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Council Decision
of 4 December 2000
amending Decision 2000/24/EC so as to establish a European Investment Bank special action programme in support of the consolidation and intensification of the EC-Turkey customs union
(2000/788/EC)
THE COUNCIL OF THE EUROPEAN UNION,
Having regard to the Treaty establishing the European Community, and in particular Article 308 thereof,
Having regard to the proposal from the Commission,
Having regard to the opinion of the European Parliament(1),
Whereas:
(1) The Council on 23 December 1963 adopted Decision 64/732/EEC on the establishment of an Association Agreement between the EEC and Turkey(2). The Additional Protocol effective since 1 January 1973 and annexed to the Association Agreement(3) set down the conditions, arrangements and timetables for the progressive establishment of the Customs Union within a period of 22 years.
(2) The Luxembourg European Council on 12 and 13 December 1997 called for a strategy to be drawn up to prepare Turkey for accession by bringing it closer to the European Union in every field. On 4 March 1998 the Commission submitted to the Council a communication entitled "the European Strategy for Turkey", which put forward a work programme to consolidate and add substance to the Customs Union and step up cooperation in other areas significant for the further development of relations with Turkey.
(3) The Cardiff European Council on 15 and 16 June 1998 welcomed the European Strategy for Turkey as a platform for developing relations between the European Union and Turkey on a sound and evolutionary basis. Recalling the need for financial support for the European Strategy, the European Council noted the Commission's intention to reflect on ways and means of underpinning the implementation of the strategy, and to table appropriate proposals to this effect.
(4) The Helsinki European Council of 10 and 11 December 1999 decided that Turkey was a candidate state destined to join the Union on the basis of the same criteria as applied to the other candidate states.
(5) In line with the European Strategy for Turkey and the new status of Turkey as candidate state following the Helsinki European Council, this Decision should establish an EIB special action programme supporting the consolidation and intensification of the EC-Turkey Customs Union. It should facilitate progress in areas that still merit attention as regards the implementation and effective application of certain legislation of relevance for the Customs Union as identified by the regular reports by the Commission on Turkey's progress towards accession and in relevant areas identified by the European Strategy for Turkey.
(6) This Decision, together with Turkey's expected eligibility under the EIB's Pre-Accession Facility, fully delivers the Union commitment on special EIB lending in Turkey in the context of the Customs Union.
(7) The EIB's intervention under this Decision should be coherent with the other EIB facilities available in Turkey and support investments assisting the competitiveness of industry in Turkey, in particular the SME sector; investments in infrastructure, covering transport, energy and telecom improving the links between the EU and Turkish infrastructure, investments supporting direct investment activities by Community companies in Turkey; and where EIB loan finance is an appropriate instrument, investments for technical installations facilitating the functioning of the Customs Union.
(8) Decision 2000/24/EC(4) grants the EIB a Community guarantee against losses under loans for projects outside the Community (Central and Eastern Europe, Mediterranean countries, Latin America and Asia and the Republic of South Africa).
(9) The said Decision grants recourse to the guarantee fund for external actions established by Regulation (EC, Euratom) No 2728/94(5).
(10) The Community guarantee covering the general EIB external lending mandate laid down in Decision 2000/24/EC should be extended to cover an EIB special action programme supporting the consolidation and intensification of the EC-Turkey Customs Union. The said Decision should therefore be amended accordingly.
(11) The provisions of this Decision are linked to respect for democratic principles, the rule of law, human rights and fundamental freedoms and respect for international law, which underpin the policies of the European Community and its Member States. The Community attaches great importance to the need for Turkey to improve and promote its democratic practices and respect for fundamental human rights, and more closely involve civil society in that process.
(12) The Treaty provides for no powers other than those under Article 308 thereof, for the adoption of this Decision,
HAS DECIDED AS FOLLOWS:
Article 1
The second sentence of the second subparagraph of the first paragraph of Article 1 of Decision 2000/24/EC is hereby amended as follows:
(a) in the introductory part, "EUR 18660 million" shall be replaced by "EUR 19110 million";
(b) after the fourth indent, the following indent shall be added: "- Special action supporting the consolidation and intensification of the EC-Turkey Customs Union:
EUR 450 million,".
Article 2
This Decision shall take effect on the day of its publication in the Official Journal of the European Communities.
Done at Brussels, 4 December 2000. | [
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REGULATION (EEC) No 1699/75 OF THE COMMISSION of 2 July 1975 amending Commission Regulation No 27 (1) of 3 May 1962
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Economic Community, and in particular Articles 87 and 155 thereof;
Having regard to Article 24 of Council Regulation No 17 (2) of 6 February 1962;
Whereas Regulation No 27, adopted by the Commission pursuant to Article 24 of Regulation No 17, provides at Article 2 (1) that applications and notifications and their supporting documents must be submitted to the Commission in seven copies;
Whereas the number of copies to be submitted was determined by reference to the number of Member States, with a view to the transmission of the documents to the competent authorities of the Member States pursuant to Article 10 of Regulation No 17;
Whereas the number of copies to be submitted should be adjusted to the present number of Member States so as to accelerate, in the interests of all parties concerned, the examination of applications and notifications,
HAS ADOPTED THIS REGULATION:
Sole Article
Article 2 (1) of Regulation No 27 is amended as follows:
"10 copies of each application and notification and of the supporting documents shall be submitted to the Commission."
