. It therefore appears that, as it was originally designed, the Fund could have been self-sufficient.
(95)
However, since oil prices stayed at a very high level and the FPAP’s membership expanded, it rapidly acquired a large number of members. The result was that the cost of this ‘diesel insurance’ exploded and could only be supported by using the advances granted to the FPAP by the State.
(96)
If we attempt to estimate the appropriations necessary for the FPAP to cover the expenditure on ‘diesel insurance’ for 2005, we can start from the assumption that the level of fuel consumption for which compensation was claimed by the fisheries undertakings probably increased from 200 million litres (see recital 94) to a volume that can be estimated at almost 900 million litres. This is because, if we take the averages for annual consumption which served as the basis for the calculations in recitals 55 and 56, the consumption of 1 000 vessels of less than 12 metres would be 1 000 vessels × 200 tonnes/vessel, i.e. 200 000 tonnes, and the consumption of vessels of more than 12 metres would be 1 400 vessels × 480 tonnes/vessel, i.e. 672 000 tonnes, which is in total 872 000 tonnes (or 872 million litres). In reality, as indicated in recital 55, if we consider that vessels fish for 38 weeks a year rather than 48, consumption is probably closer to 700 000 tonnes (1 000 vessels of less than 12 m × 158 tonnes, i.e. 158 000 tonnes and 1 400 vessels of more than 12 m × 380 tonnes, i.e. 532 000 tonnes). Assuming a ceiling on compensation of 12 cent per litre, which was applied to the third advance (19), the annual financial requirements of the FPAP were thus about EUR 85 million. Considering the fact that the fisheries undertakings perhaps only insured part of their fuel consumption, the appropriations required were probably less, but the order of magnitude remains at several tens of millions of euro a year, as compared to the initial estimate of EUR 4 million for 2005. It is therefore obvious that the FPAP could not have coped with the cover guaranteed to its members, in exchange for their contributions, without receiving external funding, in this case the advances granted by the State.
(97)
In this context, the FPAP received public funding to meet the needs of this ‘diesel insurance’, with the proviso that it managed the funds as efficiently as possible. The FPAP’s liquid assets are thus composed of funds coming from the members’ contributions, the State advances, and the potential profits of its activities on the oil futures markets. The part of the funding coming from the State advances is undeniably State resources. As regards the profits made on the futures markets which enabled the fisheries undertakings to be supplied with less expensive fuel, it was only possible for them to be made thanks to the existence of the State resources, which gave the FPAP the means to undertake financial transactions on the futures markets. In addition, although the exact characteristics of the agreements concluded between the FPAP and Cecomer are not known and cannot be deduced from any of the documents forwarded by France, the Commission supposes that the compensation paid to the member undertakings, consisting of the difference in price, was lower than if Cecomer and the maritime cooperatives had supplied fuel to the fishermen which had been bought on the ordinary market, i.e. without the FPAP’s operations on the futures markets. Thus, the profit from the FPAP’s operations on the futures markets was transferred to Cecomer, the supply cooperative of the maritime cooperatives, and ultimately to the fisheries undertakings which obtain their fuel from them. The practical effect was certainly that the FPAP could continue paying compensation for a longer period than if the FPAP had only been an intermediate body solely responsible for distributing the EUR 65 (or 77) million provided by the State under cover of the ‘diesel insurance’ mechanism.
(98)
The Commission therefore takes the view that it was indeed by means of State resources, irrespective of whether they were fed directly into the FPAP’s liquid assets or they were used to make profits further increasing those assets, that the fisheries undertakings were able to enjoy a financial advantage, on the one hand by having the possibility of obtaining supplies of fuel at an advantageous price, and on the other by receiving a compensatory allowance calculated on the basis of a reference price.
4.2.1.2. Existence of a financial advantage imputable to the State
(99)
The three, or possibly four, agreements concluded between the State and the FPAP provide that the ultimate purpose of the public funds paid in the form of advances is to partially compensate fisheries undertakings for the cost of fuel. The compensation paid to the fishermen in the form of an allowance equivalent to the difference between a reference price and a price at the pump comes in addition to a reduction in the price of diesel at the pump of the supplier, who is, as a rule, the maritime cooperative.
(100)
The FPAP’s liquid assets, originally made up of its members’ contributions then supplemented by an initial advance by the State, enabled it to operate on the futures markets and make profits, although those profits were not sufficient to enable it to simultaneously pay the compensatory allowance guaranteed to the fisheries undertakings in return for their contributions. However, two, or possibly three, additional advances enabled it to continue its activities before it gradually had to reduce its holdings in order to have the liquidity required to pay the allowances. The Commission observes that the Decisions on the operations on the futures markets were taken by the President of the FPAP. They were actually implemented by commissioning brokers and specialised financial institutions (see recital 74), and the amount of remuneration paid to them by the FPAP is not known to the Commission. However, although the FPAP’s articles of association provide that the President must consult the Board of Directors ‘to decide on proposed cover plans’, the State is not represented on that Board. Thus, although the FPAP was generally required ‘to keep accounts so that, on request, information on how the advances have been used and the Fund’s resources and expenditure have been allocated can be obtained’, the State did not have any part in the Decision on the strategy to be followed by the FPAP for acquiring these financial options or on the level of the financial compensation to be paid to the undertakings. Consequently, although, as was demonstrated in paragraph 4.1.1.4, there is no doubt that the aid consisting of the granting of the three, or possibly four, advances is imputable to the State, that is not the case for the additional advantages enjoyed by the fisheries undertakings resulting, on the one hand, from their contributions and, on the other, from the prudent management of the FPAP’s liquid assets as a whole. This is because, although the aid ultimately paid to the fishermen was higher than the public funds originally received by the FPAP thanks to the operations undertaken on the futures markets, the part of the aid exceeding the amount of the public funding advanced did not result from a State Decision. Thus, even if it is not possible, from an accounting point of view, to identify precisely what came from State resources and what came from the Fund’s own resources, since it was the liquid assets as a whole which were used to operate on the oil futures markets and pay the compensatory allowance, in the Commission’s view the advantage resulting from the difference between the total amount of aid paid to the fisheries undertakings and the total amount of the State advances transferred to the fisheries undertakings is not imputable to the State.
4.2.1.3. Existence of a financial advantage which distorts or threatens to distort competition
(101)
The Commission considers that the reduction in fuel expenditure enjoyed by the FPAP’s member fisheries undertakings favours those undertakings because they are the only ones able to benefit from the reduction. Their position is strengthened in relation to other undertakings competing with them on the Community market, irrespective of whether they are other fisheries undertakings or undertakings in other sectors of economic activity with an interest in reducing their running costs as regards fuel expenditure. Moreover, since the cover mechanism is targeted only at fisheries undertakings, the advantage thus granted to those undertakings must be regarded as a sectoral advantage not accessible to other sectors. But, by favouring a particular sector, any form of aid distorts or threatens to distort competition (see Commission Decision 2006/269/EC of 8 February 2006 on tax deductions for professional fishermen (Sweden) (20), recitals 31 and 35).
(102)
France objects that this aid did not favour the FPAP’s member undertakings insofar as ‘membership of the FPAP is free and open to all fisheries undertakings provided that they pay their contribution’. MQA adds that membership is open ‘without consideration of the structure or nationality of the recipient’. Lastly, the FPAP points out that ‘the FPAP’s member undertakings are held by French capital, but also by Spanish and Dutch capital’.
(103)
In reply, the Commission observes that the only fisheries undertakings which may join the FPAP are those which have vessels registered in metropolitan France or the overseas departments. Therefore undertakings with Dutch or Spanish capital holding French vessels may indeed become members of the FPAP. It is certainly those vessels to which France and the FPAP allude in their replies. But other Community vessels may not become members.
(104)
All the undertakings enjoying the compensation paid by the FPAP compete on the Community market with undertakings whose vessels fly the flag of the other Member States and which also have an interest in reducing their running costs as regards fuel expenditure, but which do not have at their disposal any compensation system of the kind set up by the FPAP. For that reason, the advantage enjoyed by the member fisheries undertakings or fisheries undertakings which have not yet become members but which are able to do so, i.e. all the undertakings having fishing vessels flying the French flag, is clearly a distortion of competition.
(105)
The FPAP also takes the view that the factors distorting competition must be sought elsewhere. Referring to the existence of major additional costs which, according to it, are not economically justified, such as costs resulting from the management of the multiannual guidance plans for the fishing fleet, i.e. management of the fleet’s overall capacity, or costs relating to management of ‘production rights’, the FPAP points out in particular that ‘The “rights” attaching to national “policies” represent (…) the real factor distorting European competition [and] they result mainly from the economic field’.
(106)
In this connection the Commission observes that these costs, whether or not they are higher or lower in France than in the other Member States, are the result of the constraints of the regulatory framework in which fishing is carried out today. In its communication of 26 February 2007 on rights-based management tools in fisheries (21), the Commission points out that the Community fisheries sector is characterised by a multiplicity of management instruments and mechanisms and that comparable situations are treated in sometimes very different ways, depending on the Member State. The result is, in particular, that selling and buying are current practice in some Member States, either within established markets or indirectly. The costs mentioned by the FPAP are the costs with which the fleets of the various Member States are confronted and correspond to the level of economic development of the fisheries sector. They result from the implementation at national level of the management measures which the common fisheries policy lays down or makes necessary. This implementation does not justify the introduction of specific aid in an individual Member State. For that reason, contrary to what the FPAP argues, the distortion of competition must not be assessed within the confines of a ‘relevant market’, for example a ‘regional micro-market’, a concept to which it refers, but, as is provided for under the Treaty, within the common market as a whole. Thus, if the effect of the FPAP’s aid is to facilitate the maintenance of fishing within a regional framework and protect resources by preventing deep-sea vessels from falling back on closer grounds or trawlers from targeting more specific fisheries, as is argued by the FPAP, it perfectly matches aid which distorts or threatens to distort competition and therefore, in this respect, State aid.
(107)
Also, for all the reasons set out above, the Commission considers that the funds advanced by the State and enjoyed by the fisheries undertakings, via the FPAP, distort or threaten to distort competition.
4.2.1.4. Existence of a financial advantage which affects trade between Member States
(108)
The FPAP disputes the fact that the aid granted to the association’s member fisheries undertakings affects trade between the Member States. Thus, according to the FPAP, these undertakings carry out their activities in ‘a market which is by no means unique, but which is based more on a “mosaic” of regional micro-markets’.
(109)
In reply, the Commission notes that the total value of French exports of fishery and aquaculture products to the rest of the world was EUR 1 290 million in 2005, 80 % of which went to the Member States of the European Union. Similarly, the total value of imports of this category of products to France in 2005 was EUR 3 693 million, 40 to 60 % of which, according to sources, came from the Member States of the European Union (22). By comparison, the total value of French production was EUR 1 868 million. Consequently, without going into a detailed quantified economic analysis (23), it is clear that, regardless of the price variations for each species recorded each day in French or European ports, the volume of trade in the supply balance of fishery and aquaculture products between France and the rest of Europe is considerable. Measures aimed at favouring a significant number of French fisheries undertakings (more than 30 % of the fleet) by reducing their running costs necessarily have an impact on trade between Member States in the fisheries sector.
(110)
It is therefore clear that the advantage enjoyed by fisheries undertakings by bearing part of their running costs affects trade between Member States.
4.2.1.5. Conclusion
(111)
The four requirements for establishing the existence of State aid are only partially met. The advantage enjoyed by fisheries undertakings does result from the use of State resources, it distorts or threatens to distort competition and it affects trade between Member States. On the other hand, it is imputable to the State only up to the amount of the advances, since those advances constitute only a part of the FPAP’s liquid assets and the State did not intervene in the choices made by the FPAP to make profitable use of the funds placed at its disposal. Thus, the Commission concludes that State aid within the meaning of Article 87 of the EC Treaty exists only to the extent of the public funding provided, i.e. EUR 65 or 77 million.
(112)
Finally, the Commission observes that the French authorities, notwithstanding their replies of 7 October 2005 and 21 April 2006, do not actually dispute the Commission’s conclusions on the existence of State aid. This is because, during the examination of the draft finance act for 2007 by the national parliament, the Minister for Agriculture and Fisheries, questioned on the future of the FPAP, replied: ‘the FPAP has been operational since 1 November 2004, but the European Commission is monitoring it closely, because it involves State aid’ (24).
4.2.2. Compatibility with the common market
(113)
Under Article 87(2)(3) of the Treaty, certain categories of aid are or may be considered compatible with the common market.
(114)
The Commission observes that this aid does not match any of the cases provided for in Article 87(2) of the Treaty.
(a)
In arguing that the FPAP acted as ‘a consumer defence organisation’ or as a ‘union of consumers of petroleum products’, MQA seems to suggest that aid for fisheries undertakings could be treated as ‘aid having a social character, granted to individual consumers’ as provided for in Article 87(2). In this respect, the Commission would only observe that that paragraph refers specifically to ‘individual consumers’ and not undertakings, and that, consequently, it cannot apply to the present case (see also recital 50 of this Decision). This aid is therefore not compatible with the common market under Article 87(2)(a) of the Treaty.
(b)
The aid is not aid intended to make good damage caused by natural disasters or other exceptional occurrences, since fluctuations in oil prices are inherent in economic activity. They also affect other sectors of activity which consume petroleum products in all Member States of the European Union and cannot be regarded as a natural disaster or an exceptional occurrence within the meaning of Article 87(2)(b). However, MQA objects to this analysis, arguing that the aid does result from an exceptional situation ‘since the Commission itself admits the sector’s exceptional economic and social difficulties’. It is certainly true that the fisheries sector has to cope with particular difficulties which the Commission analysed in detail in its communication of 9 March 2006 entitled ‘improving the economic situation in the fishing industry’ (25). In this communication, the Commission showed that the sources of the sector’s economic and social difficulties lie in its inadequate structural adjustment to the constraints to which its activity is subject. It also set out various proposals for overcoming the fisheries sector’s economic difficulties. Examining the compatibility of certain operating aid, it points out very clearly:‘The current difficulties in the fishing industry have been aggravated by the recent increase in fuel prices. This has led to calls from the fishing industry for public intervention to compensate for this sudden increase in costs. Such aid would constitute operating aid which is incompatible with the Treaty. The Commission would not approve any aid notified for this purpose’. Referring to a guarantee scheme comparable to that initially thought of when the FPAP was set up, it adds ‘The Commission could approve such a scheme only if it were to provide guarantees of reimbursement of all public aid under commercial conditions, which, in the current economic circumstances, seems very unlikely’. Fluctuations in the cost of inputs, including fuel, are inherent in economic activity and cannot in themselves constitute an exceptional occurrence.