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 2 July 1975. | [
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Commission Regulation (EC) No 2430/2001
of 12 December 2001
supplementing the Annex to Regulation (EC) No 2301/97 on the entry of certain names in the Register of certificates of specific character provided for in Council Regulation (EEC) No 2082/92 on certificates of specific character for agricultural products and foodstuffs
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Council Regulation (EEC) No 2082/92 of 14 July 1992 on certificates of specific character for agricultural products and foodstuffs(1), and in particular Article 9(1) thereof,
Whereas:
(1) In accordance with Article 7 of Regulation (EEC) No 2082/92, Sweden has forwarded an application to the Commission for the name "Falukorv" to be entered in the Register of certificates of specific character.
(2) The description "traditional speciality guaranteed" can only be used with names entered in that Register.
(3) No objection under Article 8 of that Regulation was sent to the Commission following the publication in the Official Journal of the European Communities(2) of the name set out in the Annex hereto.
(4) As a consequence, the name set out in the Annex should be entered in the Register of certificates of specific character and thereby protected as a traditional speciality guaranteed within the Community pursuant to Article 13(2) of Regulation (EEC) No 2082/92.
(5) The Annex hereto supplements the Annex to Commission Regulation (EC) No 2301/97(3), as last amended by Regulation (EC) No 1482/2000(4),
HAS ADOPTED THIS REGULATION:
Article 1
The name in the Annex hereto is added to the Annex to Regulation (EC) No 2301/97 and entered in the Register of certificates of specific character in accordance with Article 9(1) of Regulation (EEC) No 2082/92.
It shall be protected in accordance with Article 13(2) of that Regulation.
Article 2
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, 12 December 2001. | [
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COMMISSION REGULATION (EC) No 3338/93 of 3 December 1993 laying down detailed rules for the application of Council Regulations (EC) No 3119/93 and (EEC) No 1035/77 as regards measures to encourage the processing of certain citrus fruits and the marketing of products processed from lemons
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Council Regulation (EC) No 3119/93 of 8 November 1993 laying down special measures to encourage the processing of certain citrus fruits (1), and in particular Article 10 thereof,
Having regard to Council Regulation (EEC) No 1035/77 of 17 May 1977 laying down special measures to encourage the marketing of products processed from lemons (2), as last amended by Regulation (EEC) No 1199/90 (3), and in particular Article 3 thereof,
Whereas the basic conditions for the application of the system of aid for producers' organizations delivering satsumas and of financial compensation for processors of various citrus fruits should be established by stages;
Whereas eligibility under the system provided for must be conditional on submission of an application together with all the particulars necessary to ensure the correct operation of the system;
Whereas the system of financial compensation or aid for citrus fruit producers' organizations is to be based on contracts between producers or producers' groups and processors; whereas the particulars to be included in the contracts should be specified;
Whereas, in order to ensure supplies to undertakings processing mandarins, clementines and satsumas, processing contracts must be concluded before a given date; whereas, taking account of the duration of the marketing year for oranges and lemons, provision should be made for two or four processing contracts respectively to be concluded before given dates; whereas, however, to ensure maximum efficiency of the system, the contracting parties should be allowed, in certain cases and subject to certain limits, to increase, by way of one or more supplementary agreements, the quantities of fruit originally contracted for;
Whereas, because the finished product depends closely on the fruit supplied to the processor, such fruit should meet certain minimum quality criteria;
Whereas applications for financial compensation or for aid must include all the particulars needed to establish that they are fully justified;
Whereas, to ensure that the financial compensation or aid system is correctly applied, processors and citrus fruit producers' organizations must keep up-to-date records; whereas, to prevent irregularities in the operation of the system, processors and citrus fruit producers' organizations must be subjected to such inspection and monitoring as is considered necessary and to financial penalties in cases of failure to comply with the rules, in particular in the case of false statements;
Whereas individual producers may obtain part of the aid for 1993/94 only; whereas provision should therefore be made for a derogation in their case for that marketing year;
Whereas, in view of the extent and significance of the amendments made to Commission Regulation (EEC) No 1562/85 (4), as last amended by Regulation (EEC) No 1203/93 (5), it should be replaced, for reasons of clarity, by this Regulation;
Whereas the marketing year for citrus begins on 1 October; whereas it is necessary, therefore, to set the same date for the application of this Regulation as for Regulation (EEC) No 3119/93;
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:
TITLE I Field of application
Article 1
This Regulation lays down detailed rules for applying the system of aid for citrus fruit producers' organizations and of financial compensation to encourage the processing of sweet oranges, mandarins, clementines, sastumas and lemons, as provided for in Regulations (EC) No 3119/93 and (EEC) No 1035/77 respectively.
Article 2
For the purposes of this Regulation:
- 'processor' means an undertaking operating commercially on its own responsibility one or more plants equipped to process oranges, mandarins, clementines or lemons into juice and/or to process satsumas into segments,
- 'producer' means any natural or legal person growing, on his own holding, fruit to be processed,
- 'citrus fruit producers' organization' means an organization recognized as a producers' organization within the meaning of Article 13a of Council Regulation (EEC) No 1035/72 (1).