In view of the foregoing, the Commission considers that the State aid in question enjoyed by the fisheries undertakings is not compatible with the common market under Article 87(2)(b) of the Treaty.
(115)
Nor can the aid be considered compatible with the common market on the basis of Article 87(3) of the Treaty and the various cases which it provides for.
(a)
It is not aid to promote the economic development of areas where the standard of living is abnormally low or where there is serious underemployment (the case provided for in Article 87(3)(a) of the Treaty). This aid is intended to reduce the running costs of fisheries undertakings. Admittedly, the FPAP points out that the aid is intended to facilitate the maintenance of fishing within a regional framework. However, the Commission notes that the aid is granted to fisheries undertakings regardless of their registered place of business or the home port of the vessels that they operate. It therefore bears no relation to the aid referred to in Article 87(3)(a).
(b)
Nor can the aid be regarded as aid intended to promote the implementation of an important project of common European interest or as aid to remedy a serious disturbance in the economy of a Member State. It bears no relation to an important project of common European interest. Nor can it be described as aid intended to remedy a serious disturbance in the economy of a Member State. This is because the aid granted to fisheries undertakings is aimed at remedying the difficulties of undertakings in an individual economic sector and not undertakings in the French economy as a whole. The sectoral nature of this aid is undeniable since the rise in the cost of oil not only affected undertakings in the fisheries sector but all undertakings across all sectors of activity. And, in this respect, the Commission has always taken the view that the public authorities should not intervene financially to compensate for the rise, but on the contrary provide incentives for undertakings to adapt to the resultant new economic conditions. Thus, in view of all these factors, the Commission considers that the FPAP for fisheries undertakings cannot be considered compatible under Article 87(3)(b).
(c)
As regards Article 87(3)(c), the reduction of fuel expenditure cannot, in itself, meet the requirements it lays down, according to which aid intended to facilitate the development of certain economic activities or of certain economic regions may be compatible with the common market where it does not adversely affect trading conditions to an extent that is contrary to the common interest. This is because the aid in question is not aimed at encouraging the development of fishing activities towards sustainable fishing, in accordance with the objectives of the common fisheries policy. On the contrary it maintains the level of fishing effort without providing fisheries undertakings with any incentive to reduce their fuel expenditure. Consequently, their effect is to slow down the necessary adaptation of fisheries undertakings to the constraints resulting from the rise in the price of oil. Moreover, this activity is not linked to a particular economic area. That is why the aid cannot be considered compatible with the common market under Article 87(3)(c).
(d)
Lastly, this type of aid obviously does not fall under aid to promote culture and heritage conservation or aid considered compatible with the common market by Decision of the Council adopted in accordance with Article 87(3)(e).
(116)
The result of all these factors is that the State aid granted to fisheries undertakings to reduce their fuel expenditure is not covered by any of the derogations provided for in Article 87 of the Treaty.
(117)
Since this is aid for fisheries undertakings, it must also be assessed in the light of the Guidelines for the examination of State aid to fisheries and aquaculture (‘Guidelines’ in the following).
(118)
The effect of the aid is to reduce the running costs of fisheries undertakings. It displays the characteristics of operating aid.
(119)
First of all the Commission would point out that, under point 3.5 of the Guidelines, ‘State aid may not be protective in its effect: it must serve to promote the rationalisation and efficiency of the production and marketing of fishery products. Any such aid must yield lasting improvements so that the industry can develop solely on the basis of market earnings’.
(120)
However, as set out in recital 115(c) of this Decision, the reduction in fuel expenditure is not aimed at developing fisheries activities towards sustainable fishing, in accordance with the objectives of the common fisheries policy, but the continuation of the fisheries undertakings’ activity unchanged. This is why the Commission takes the view that this aid is indeed protective in its effect, as referred to in point 3.5 of the Guidelines, and therefore cannot be considered compatible with the principle laid down by the Guidelines.
(121)
It is true that, in its replies to the initiation of the formal investigation procedure, France indicated that ‘the actions of the FPAP anticipated useful measures which the recovery and restructuring plans, once ratified, will only illustrate and confirm’. However, it was only much later, in January 2008, that France informed the Commission of the implementation of measures presented as being aid schemes for the rescue and restructuring of fisheries undertakings, registered by the Commission under number NN 09/08 and currently in the process of being assessed. Nevertheless, even if France’s argument, i.e. that the action taken by the FPAP anticipates to a certain degree the aid schemes for rescue and restructuring, is accepted, that does not affect their compatibility with the common market as a result of the fundamental differences between the measures implemented by the FPAP and the requirements which the aid schemes for the rescue and restructuring of undertakings must meet, which are described in the Community guidelines on State aid for rescuing and restructuring firms in difficulty (26). This is because, contrary to what is required in those guidelines, the aid resulting from the action taken by the FPAP was granted indiscriminately to all fisheries undertakings and not only to undertakings in difficulty. Moreover, rescue aid may not exceed a period of six months and must take the form of a repayable loan or a guarantee. As regards restructuring aid, it must be granted under specific conditions and for a limited duration. However, the aid granted by France via the FPAP does not meet any of the conditions laid down: fisheries undertakings have been receiving this aid since 2004, it is not granted in the form of a loan or guarantee, and no provision has been made for its repayment under a restructuring plan.
(122)
The FPAP also considers that the aid granted is justified by the fact that in reality it is aid for employees’ income. In this connection the FPAP writes: ‘The FPAP is set up as a “prevention group” constituting a legal safety perimeter for its 2 500 member undertakings within the meaning of the French Act…. In this connection, the aid for employees’ income within the restructuring perimeter is authorised. It does not affect the competition rules in any way. On the contrary, it is in line with the Community principles guaranteeing employees a fair minimum income’. The FPAP goes on to state that the system of payment for fishermen in France by giving them a share of the crew’s profit has had the effect of depriving the employees of fisheries undertakings of their wages or even putting them in debt to the shipowners. Lastly, it points out that 25 million of the 65 million advance granted by the State ‘directly relate to advances to employees and must be regarded as direct social assistance’. MQA adds: ‘If the loans are regarded as aid, not for the FPAP, which is transparent, but for its member fisheries undertakings, it really would be social assistance, since the financial assistance thus granted would be directly linked to the sailors’ pay’.
(123)
These statements prompt the Commission to make a few comments:
1.