TITLE II Information required of producers' organizations and processors
Article 3
1. Producers' organizations and processors wishing to qualify for the system of aid or financial compensation shall inform the competent authorities of the Member State in which processing is to take place not later than 45 days before the start of the marketing year during which they intend to apply for aid or financial compensation and shall at the same time transmit all the information required by the Member State for the proper management and monitoring of the system. Member States may stipulate that such information:
(a) need only be transmitted by producers' organizations or processors wishing to qualify for the first time, if the requisite information for the others is already available;
(b) should relate to a single marketing year, several marketing years or an unlimited period.
2. In exceptional cases for which proper justification satisfying the competent authority concerned is provided, Member States may accept information received after the time limit specified in paragraph 1 where there is no adverse impact on the system of aid or financial compensation.
Article 4
1. In respect of each marketing year, producers' organizations or processors shall notify the competent authorities of the week in which deliveries or processing is to commence. The information must reach the competent authorities not later than five working day before the start of deliveries or processing.
2. In exceptional cases for which proper justification satisfying the competent authority concerned is provided, Member States may accept information received after the time limit specified in paragraph 1; however, no aid or financial compensation shall be granted in such cases in respect of fruit already delivered or processed or in the course of being delivered or processed if the necessary checks on the eligibility for aid or financial compensation cannot be carried out to the satisfaction of the competent authority.
TITLE III Processing contracts
Article 5
1. Individual contracts as referred to in Articles 2 and 6 of Regulation (EC) No 3119/93 and Article 1 of Regulation (EEC) No 1035/77, hereinafter referred to as 'processing contracts', shall be concluded in writing between, on the one hand, producers or producers' groups or associations legally recognized in the Community and, on the other, processors or legally recognized processors' groups or associations, or between the latter and the producers' organizations.
A processing contract may also take the form of a commitment to supply fruit by one or more producers or a producers' organization to the recognized group or association to which they belong, or to a producers' organization, where it is acting as a processor.
2. Processing contracts must contain:
(a) the name and address of the producer or recognized producers' group or association or of the producers' organization;
(b) the name and address of the processor or the recognized processor's group or association or of the producer's organization where it is acting as a processor;
(c) the quantity of fruit covered;
(d) the timetable of deliveries to the processor;
(e) the price to be paid to the other contracting party for the fruit, not including costs relating to packing, loading, transport and unloading and the payment of fiscal charges which must, where relevant, be detailed separately.
3. Member States may stipulate further requirements concerning processing contracts, in particular with regard to deadlines, the terms of payment of the minimum price and penalties to be paid by a contracting party if he fails to fulfil his contractual obligations.
Article 6
Where production and processing are carried out by the same natural or legal person, a processing contract as referred to in the second subparagraph of Article 5 (1) shall be deemed to exist if a schedule has been drawn up showing:
- the total area devoted to fruit growing,
- an estimate of the total crop,
- the quantity to be sent for processing,
- the timetable of deliveries for processing.
Article 7
1. Processing contracts shall be concluded:
- before 15 February in the case of oranges to be delivered for processing before 30 April; before 30 April in the case of oranges to be delivered before the end of the marketing year;
- before 15 November in the case of satsumas,
- before 1 December in the case of clementines,
- before 15 January in the case of mandarins,
- before 20 May, 20 August, 20 November and 20 February in the case of lemons to be supplied for processing during the periods between:
- 1 June and 31 August,
- 1 September and 30 November,
- 1 December and 28 or 29 February,
- 1 March and 31 May, respectively.
However, for mandarins, clementines, satsumas and oranges, a Member State may, in exceptional circumstances, be authorized at its request to defer the date in accordance with the procedure laid down in Article 33 of Regulation (EEC) No 1035/72.
For the 1993/94 marketing year the deadline for the conclusion of contracts in respect of satsumas and clementines shall be 15 December 1993.
2. The contracting parties may increase the quantities of fruit initially specified in a contract, by means of a written supplementary agreement. Such agreements shall be concluded at the latest by:
(a) 15 March or 31 May in the case of oranges depending on whether the fruit is to be delivered to the processing industry in the first period or second period specified in the first indent of paragraph 1;
(b) 1 January in the case of satsumas;
(c) 15 January in the case of clementines;
(d) 28/29 February in the case of mandarins;
(e) 15 July, 15 October, 15 January, 15 April for lemons depending on which of the periods specified in the fifth indent of paragraph 1 is involved.
However, such supplementary agreements may cover:
- not more than 40 % of the original quantity of oranges,
- not more than 40 % of the original quantities of mandarins, clementines and satsumas,
- not more than 40 % of the original quantities of lemons.
3. Where the minimum price to be paid to producers or producers' organizations for a given type of fruit has not been published in the Official Journal of the European Communities at least 21 days before one of the dates given in paragraph 1, the final date for the conclusion of contracts for that product shall, by way of derogation from paragraph 1, be the 21st day following publication of the said price.
4. Payment by the processor to the producer or producers' organization shall be made by bank or post office transfer only.
Article 8
1. Processors and groups or associations of processors shall send copies of each processing contract, together with any supplementary agreements, to the body designated by the Member State where the fruit has been grown and, where relevant, the corresponding body in the Member State where processing takes place. These copies must reach the competent authorities within 10 working days of the conclusion of the contract or supplementary agreement.
2. Producers' organizations delivering satsumas for processing shall send a copy of each processing contract, together with any supplementary agreements, to the body designated by the Member State where the fruit has been grown within 10 working days of the conclusion of the contract or supplementary agreement.
3. In exceptional cases for which proper justification satisfying the Member State concerned has been provided, Member States may validate processing contracts and supplementary agreements reaching their authorities out of time provided that the validation is compatible with the aims of the system of aid or financial compensation and does not adversely affect the monitoring of that system.
TITLE IV Raw materials
Article 9
Fruit supplied to processors under processing contracts must:
- in the case of mandarins, clementines and oranges processed into juice and satsumas processed into segments, satisfy at least the minimum quality and size requirements laid down for Class III,
- in the case of lemons, satisfy at least the minimum quality characteristics laid down in point B (i) of Title II of Annex II to Commission Regulation (EEC) No 920/89 (7), with not more than 15 % by weight of off-grade fruit fit for processing.
Article 10
1. At the time each batch of oranges, mandarins, clementines, satsumas or lemons is delivered to the processing plant under a processing contract, the competent authorities designated by the Member State where the processing takes place shall verify the weight of fruit delivered and its conformity with the quality requirements referred to in Article 9.
When these checks have been completed, a certificate shall be issued to the processor in respect of each batch stating:
- the names and addresses of the contracting parties,
- the conformity of the fruit with the quality and net weight requirements.
A copy of the certificate shall be given to the producer or producers' organization. One copy shall be kept by the competent authority.
2. Where the checks referred to in paragraph 1 show that all or part of the fruit does not conform with Article 9 the authorities specified in paragraph 1 shall notify the contracting parties of that fact at the same time and indicate the consequences with regard to payment of financial compensation or aid.
TITLE V Application for aid and financial compensation
Article 11
1. Processors shall submit applications for financial compensation to the competent body in the Member State where processing took place:
(a) in the case of oranges, one or more applications may be submitted within not more than 60 days as from:
- 15 February or 30 April for fruit processed before these dates,
- completion of the processing for the marketing year;
(b) in the case of satsumas and clementines not more than 60 days as from:
- 1 January for fruit processed before that date,
- completion of the processing;
(c) in the case of mandarins not more than 60 days as from:
- 15 February for quantities processed before that date,
- completion of the processing;
(d) in the case of lemons, one or more applications may be submitted not more than 60 days as from:
- 31 August, 30 November, 28/29 February, 31 May for quantities processed before those dates,
- completion of processing for the marketing year.
2. Producers' organizations delivering satsumas for processing shall send applications for aid to the competent body of the Member State where the fruit was produced, not more than 60 days as from:
- 1 January for quantities delivered before this date,
- on completion of the deliveries.
3. Processors or producers' organizations delivering satsumas may, should they wish, submit their applications for financial compensation in respect of mandarins, satsumas, clementines and oranges or aid for satsumas altogether not more than 60 days after completion of the processing.
Article 12
1. Applications for financial compensation must include:
(a) the name and address of the applicant;
(b) an indication of the total quantities of:
- oranges purchased during the marketing year up to 15 February and 30 April respectively and from 1 May, and/or
- mandarins purchased during the marketing year up to 15 February and after 16 February, and/or
- clementines and satsumas purchased during the marketing year up to 1 January and after 2 January, and/or
- lemons delivered since the beginning of the marketing year, after deduction of any quantities specified in any previous application(s);
(c) a statement of the corresponding quantities purchased under any contracts or supplementary agreements;
(d) total quantities of each product obtained after processing of mandarins, clementines, satsumas, oranges and/or lemons, and quantities of juice obtained from each product, together with the degree of concentration in degrees Brix;
(e) total quantities of each product obtained after processing of mandarins, clementines, satsumas, oranges or lemons purchased under contracts, and the quantities of juice obtained from each product, together with the degree of concentration in degrees Brix;
(f) a statement by the processor to the effect that a price at least equivalent to the minimum price was paid for the fresh products.
2. Applications for financial compensation must include:
(a) invoices for the quantities of fresh products referred to in paragraph 1 (c) duly receipted by the other contracting party, showing that the price paid was not less than the minimum price referred to in Article 3 of Regulation (EC) No 3119/93 and
Article 1
(3) of Regulation (EEC) No 1035/77, or
(b) where growers have entered into a commitment to supply the fruit, a statement by them that the processor has paid or credited to them a price not less than the minimum price;
(c) the certificate referred to in Article 10;
(d) a copy of the transfer order referred to in Article 7 (4).
Article 13
Applications for aid by producers' organizations must include:
(a) the name and address of the organization and the processor;
(b) the total quantities of satsumas delivered during the marketing year up to and including 1 January and from 2 January;
(c) the corresponding quantities of satsumas delivered under contracts or supplementary agreements during the marketing year up to and including 1 January and from 2 January;
(d) a statement by the producers' organization to the effect that a price at least equal to the minimum price was paid to it for the quantities of fresh product specified under (c);
(e) a copy of the transfer order provided for in Article 7 (4);
(f) the certificate provided for in Article 10.
TITLE VI Monitoring
Article 14
1. Processors shall keep records containing the following minimum information for each of the periods referred to in Article 12 (1) (b):
- batches of fruit purchased or entering an undertaking each day, with separate entries for fruit covered by processing contracts and written supplementary agreements, together with the serial numbers of any receipts issued for such batches,
- the weight of each batch and the name and address of the other contracting party,
- the quantities of finished products manufactured each day from the fruit, identifying the quantities eligible for financial compensation, and the quantities of juice obtained from each product, together with the degree of concentration in degrees Brix,
- the quantities of products leaving the processing plant, with the degree of concentration in degrees Brix for each batch, and the address of the consignee. Entries in the records may consist of references to supporting documents where these contain the prescribed particulars.