First of all, it is surprised to read that almost 40 % (25 million out of 65 million) of the cash advances granted by the State in order, according to the three agreements described above (see recital 21 of this Decision), to enable the acquisition of financial options on the petroleum product futures markets, ‘directly relate to advances to the employees and must be regarded as direct social assistance’.
2.
The Commission supposes that this is a rhetorical shortcut on the part of the FPAP, designed to show that the action taken by the FPAP reducing the running costs of fisheries undertakings, given the system of payment by giving employees a share of the profit, ultimately benefits the employees of these undertakings. In that sense the action could be regarded as ‘direct social assistance’. In fact nothing in the file indicates that there has been any direct social assistance, i.e. aid paid by the FPAP directly to the employees of these undertakings. What is more, the FPAP’s articles of association make no provision for this at all (see recital 20 of this Decision).
3.
However, that may be, i.e. whether the aid may have been paid directly to the employees or the effect of the action taken by the FPAP was to provide a benefit for those employees, enabling them to supplement their income based on the system of a share of profits, the Commission points out that, according to settled case-law (27), the concept of aid encompasses advantages granted by public authorities which, in various forms, mitigate the charges which are normally included in the budget of an undertaking. In this sense, wages are indisputably a part of such charges and an undertaking cannot count on public funding to bear them. Consequently, the fact that the advantages enjoyed by fisheries undertakings in the form of the possibility of buying fuel at preferential prices and partial compensation for their fuel expenditure did in reality, according to the FPAP and MQA, benefit the employees of those undertakings is of no relevance for assessing the compatibility of this aid with the common market. It is sufficient to establish that the effect of the advantages granted to fisheries undertakings out of public funds was a reduction of the charges which normally have to be paid out of those undertakings’ budgets.
4.
Similarly, the Commission cannot accept the claim that the aid for employees’ income is authorised, on the one hand because it is in line with the Community principles guaranteeing employees a fair minimum income and on the other because the system of payment by means of a share of profits is particularly unfavourable to French sailors. This is because, under the principle of subsidiarity, the rules on minimum wages fall entirely within the jurisdiction of the Member States. In France, as regards sailors’ wages, this obligation is laid down in Articles L.742-2, D.742-1 and D.742-2 of the Labour Code. As recalled by a judgment of the Rennes Court of Appeal of 16 June 1998 (28), those provisions, which apply generally, apply to employees covered by the Maritime Labour Code, whatever the method of remuneration adopted. The fact that the shipowner and his or her employees agreed at the start that sailors would be paid a share of the (potential) profits does not exempt the shipowner from guaranteeing the sailors’ remuneration at least equal to the minimum wage for the period in which they are on board. In other words, the share of profits in the fishing industry must be at least equivalent to the remuneration calculated in accordance with the growth-indexed minimum wage. In this respect Article 34 of the Maritime Labour Code (29) refers to ‘a national trades agreement or extended branch agreements [for laying down], independently of the actual time worked, the period(s) for calculating the growth-indexed minimum wage for share-fishermen’. The branch agreement, Article 9(1) of which guarantees a minimum gross annual remuneration for share-fishermen, was signed on 28 March 2001 (30). This provision was made compulsory, for all employers and employees covered by this agreement, by an interministerial decree of 3 July 2003 (31). The wage cost produced by this legal obligation is thus part of the running costs of fisheries undertakings, the same as expenditure on fuel. Under these circumstances, the Commission therefore cannot accept the argument that the French State is justified in intervening financially because shipowners are failing to meet their legal obligation to ensure a minimum wage for their employees, even where they are share-fishermen.
(124)
According to MQA, the measures in question may also be socioeconomic measures: ‘the guidelines (…) state that socioeconomic measures may be declared compatible. In this particular case, the FPAP is completely transparent and the schemes classified as aid by the Commission have an obvious socioeconomic character’.
(125)
The Commission notes that MQA has not provided any evidence enabling the aid in question to be examined under point 4.5 of the Guidelines, which provide that, on a case-by-case basis, direct aid for workers equivalent to socioeconomic measures may be considered compatible with the common market. This is because that point specifies that they may only be considered compatible ‘provided that it forms part of socioeconomic back-up measures compensating income losses linked to measures designed to achieve an adjustment of capacity adopted pursuant to Article 11(1) of Regulation (EC) No 2371/2002’ (Council Regulation (EC) No 2371/2002 of 20 December 2002 on the conservation and sustainable exploitation of fisheries resources under the common fisheries policy (32)). However, the creation of the FPAP is not part of an overall plan for the adjustment of fishing capacity adopted under Regulation (EC) No 2371/2002. Therefore in no way does the argument put forward by MQA justify the grant of such operating aid.
(126)
MQA also points out that it is not correct to state that the aid was granted unconditionally. According to MQA, ‘as a condition for granting these loans the State required the FPAP to produce various supporting documents so as to be able to ensure proper management of funds and establish that the Fund and its members were determined to implement sustainable solutions for the new production conditions in the fisheries sector’. MQA points to this transparent accounting requirement and the State Decision to request that an interministerial audit be carried out.
(127)
The Commission notes the transparency and monitoring requirement, but observes that this would appear to be an elementary requirement, since this is assistance financed out of public funds. However, it regrets that, in such a context of transparency, the French authorities did not send it all the detailed figures and information on the Fund’s activities, despite the requests made during the procedure. Lastly, it notes that it was never informed of the audit mentioned by MQA, nor a fortiori of its conclusions, which the French authorities were requested to provide by mid-November 2005.
(128)
Consequently, the Commission considers that the advances granted by the State do in fact fall under the category of operating aid referred to in point 3.7 of the Guidelines, according to which: ‘State aid which is granted without imposing any obligation serving the objectives of the Common Fisheries Policy on the part of recipients and which is intended to improve the situation of undertakings and increase their business liquidity (…) is, as operating aid, incompatible with the common market’. These advances are therefore incompatible with the common market.
5. CONCLUSION
(129)
The Commission holds that France, in breach of Article 88(3) of the Treaty, has unlawfully implemented the various aid schemes which are the subject of this Decision.
(130)
On the basis of the analysis developed in part 4.1 of this Decision, the Commission considers that the FPAP’s additional business liquidity resulting from the granting of three, or possibly four, advances totalling EUR 65 million, or possibly EUR 77 million, constitutes State aid incompatible with the common market under Article 87(2) and (3) of the Treaty. This is because, since no bank would have granted advances such as those granted to the FPAP and, according to the information available, the advances have not been repaid, the advances have become a direct subsidy (see recital 67) and therefore State aid covering the amount in question.
(131)
On the basis of the analysis developed in part 4.2 of this Decision, the Commission considers that the aid granted in the form of advances to the FPAP and which enabled fisheries undertakings to buy fuel at an advantageous price and to benefit from a compensatory allowance under the diesel insurance, constitutes State aid incompatible with the common market under Article 87(2) and (3) of the Treaty.