In addition, the register shall contain the following information: the quantities of juice purchased, by product, and their degree of concentration in degrees Brix.
2. Processors shall keep proof of payment in respect of all fruit purchased under a processing contract or supplementary agreement for five years after the end of the marketing year. Processors shall also keep proof of payment in respect of all fruit bought for processing for five years.
3. Processors shall be subject to any inspection or monitoring considered necessary and shall keep such additional records as are prescribed by the national authorities to enable them to carry out the checks that they consider necessary.
Article 15
1. Producers' organizations delivering satsumas for processing shall keep records containing the following minimum information for each of the periods referred to in Article 13 (b) and (c):
- the batches delivered to the processing industry each day, distinguishing between those covered by processing contracts or written supplementary agreements, together with the serial numbers of any receipts issued for such batches,
- the weight of each batch together with the name and address of the other contracting party.
2. Producers' organizations shall be subject to any inspection or monitoring considered necessary and shall keep such additional records as are prescribed by the national authorities to enable them to carry out the checks that they consider necessary.
Article 16
1. In respect of each marketing year, the competent authorities shall check the records of producers' organizations and processors and verify by random checks of not less than 10 % of applications for aid and not less than 10 % of applications for financial compensation, in particular:
(a) for producers' organizations:
- whether the quantities of satsumas delivered under processing contracts correspond to those given in the application for aid,
- whether the quantities given in the application for aid correspond to those in respect of which the certificate referred to in Article 10 was issued,
- whether the quality requirements are satisfied;
(b) for processors:
- whether the quantities of oranges, mandarins, clementines, satsumas or lemons purchased under contracts and processed in the undertaking correspond to those indicated in the application for financial compensation,
- whether the quantities of fruit referred to in the first indent are consistent with the juice obtained from processing, taking account of the yield of the fruit and the degree of concentration of the finished product in degrees Brix. The equivalence between the quantity of fruit and the quantity of juice obtained and the degree of concentration shall be assessed on the basis of the table set out in the Annex,
- whether the quantities given in the application for financial compensation correspond to those in respect of which the certificate referred to in Article 10 was issued,
- whether the price paid for the products referred to in the first indent for processing is not less than the minimum price, and
- whether the quality requirements are satisfied.
2. In respect of each marketing year, the competent authorities shall also make random checks, for each processor, of not less than 10 % of the invoices relating to applications for financial compensation, selected for the checks referred to in paragraph 1, in order to establish the authenticity of the signatures, the accuracy of the invoices and the payment thereof, for instance by consulting the parties concerned.
3. The competent authorities designated by Member States shall carry out physical checks at least twice a year on the stocks of processed products held by the processor and on the stocks of processed products purchased, and shall compare the data thus obtained with those contained in the processor's records.
4. Verifications undertaken pursuant to this Article shall be without prejudice to any additional checks by the competent authorities or the possible consequences of the application of national provisions.
5. Member States shall take all necessary steps to prevent and punish fraud in connection with the system of aid and financial compensation and to ensure its correct application.
6. Where, in relation to paragraphs 1 and 2, irregularities attain 5 % of the applications for aid or financial compensation or invoics checked, the competent authorities shall step up the checks and inform the Commission thereof without delay.
7. Member States shall recover the amounts unduly paid, with interest at the rate in force in the Member State for similar cases. Member States shall inform the Commission of the interest rates applied.
Article 17
Where it is established that the aid or financial compensation applied for by a producers' organization or processor in respect of any marketing year is greater than the aid or financial compensation due, a reduction shall be applied where the disparity is due to false statements or documents or to negligence on the part of the producers' organization or processor. The reduction shall be:
- 10 % where the disparity is equivalent to between 1 and 5 % of the aid or financial compensation due,
- 40 % where the disparity is equivalent to between more than 5 and 25 %.
Where the disparity is greater than 25 %, no aid or financial compensation shall be due for the marketing year concerned. Moreover, the producers' organization or processor shall lose any entitlement to aid or financial compensation for the following year.
Where aid or financial compensation has already been paid, the Member State shall recover any amounts paid in excess of the aid or financial compensation due, reduced as indicated in the first paragraph, without prejudice to any interest as referred to in Article 16 (7).
TITLE VII Notification
Article 18
Each Member State shall notify to the Commission not later than three months after the end of the marketing year for each product:
1. the total quantity, in net weight, of each of the finished products obtained by the processing industry, after complete processing of oranges, mandarins, clementines, satsumas and lemons;
2. the total quantity, in net weight, of each of the finished products obtained from oranges, mandarins, clementines, satsumas and lemons in respect of which financial compensation was granted;
3. total quantities of oranges, mandarins, clementins, satsumas and lemons processed, broken down according to the finished product obtained;
4. total quantities of oranges, mandarins, clementines, satsumas and lemons covered by processing contracts as referred to Article 5, broken down by finished product;
5. total quantities of oranges, mandarins, clementines, satsumas and lemons, for each period referred to in Article 12 (1) (b), indicated in the applications for financial compensation as having been used for the manufacture of the products referred to in point 2 of this Article, broken down by finished product;
6. the expenditure, given in national currency, incurred in relation to the financial compensation paid in respect of the quantities referred to in point 5;
7. the combined net weight of products not sold and remaining in store at the end of the processing year;
8. the finished products referred to in points 1 to 5 and 7, with the degree of concentration expressed in degrees Brix;
9. the total quantity of satsumas delivered by the producers' organizations, with a separate indication of quantities delivered under contract;
10. the expenditure, given in national currency, incurred in relation to the aid to producers' organizations paid in respect of the quantities delivered under contract.
Each Member State shall notify to the Commission, by 31 March each year at the latest, the quantities of lemons delivered for processing between 1 March of the preceding year and 28/29 February of the current year pursuant to Regulation (EEC) No 1035/77.
TITLE VIII Derogating provisions
Article 19
For the 1993/94 marketing year, the provisions of Article 11 (2) and (3) and Article 13 and the penalties provided for in Article 17 shall apply to an individual producer as referred to in Article 19c of Regulation (EEC) No 1035/72 who applies for aid for satsumas.
TITLE IX Final provisions
Article 20
Regulation (EEC) No 1562/85 is repealed.
Article 21
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 12 November 1993.
However, in the case of products processed from lemons, Regulation (EEC) No 1562/85 shall continue to apply until the end of the 1993/94 marketing year.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 3 December 1993. | [
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COMMISSION REGULATION (EC) Νo 2134/2005
of 22 December 2005
fixing the export refunds on products processed from cereals and rice
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,
Having regard to Council Regulation (EC) No 1785/2003 of 29 September 2003 on the common organisation of the market in rice (2), and in particular Article 14(3) thereof,
Whereas:
(1)
Article 13 of Regulation (EC) No 1784/2003 and Article 14 of Regulation (EC) No 1785/2003 provide that the difference between quotations or prices on the world market for the products listed in Article 1 of those Regulations and prices for those products within the Community may be covered by an export refund.
(2)
Article 14 of Regulation (EC) No 1785/2003 provides that when refunds are being fixed account must be taken of the existing situation and the future trend with regard to prices and availabilities of cereals, rice and broken rice on the Community market on the one hand and prices for cereals, rice, broken rice and cereal products on the world market on the other. The same Articles provide that it is also important to ensure equilibrium and the natural development of prices and trade on the markets in cereals and rice and, furthermore, to take into account the economic aspect of the proposed exports, and the need to avoid disturbances on the Community market.
(3)
Article 4 of Commission Regulation (EC) No 1518/95 (3) on the import and export system for products processed from cereals and from rice defines the specific criteria to be taken into account when the refund on these products is being calculated.
(4)
The refund to be granted in respect of certain processed products should be graduated on the basis of the ash, crude fibre, tegument, protein, fat and starch content of the individual product concerned, this content being a particularly good indicator of the quantity of basic product actually incorporated in the processed product.
(5)
There is no need at present to fix an export refund for manioc, other tropical roots and tubers or flours obtained therefrom, given the economic aspect of potential exports and in particular the nature and origin of these products. For certain products processed from cereals, the insignificance of Community participation in world trade makes it unnecessary to fix an export refund at the present time.
(6)
The world market situation or the specific requirements of certain markets may make it necessary to vary the refund for certain products according to destination.
(7)
The refund must be fixed once a month. It may be altered in the intervening period.
(8)
Certain processed maize products may undergo a heat treatment following which a refund might be granted that does not correspond to the quality of the product; whereas it should therefore be specified that on these products, containing pregelatinised starch, no export refund is to be granted.
(9)
The Management Committee for Cereals has not delivered an opinion within the time limit set by its chairman,
HAS ADOPTED THIS REGULATION:
Article 1
The export refunds on the products listed in Article 1 of Regulation (EC) No 1518/95 are hereby fixed as shown in the Annex to this Regulation.
Article 2
This Regulation shall enter into force on 23 December 2005.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 22 December 2005. | [
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COMMISSION REGULATION (EC) No 2099/2004
of 9 December 2004
fixing the representative prices and the additional import duties for molasses in the sugar sector applicable from 10 December 2004
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 10 December 2004.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 9 December 2004. | [
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COMMISSION REGULATION (EC) No 2437/94 of 7 October 1994 amending Regulation (EEC) No 1962/92 establishing the forecast supply balance for glucose and Community aid for the supply to the Canary Islands of certain cereal products of Community origin
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Council Regulation (EEC) No 1601/92 of 15 June 1992 concerning specific measures for the Canary Islands with regard to certain agricultural products (1), as last amended by Commission Regulation (EEC) No 1974/93 (2), and in particular
Article 3
(4) thereof,
Whereas, pursuant to Article 2 of Regulation (EEC) No 1601/92, Commission Regulation (EEC) No 1962/92 of 15 July 1992 (3), as last amended by Regulation (EC) No 1983/94 (4), establishes the forecast supply balance provided for in Article 2 of Regulation (EEC) No 1601/92 for July, August and September 1994 only, on the basis of the quantities determined for the 1993/94 marketing year, pending the conclusions to be drawn from an examination of the additional information provided by the competent authorities and in order to ensure the continuity of the specific supply arrangements; whereas, for the same reasons, the supply balance for glucose should accordingly be established for October and November 1994; whereas Regulation (EEC) No 1962/92 should be amended accordingly;
Whereas the measures provided for in this Regulation are in accordance with the opinion of the Management Committee for Cereals,
HAS ADOPTED THIS REGULATION:
Article 1
Article 1 of Regulation (EEC) No 1962/92 is hereby replaced by the following:
'Article 1
Pursuant to Article 2 of Regulation (EEC) No 1601/92, the quantity of products covered by CN code 1702, but not including the products covered by CN codes 1702 30 10, 1702 40 10, 1702 60 10 and 1702 90 30, in the forecast supply balance for October and November 1994 shall be 250 tonnes in total.'