6. RECOVERY
(132)
The amount of State aid paid by France is EUR 65 million, or EUR 77 million if a fourth agreement existed. In accordance with Article 14(1) of Regulation (EC) No 659/1999, where negative Decisions are taken in cases of unlawful aid, the Commission must decide that the Member State concerned must take all necessary measures to recover the aid from the beneficiary. The purpose is achieved once the aid in question, together where appropriate with default interest, has been repaid by the recipient or, in other words, by the undertakings which actually benefited from it (33). The purpose of the recovery will therefore be achieved when this amount of EUR 65 or EUR 77 million has been repaid.
(133)
In order to determine what has to be recovered from the FPAP on the one hand and the fisheries undertakings on the other, account should be taken of the fact that the objective of the FPAP, although it acts as an economic operator on the futures markets, is to grant allowances to fisheries undertakings under the diesel insurance system which it set up, and to provide them with fuel at an advantageous price. The analysis made in this Decision of the general operation of this particular system shows that the FPAP fulfilled its mission by gradually transferring the aid granted by the State. For that reason, the aid to be recovered from the FPAP is the part of the EUR 65 or EUR 77 million which was not transferred to the fisheries undertakings, and the aid to be recovered from the fisheries undertakings is therefore the part which was transferred to them.
(134)
The Commission is not aware of the amount which was actually transferred by the FPAP to the fisheries undertakings. In this connection the Commission observes that, despite an injunction addressed to France to provide all the necessary information on the FPAP’s operation, it has not forwarded any details of how the Fund’s financial resources were used or of its accounts. In the absence of this information and in order to take account of the Court’s Decisions (34), the Commission thinks it useful to provide guidelines on the methodology to be used for determining the amount of aid to be recovered.
(135)
In laying down these guidelines, the Commission took into account the fact that, under the agreements, the FPAP is required to keep accounts so that information on how the advances have been used and resources and expenditure have been allocated can be obtained, and undertook to keep the accounting documents for a minimum period of ten years, and make them available to the various State bodies on request (see recital 27). On the basis of this information, the authorities or bodies instructed to apply the recovery Decision will be able to obtain information on the FPAP’s liquid assets and the cash situation at the time the Decision has to be implemented. Also, since the fisheries undertakings’ accounts are normally kept by management groups belonging to the Centre de gestion de la pêche artisanale (Small-Scale Fishery Management Centre), which is represented on the FPAP’s Board of Directors, it is also possible to identify the allowances paid by the FPAP in the undertakings’ accounts.
6.1. Recovery from the FPAP
(136)
The amount of incompatible aid to be recovered from the FPAP is equivalent to that part of the State aid which was not ultimately transferred to the fisheries undertakings, i.e. the amount of the advances which funded the operating costs of the FPAP and the amount of the advances that it kept as liquid assets. It will be possible for the authority instructed to implement recovery to find out the total amount of the operating costs from the FPAP’s accounts. Given the fungible nature of money and the impossibility of knowing what money is used where, the Commission takes the view that the proportion of State advances which financed these operating costs is the total amount of those expenses multiplied by the ratio of the advances to the sum of the advances and the FPAP’s own funds (its members’ contributions). In the same way, the amount of the advances kept as liquid assets can be determined by multiplying the remaining liquid assets by the same ratio.
6.2. Recovery from the fisheries undertakings
(137)
As indicated above, the aid to be recovered from the fisheries undertakings as a whole is equivalent to the EUR 65 or 77 million of advances, less the amount to be recovered from the FPAP in accordance with the details given in recital 136. As regards the State aid to be recovered from each one of those undertakings, account must be taken of the fact that it is not possible, from an accounting point of view, to make a distinction between aid which is classified as State aid and aid which is not imputable to the State (see paragraph 4.2.1.2 of this Decision).
(138)
The Commission takes the view that the State aid to be recovered from each undertaking can be calculated on the basis of the allowance received by each undertaking under the diesel insurance.
(139)
By taking this allowance as the basis for calculation, the Commission leaves aside the subsidy-equivalent of the saving made by each fisheries undertaking as a result of the purchase of fuel at a price lower than the market price. The Commission considers that it is justified to do so because the undertakings which benefited from preferential prices for their fuel are the same as those which benefited from the allowances under the diesel insurance. They did this in completely comparable respective proportions since the more one undertaking bought fuel at a preferential price the more allowances it obtained, and vice versa. By choosing this basis, no element of distortion is thus introduced between the undertakings concerned in relation to the repayment obligations which they will have to meet. Also, the Commission notes that, if these subsidy-equivalents were to be taken into account in the basis for calculation, it would be necessary for this purpose to calculate, for each purchase of fuel carried out in the FPAP’s period of activity on the oil futures markets, the difference between the expenditure which would have resulted from purchase during the day in question and the cost actually invoiced by the cooperative after having determined what the price on the day applicable would have been for the type of fuel bought at the particular place of supply. This method would have been more difficult to implement. That is why the Commission thinks it preferable to recommend a basis for calculation which will facilitate the task of the authorities and bodies instructed to implement the recovery Decision.
(140)
Consequently, the Commission considers that the State aid to be recovered from each undertaking can be calculated on the basis of the allowance received by each undertaking under the diesel insurance. The State aid to be recovered must be calculated by multiplying that allowance by a percentage corresponding to the ratio of the overall amount of the State aid to be recovered from the fisheries undertakings to the overall amount of the allowances paid to the fisheries undertakings by the FPAP under the diesel insurance.
(141)
The amount to be recovered from each fisheries undertaking must thus be calculated according to the following formulas:
Where:
R*Und
=
amount to be recovered from the fisheries undertaking
I
=
amount of the allowance received by the fisheries undertaking under the diesel insurance
Advances
=
EUR 65 or 77 million
R*FPAP
=
amount to be recovered from the FPAP in accordance with the details given in recital 136
Total I
=
total amount of the allowances paid by the FPAP to the fisheries undertakings under the diesel insurance
(142)
This formula takes account of the supposition that the FPAP made profits on the futures markets which were then passed on completely to the fisheries undertakings. As described in this Decision, that is the most plausible case. However, consideration should also be given to the theoretical case in which the FPAP made losses on the futures markets, with the result that the fisheries undertakings would have received an overall amount of allowances lower than the amount of the advances less the amount to be recovered from the FPAP. In such a case, the quotient (Advances - R*FPAP)/Total I would generally be greater than 1, in particular if the amount ‘R*FPAP’ is small. Application of the above formula would therefore mean that the overall amount to be recovered from the fisheries undertakings would be higher than that which they received. For that reason, in this particular case, the amount to be recovered from each undertaking should be the amount of the allowance received by the undertaking under the ‘diesel insurance’. In this particular case, the balance of the State advances and the allowances paid to the fisheries undertakings would have to be recovered from the FPAP, which would actually have retained that difference.
(143)
State aid for the fisheries undertakings cannot be made subject to recovery if, on the date on which it was granted, it meets the conditions of Regulation (EC) No 1860/2004 or Regulation (EC) No 875/2007 on de minimis aid,
HAS ADOPTED THIS DECISION:
Article 1
The aid granted to the Fund for the prevention of risks to fishing (FPAP) for the acquisition of financial options on the oil futures market and implemented unlawfully by France in breach of Article 88(3) of the Treaty is incompatible with the common market.