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 from 1 October 1994.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 7 October 1994. | [
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Commission Regulation (EC) No 508/2003
of 20 March 2003
determining the extent to which applications lodged in March 2003 for import licences for certain pigmeat products under the regime provided for by the Agreement concluded by the Community with Slovenia can be accepted
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Commission Regulation (EC) No 571/97 of 26 March 1997 laying down detailed rules for the application in the pigmeat sector of the arrangements provided for in the Interim Agreement between the Community and Slovenia(1), as last amended by Regulation (EC) No 1006/2001(2), and in particular Article 4(4) thereof,
Whereas:
(1) The applications for import licences lodged for the second quarter of 2003 are for quantities less than the quantities available and can therefore be met in full.
(2) The surplus to be added to the quantity available for the following period should be determined.
(3) It is appropriate to draw the attention of operators to the fact that licences may only be used for products which comply with all veterinary rules currently in force in the Community,
HAS ADOPTED THIS REGULATION:
Article 1
1. Applications for import licences for the period 1 April to 30 June 2003 submitted pursuant to Regulation (EC) No 571/97 shall be met as referred to in Annex I.
2. For the period 1 July to 30 September 2003, applications may be lodged pursuant to Regulation (EC) No 571/97 for import licences for a total quantity as referred to in Annex II.
3. Licences may only be used for products which comply with all veterinary rules currently in force in the Community.
Article 2
This Regulation shall enter into force on 1 April 2003.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 20 March 2003. | [
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COUNCIL DECISION
of 21 September 2009
on the signing, on behalf of the European Union, and on the provisional application of certain provisions of the Agreement between the European Union and Iceland and Norway on the application of certain provisions of Council Decision 2008/615/JHA on the stepping up of cross-border cooperation, particularly in combating terrorism and cross-border crime and Council Decision 2008/616/JHA on the implementation of Decision 2008/615/JHA on the stepping up of cross-border cooperation, particularly in combating terrorism and cross-border crime, and the Annex thereto
(2009/1023/JHA)
THE COUNCIL OF THE EUROPEAN UNION,
Having regard to the Treaty on European Union, and in particular Articles 24 and 38 thereof,
Whereas:
(1)
Iceland, in a letter to the President of the Council dated 24 September 2008, and Norway, in a letter to the President of the Council dated 7 July 2008, have asked to be associated with the mechanisms for police and judicial cooperation between the Member States of the Union established by Council Decision 2008/615/JHA of 23 June 2008 on the stepping up of cross-border cooperation, particularly in combating terrorism and cross-border crime (1) and Council Decision 2008/616/JHA of 23 June 2008 on the implementation of Decision 2008/615/JHA on the stepping up of cross-border cooperation, particularly in combating terrorism and cross-border crime (2), and the Annex thereto.
(2)
Following the authorisation given on 24 October 2008 to the Presidency, assisted by the Commission and by the delegation representing the Member State which is to take on the forthcoming Presidency, negotiations with Iceland and Norway were finalised on an agreement on the application of certain provisions of Council Decision 2008/615/JHA on the stepping up of cross-border cooperation, particularly in combating terrorism and cross-border crime and Council Decision 2008/616/JHA on the implementation of Decision 2008/615/JHA on the stepping up of cross-border cooperation, particularly in combating terrorism and cross-border crime, and the Annex thereto (‘the Agreement’).
(3)
Subject to its conclusion at a later date, the Agreement that was initialled in Brussels on 28 November 2008 should be signed and the attached declaration be approved.
(4)
The Agreement caters for the provisional application of certain of its provisions. These provisions should be applied on a provisional basis pending the completion of the procedures for the formal conclusion of the Agreement and entry into force,
HAS DECIDED AS FOLLOWS:
Article 1
The signing of the Agreement is hereby approved on behalf of the European Union, subject to its conclusion.
The text of the Agreement is attached to this Decision.
Article 2
The declaration attached to this Decision shall be approved on behalf of the European Union.
Article 3
The President of the Council is hereby authorised to designate the person(s) empowered to sign the Agreement on behalf of the European Union subject to its conclusion.
Done at Brussels, 21 September 2009. | [
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Commission Regulation (EC) No 755/2002
of 2 May 2002
amending Regulation (EC) No 2805/95 fixing the export refunds in the wine sector
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Council Regulation (EC) No 1493/1999 of 17 May 1999 on the common organisation of the market in wine(1), as last amended by Regulation (EC) No 2585/2001(2), and in particular Article 63(3) third indent,
Whereas:
(1) Commission Regulation (EC) No 694/2002(3) modified Regulation (EC) No 2805/95(4) fixing the export refunds in the wine sector.