Article 2
The aid granted to fisheries undertakings in the form of a reduction of their fuel expenditure and unlawfully granted by France in breach of Article 88(3) of the Treaty is incompatible with the common market.
Article 3
Individual aid granted to a fisheries undertaking under Article 2(1) of Council Regulation (EC) No 994/98 (35) shall not be subject to recovery if, at the time it is granted, it meets the conditions laid down by the regulation adopted under Article 2 of Regulation (EC) No 994/98 applicable at the time the aid was granted.
Article 4
1. France shall recover the incompatible aid referred to in Articles 1 and 2 from the beneficiaries.
2. The sums to be recovered shall bear interest from the date on which they were placed at the disposal of the beneficiaries until their actual recovery.
3. The interest shall be calculated on a compound basis in accordance with Chapter V of Commission Regulation (EC) No 794/2004 (36).
4. France shall cancel all outstanding payments of the aid referred to in Articles 1 and 2 with effect from the date of adoption of this Decision.
Article 5
1. Recovery of the aid referred to in Articles 1 and 2 shall be immediate and effective.
2. France shall ensure that this Decision is implemented within four months of the date of its notification.
Article 6
1. Within two months of notification of this Decision, France shall submit the following information to the Commission:
(a)
the total amount (principal and recovery interests) to be recovered from the FPAP;
(b)
a detailed description of the measures already taken and planned to comply with this Decision;
(c)
documents demonstrating that the FPAP has been ordered to repay the aid.
2. France 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 recovery interest already recovered from the FPAP.
Article 7
1. Within two months of notification of this Decision, France shall submit the following information to the Commission:
(a)
a list of fisheries undertakings that have received aid as referred to in Article 2 and the total amount of aid received by each of them;
(b)
the total amount (principal and recovery interests) to be recovered from each beneficiary;
(c)
a detailed description of the measures already taken and planned to comply with this Decision;
(d)
documents demonstrating that the beneficiaries have been ordered to repay the aid.
2. France 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 2 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 recovery interest already recovered from the beneficiaries.
Article 8
This Decision is addressed to the French Republic.
Done at Brussels, 20 May 2008.
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COMMISSION DECISION of 27 June 1996 amending the information contained in the list in the Annex to Commission Regulation (EEC) No 55/87 establishing the list of vessels exceeding eight metres length overall permitted to use beam trawls within certain coastal areas of the Community (96/452/EC)
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Council Regulation (EEC) No 3094/86 of 7 October 1986 laying down certain technical measures for the conservation of fishery resources (1), as last amended by Regulation (EC) No 3071/95 (2),
Having regard to Commission Regulation (EEC) No 55/87 of 30 December 1986 establishing the list of vessels exceeding eight metres length overall permitted to use beam trawls within certain coastal areas of the Community (3), as last amended by Regulation (EC) No 3410/93 (4), and in particular Article 3 thereof,
Whereas authorities of the Member States concerned have applied for the information in the list provided for in Article 9 (3) (b) of Regulation (EEC) No 3094/86 to be amended; whereas the said authorities have provided all the information supporting their applications pursuant to Article 3 of Regulation (EEC) No 55/87; whereas it has been found that the information complies with the requirements and whereas, therefore, the information in the list annexed to the Regulation should be amended,
HAS ADOPTED THIS DECISION:
Article 1
The information in the list annexed to Regulation (EEC) No 55/87 is amended as shown in the Annex hereto.
Article 2
This Decision is addressed to the Member States.
Done at Brussels, 27 June 1996.
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Commission Regulation (EC) No 2053/2002
of 19 November 2002
fixing representative prices in the poultrymeat and egg sectors and for egg albumin, and amending Regulation (EC) No 1484/95
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Council Regulation (EEC) No 2771/75 of 29 October 1975 on the common organisation of the market in eggs(1), as last amended by Commission Regulation (EC) No 493/2002(2), and in particular Article 5(4) thereof,
Having regard to Council Regulation (EEC) No 2777/75 of 29 October 1975 on the common organisation of the market in poultrymeat(3), as last amended by Regulation (EC) No 493/2002, and in particular Article 5(4) thereof,
Having regard to Council Regulation (EEC) No 2783/75 of 29 October 1975 on the common system of trade for ovalbumin and lactalbumin(4), as last amended by Commission Regulation (EC) No 2916/95(5), and in particular Article 3(4) thereof,
Whereas:
(1) Commission Regulation (EC) No 1484/95(6), as last amended by Regulation (EC) No 1856/2002(7), fixes detailed rules for implementing the system of additional import duties and fixes representative prices in the poultrymeat and egg sectors and for egg albumin.
(2) It results from regular monitoring of the information providing the basis for the verification of the import prices in the poultrymeat and egg sectors and for egg albumin that the representative prices for imports of certain products should be amended taking into account variations of prices according to origin. Therefore, representative prices should be published.
(3) It is necessary to apply this amendment as soon as possible, given the situation on the market.
(4) The measures provided for in this Regulation are in accordance with the opinion of the Management Committee for Poultrymeat and Eggs,
HAS ADOPTED THIS REGULATION:
Article 1
Annex I to Regulation (EC) No 1484/95 is hereby replaced by the Annex hereto.
Article 2
This Regulation shall enter into force on 20 November 2002.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 19 November 2002.
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COMMISSION REGULATION (EEC) No 3023/93 of 29 October 1993 amending Regulation (EEC) No 2048/90 laying down detailed rules for the application of the system of aid in favour of small cotton producers
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Economic Community,
Having regard to Council Regulation (EEC) No 1152/90 of 27 April 1990 instituting a system of aid in favour of small cotton producers (1), as amended by Regulation (EEC) No 2054/92 (2), and in particular Article 7 (1) thereof,
Whereas Article 10 of Commission Regulation (EEC) No 2048/90 (3), as last amended by Regulation (EEC) No 2227/92 (4), provides that the Member States must pay the aid to small cotton producers not later than 31 October following the end of the marketing year; whereas, in view of difficulties encountered, it is not possible to pay the aid for the 1992/93 marketing year within the time limit laid down; whereas, as an exceptional measure for that year, the time limit provided for in Article 10 of Regulation (EEC) No 2048/90 should be extended;
Whereas the measures provided for in this Regulation are in accordance with the opinion of the Management Committee for Flax and Hemp,
HAS ADOPTED THIS REGULATION:
Article 1
The second paragraph of Article 10 of Regulation (EEC) No 2048/90 is hereby replaced by the following paragraph:
'However, for the 1992/93 marketing year, the Member States shall be authorized to pay the amount not later than 30 November 1993'.
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, 29 October 1993.
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COMMISSION REGULATION (EC) No 139/2008
of 15 February 2008
amending Annexes I, II, III, V and VII to Council Regulation (EEC) No 3030/93 on common rules for imports of certain textile products from third countries
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Council Regulation (EEC) No 3030/93 of 12 October 1993 on common rules for imports of certain textile products from third countries (1), and in particular Article 19 thereof,
Whereas:
(1)
The common rules for imports of textiles products from third countries should be updated to take account of a number of recent developments.
(2)
Vietnam became a full member of the World Trade Organisation on 11 January 2007.
(3)
The Council has approved by Decision 2007/861/EC (2) the signing and the provisional application of a bilateral agreement between the European Community and the Republic of Belarus on trade in textile products.
(4)
Amendments to Council Regulation (EEC) No 2658/87 of 23 July 1987 on the tariff and statistical nomenclature and on the Common Customs Tariff (3) also affect certain codes in Annex I to Regulation (EEC) No 3030/93.
(5)
Regulation (EEC) No 3030/93 should therefore be amended accordingly.
(6)
The measures provided for in this Regulation are in accordance with the opinion of the Textile Committee set up by Article 17 of Regulation (EEC) No 3030/93,
HAS ADOPTED THIS REGULATION:
Article 1
Annexes I, II, III, V and VII to Regulation (EEC) No 3030/93 are amended as set out in the Annexes 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.
It shall apply with effect from 1 January 2008.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 15 February 2008.
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COMMISSION DECISION of 30 July 1992 amending Commission Decision 85/634/EEC authorizing certain Member States to provide for derogations from certain provisions of Council Directive 77/93/EEC in respect of oak wood originating in Canada or the United States of America (Only the Danish, Dutch, French, German, Italian and Spanish texts are authentic) (92/437/EEC)
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Economic Community,
Having regard to Council Directive 77/93/EEC of 21 December 1976 on protective measures against the introduction into the Community of organisms harmful to plants or plant products and against their spread within the Community (1), as last amended by Commission Directive 92/10/EEC (2), and in particular Article 14 (3), second indent thereof,
Having regard to requests made by the Kingdom of Belgium, the Kingdom of Denmark, the Federal Republic of Germany, the French Republic, the Italian Republic, the Grand Duchy of Luxembourg, the Kingdom of the Netherlands and the Kingdom of Spain,
Whereas, pursuant to the provisions of Directive 77/93/EEC, oak wood with bark attached, originating in North American countries, may, in principle, not be introduced into the Community because of the risk of introducing Ceratocystis fagacearum, the cause of oak wilt;
Whereas, however, Article 14 (3) of the said Directive permits derogations from that rule, provided that it is established that there is no risk of spreading harmful organisms;
Whereas Commission Decisions 85/634/EEC (3), 89/256/EEC (4), 90/548/EEC (5) and 91/21/EEC (6), permit derogations for oak wood originating in Canada and the United States of America for a given period, subject to its revision in the light of experience to be gained;
Whereas Decision 90/548/EEC, stipulated that the authorization should expire on 1 July 1992;
Whereas there is no new information giving cause for its revision;
Whereas, on the basis of the information available at present, the conditions for the derogations in the aforementioned Decisions should be maintained;
Whereas, therefore, the period for which derogations in respect of oak wood originating in Canada and the United States of America are granted should be extended;
Whereas the measures provided for in this Decision are in accordance with the opinion of the Standing Committee on Plant Health,
HAS ADOPTED THIS DECISION:
Article 1
In Article 4 of Decision 85/634/EEC, '1 July 1992' is replaced by '31 December 1992', being the last day of entry into the Community.
Article 2
This Decision is addressed to the Kingdom of Belgium, the Kingdom of Denmark, the Federal Republic of Germany, the French Republic, the Italian Republic, the Grand Duchy of Luxembourg, the Kingdom of the Netherlands and the Kingdom of Spain. Done at Brussels, 30 July 1992.
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Commission Regulation (EC) No 2006/2002
of 11 November 2002
fixing certain indicative quantities and individual ceilings for the issuing of licences for importing bananas into the Community under the tariff quotas for the first quarter of 2003
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 organisation of the market in bananas(1), as last amended by Regulation (EC) No 2587/2001(2), and in particular Article 20 thereof,
Whereas:
(1) Article 14(1) of Commission Regulation (EC) No 896/2001 of 7 May 2001 laying down detailed rules for applying Council Regulation (EEC) No 404/93 as regards the arrangements for importing bananas into the Community(3), as last amended by Regulation (EC) No 349/2002(4), provides for the possibility of fixing an indicative quantity, expressed as the same percentage of quantities available under each of the tariff quotas, for the purposes of issuing import licences for the first three quarters of the year.
(2) The data relating, on the one hand, to the quantities of bananas marketed in the Community in 2002, and in particular actual imports, especially during the first quarter, and, on the other hand, to the outlook for supply and consumption on the Community market in the same quarter of 2003 call for the fixing of indicative quantities for quotas A, B and C that ensure satisfactory supply to the Community as a whole and continuity of trade flows between the production and marketing sectors.
(3) On the basis of the same data, the ceiling on the quantities for which individual operators can submit licence applications in respect of the first quarter of 2003 should be fixed for the purposes of Article 14(2) of Regulation (EC) No 896/2001.
(4) Since this Regulation must apply before the beginning of the period for the submission of licence applications in respect of the first quarter of 2003, it should enter into force immediately.
(5) The measures provided for in this Regulation are in accordance with the opinion of the Management Committee for Bananas,
HAS ADOPTED THIS REGULATION:
Article 1
The indicative quantity provided for in Article 14(1) of Regulation (EC) No 896/2001 for banana imports under the tariff quotas provided for in Article 18 of Regulation (EEC) No 404/93 shall be equal to 27 % of the quantities available for traditional and non-traditional operators under tariff quotas A/B and C for the first quarter of 2003.
Article 2
The quantity referred to in Article 14(2) of Regulation (EC) No 896/2001 that may be authorised for banana imports under the tariff quotas provided for in Article 18 of Regulation (EEC) No 404/93 shall be equal to 27 % of the reference quantity established pursuant to Articles 4 and 5 of Regulation (EC) No 896/2001 for traditional operators under tariff quotas A/B and C and 27 % of the quantity determined and notified pursuant to Article 9(3) of Regulation (EC) No 896/2001 for non-traditional operators under tariff quotas A/B and C for the first quarter of 2003.
Article 3
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, 11 November 2002.
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COMMISSION REGULATION (EEC) No 2146/92 of 29 July 1992 amending Regulation (EEC) No 2742/90 laying down detailed rules for the application of Council Regulation (EEC) No 2204/90
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Economic Community,
Having regard to Council Regulation (EEC) No 2204/90 of 24 July 1990 laying down additional general rules on the common organization of the market in milk and milk products as regards cheese (1), and in particular the second paragraph of Article 1 and the second subparagraph of Article 3 (3) thereof,
Whereas Article 4 (1) of Commission Regulation (EEC) No 2742/90 (2), as amended by Regulation (EEC) No 837/91 (3), fixes the sum due for quantities of casein and/or caseinates used without authorization having regard to the prices for casein and caseinates recorded on the markets in the fourth quarter of 1990; whereas the upward trend in those prices during the first half of 1992 requires that sum to be reduced;
Whereas 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
Article 4 (1) of Regulation (EEC) No 2742/90 is hereby replaced by the following:
'1. The sum due in accordance with Article 3 (3) of Regulation (EEC) No 2204/90 shall be ECU 240 per 100 kilograms of casein and/or caseinates, having regard to the price for casein and caseinates recorded on the markets in the first half of 1992.'
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, 29 July 1992.
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COUNCIL DECISION of 7 June 1988 accepting, on behalf of the Community, the recommendation of the Customs Cooperation Council of 13 June 1985 on the temporary admission of radio and television production and broadcasting equipment (88/354/EEC)
THE COUNCIL OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Economic Community, and in particular Articles 28, 113 and 235 thereof,
Having regard to the proposal from the Commission,
Having regard to the opinion of the European Parliament (1),
Whereas the recommendation on the temporary admission of radio and television production and broadcasting equipment was adopted by the Customs Cooperation Council on 13 June 1985; whereas it is necessary for the Community to adopt a position with regard to it;
Whereas the said recommendation may be accepted by the Community with immediate effect;
Whereas the first measure called for by the recommendation can be implemented pursuant to the existing Community provisions on temporary importation arrangements, namely the third indent of Article 13 (1) and Annex I to Commission Regulation (EEC) No 1751/84 of 13 June 1984 laying down certain provisions for the application of Council Regulation (EEC) No 3599/82 on temporary importation arrangements (2), as amended by Regulation (EEC) No 3813/85 (3), Articles 2, 3 (4) and 12 of Council Directive 85/362/EEC of 16 July 1985 on the harmonization of the laws of the Member States relating to turnover taxes-Exemption from value added tax on the temporary importation of goods other than means of transport (4), and Article 4 of Council Directive 83/182/EEC of 28 March 1983 on tax exemptions within the Community for certain means of transport temporarily imported into one Member State from another (5);
Whereas the second and third measures called for by the recommendation could require particular implementing arrangements, to be specified by the Member States,
HAS DECIDED AS FOLLOWS:
Article 1 The recommendation of the Customs Cooperation Council of 13 June 1985 on the temporary admission of radio and television production and broadcasting equipment is hereby accepted on behalf of the Community with immediate effect, subject to the conditions of application set out in Annex I.
The text of the recommendation is set out in Annex II.
Article 2 The President of the Council shall designate the person empowered to notify the General-Secretariat of the Customs Cooperation Council of the acceptance of the recommendation by the Community, with immediate effect, subject to the conditions of application referred to in Article 1.
Done at Luxembourg, 7 June 1988.
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COMMISSION DECISION
of 12 December 1985
on the implementation of the reform of agricultural structures in Belgium pursuant to Council Directive 75/268/EEC
(Only the Dutch and French texts are authentic)
(85/598/EEC)
THE COMMISSION OF THE EUROPEAN COMMUNITIES,Having regard to the Treaty establishing the European Economic Community,Having regard to Council Directive 75/268/EEC of 28 April 1975 on mountain and hill farming and farming in certain less-favoured areas (1), as last amended by Regulation (EEC) N° 797/85 (2), and in particular Article 13 thereof,Whereas the Belgium Government notified, pursuant to Article 13 of Directive 75/268/EEC in conjunction with Article 17 (4) of Council Directive 72/159/EEC of 17 April 1972 on the modernization of farms (3), as last amended by Regulation (EEC) N° 797/85, the ministerial order of
20 August 1985 granting farmers in less-favoured areas an annual compensatory allowance to offset permanent natural handicaps;Whereas under Article 13 of Directive 75/268/EEC in conjunction with Article 18 (3) of Directive 72/159/EEC, the Commission has to decide whether, having regard to the provisions notified, the existing provisions in Belgium for the implementation of Directive 75/268/EEC continue to satisfy the conditions for financial contribution by the Community to common measures within the meaning of Article 13 of Directive 75/268/EEC;Whereas the abovementioned ministerial order satisfies the conditions and objectives of Directive 75/268/EEC;Whereas a revision of the application form for the compensatory allowance is indicated and Belgium has agreed to follow this up in the year;
Whereas the EAGGF Committee has been consulted on the financial aspects;Whereas the measures provided for in this Decision are in accordance with the opinion of the Standing Committee on Agricultural Structure,HAS ADOPTED THIS DECISION:
Article 1
The provisions existing in Belgium for the implementation of Directive 75/268/EEC continue, having regard to the ministerial order of 20 August 1985 granting farmers in less-favoured areas an annual compensatory allowance to offset permanent natural handicaps, to satisfy the conditions for financial contribution by the Community to common measures within the meaning of Article 13 of Dircective 75/268/EEC.
Article 2
This Decision is addressed to the Kingdom of Belgium.
Done at Brussels, 12 December 1985.
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COMMISSION DECISION of 20 December 1994 approving the 1995 programmes for the eradication of anaplasmosis and babesiosis in Réunion and of cowdriosis and babesiosis in Guadeloupe and Martinique presented by France and fixing the Community financial contribution (Only the French text is authentic) (94/952/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 Council Decision 94/370/EC (2), and in particular Article 24 (6) thereof,
Whereas Decision 90/424/EEC provides, in particular, for the possibility of a Community financial measure for the eradication and monitoring of cowdriosis, babesiosis and anaplasmosis transmitted by insect vectors in the French overseas departments;
Whereas, by letter dated 13 July 1994, France presented a programme for the eradication of anaplasmosis and babesiosis in Réunion and a programme for the eradication of cowdriosis and babesiosis in Guadeloupe and Martinique;
Whereas, after examination, those programmes have been found to fulfil all the Community criteria for the eradication of diseases, pursuant to Council Decision 90/638/EEC of 27 November 1990 laying down Community criteria for the eradication and monitoring of certain animal diseases (3), as last amended by Directive 92/65/EEC (4);
Whereas these programmes are included in the list of programmes for the eradication and monitoring of animal diseases which may receive a financial contribution from the Community in 1995, as laid down in Commission Decision 94/769/EC (5);
Whereas in view of the programmes' important role in achieving the objectives pursued by the Community as regards animal health, the Community's financial contribution should be set at 50 % of the costs borne by France, up to a maximum of ECU 1 300 000;
Whereas the Community will make a financial contribution provided that the measures planned are carried out and the authorities supply all the information necessary within the time limit laid down;
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
1. The programme for the eradication of anaplasmosis and babesiosis in Réunion presented by France is approved for the period 1 January to 31 December 1995.
2. The programme for the eradication of cowdriosis and babesiosis in Guadeloupe and Martinique presented by France is approved for the period 1 January to 31 December 1995.
Article 2
France shall bring into force on 1 January 1995 the laws, regulations and administrative provisions to implement the programme referred to in Article 1.
Article 3
1. The Community financial contribution shall be 50 % of the cost borne by France for the implementation of the programmes referred to in Article 1, up to a maximum of:
- ECU 205 000 for the programme referred to in Article 1 (1),
- ECU 1 095 000 for the programme referred to in Article 1 (2).
2. The Community's financial contribution shall be granted after:
- a quarterly report has been forwarded to the Commission on the progress of each programme and the expenditure incurred,
- a final report has been forwarded to the Commission by 1 June 1996 at the latest on the technical implementation of each programme, accompanied by supporting documents relating to the expenditure incurred.
Article 4
This Decision is addressed to the French Republic.
Done at Brussels, 20 December 1994.
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