(2) Examination has revealed an error in the Annex concerning product code 2204 21 83 91/00.
The Regulation in question must be amended without delay,
HAS ADOPTED THIS REGULATION:
Article 1
In the Annex to Regulation (EC) No 694/2002, the amount of refund for product code 2204 21 83 91/00 is replaced by the following:
TABLE
Article 2
This Regulation shall enter into force on 3 May 2002.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 2 May 2002. | [
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COMMISSION REGULATION (EC) No 302/1999 of 10 February 1999 amending Regulation (EC) No 2756/98 establishing Community tariff quotas for 1999 for sheep, goats, sheepmeat and goatmeat falling within CN codes 0104 10 30, 0104 10 80, 0104 20 10, 0104 20 90 and 0204 and derogating from Regulation (EC) No 1439/95 laying down detailed rules for the application of Council Regulation (EEC) No 3013/89 as regards the import and export of products in the sheepmeat and goatmeat sector
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Council Regulation (EC) No 77/98 of 9 January 1998 on certain procedures for applying the Cooperation Agreement between the European Community and the Former Yugoslav Republic of Macedonia (1) and in particular Article 1 thereof,
Whereas Annex D to Agreement adopted by Council Decision (EC) No 831/97 of 27 November 1997 concerning the conclusion of a Cooperation Agreement between the European Community and the Former Yugoslav Republic of Macedonia (2) lays down the quantities of certain agricultural products that may be imported with a total exemption from customs duty subject to tariff quotas, ceilings or reference quantities;
Whereas accordingly it is necessary to adapt the rate of duty laid down in Annex III to Commission Regulation (EC) No 2756/98 of 18 December 1998 establishing Community tariff quotas for 1999 for sheep, goats, sheepmeat and goatmeat falling within CN codes 0104 10 30, 0104 10 80, 0104 20 10, 0104 20 90 and 0204 and derogating from Regulation (EC) No 1439/95 laying down detailed rules for the application of Council Regulation (EEC) No 3013/89 as regards the import and export of products in the sheepmeat and goatmeat sector (3);
Whereas the measures provided for in this Regulation are in accordance with the opinion of the Management Committee for sheepmeat and goatmeat,
HAS ADOPTED THIS REGULATION:
Article 1
Regulation (EC) No 2756/98 is amended as follows:
1. Article 3(3) is replaced by the following text:
'3. The quantities of live animals, expressed in live weight, falling within CN codes 0104 10 30, 0104 10 80 and 0104 20 90 for which the customs duty, applicable to imports originating in specific supplying countries, is reduced to zero for the period between 1 January and 31 December 1999, shall be those laid down in Annex III.`
2. Annex III is replaced by the following text:
'ANNEX III
QUANTITIES FOR 1999 REFERRED TO IN ARTICLE 3(3)
Order number 09.4035
Live sheep and goats (tonnes live weight) - Duty rate zero
TABLE
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, 10 February 1999. | [
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Commission Regulation (EC) No 1060/2003
of 20 June 2003
establishing the standard import values for determining the entry price of certain fruit and vegetables
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Commission Regulation (EC) No 3223/94 of 21 December 1994 on detailed rules for the application of the import arrangements for fruit and vegetables(1), as last amended by Regulation (EC) No 1947/2002(2), and in particular Article 4(1) thereof,
Whereas:
(1) Regulation (EC) No 3223/94 lays down, pursuant to the outcome of the Uruguay Round multilateral trade negotiations, the criteria whereby the Commission fixes the standard values for imports from third countries, in respect of the products and periods stipulated in the Annex thereto.
(2) In compliance with the above criteria, the standard import values must be fixed at the levels set out in the Annex to this Regulation,
HAS ADOPTED THIS REGULATION:
Article 1
The standard import values referred to in Article 4 of Regulation (EC) No 3223/94 shall be fixed as indicated in the Annex hereto.
Article 2
This Regulation shall enter into force on 21 June 2003.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 20 June 2003. | [
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COUNCIL DECISION
of 17 October 2005
repealing Decision 2001/131/EC concluding the consultation procedure with Haiti under Article 96 of the ACP-EC Partnership Agreement
(2005/756/EC)
THE COUNCIL OF THE EUROPEAN UNION,
Having regard to the Treaty establishing the European Community,
Having regard to the ACP-EC Partnership Agreement (1), which entered into force on 1 April 2003, and in particular Article 96 thereof,
Having regard to the internal agreement between the representatives of the governments of the Member States, meeting within the Council, on measures to be taken and procedures to be followed for the implementation of the ACP-EC Partnership Agreement (2), and in particular, Article 3 thereof,
Having regard to the proposal from the Commission,
Whereas:
(1)
On the basis of Decision 2001/131/EC (3), whereby, in accordance with Article 96(2)(c) of the ACP-EC Partnership Agreement, ‘appropriate measures’ were adopted according to which financial aid granted to Haiti was partially suspended.
(2)
Decision 2004/681/EC expires on 31 December 2005 and requires a review of the measures after six months.
(3)
In March 2005 a working group, set up by the presidency of the European Union in Haiti, the Commission of the European Communities and representatives of the Member States in Haiti, issued a report assessing progress on the Haitian Government’s explicit commitments as regards the essential elements of Article 9 of the ACP-EC Partnership Agreement, in particular respect for human rights, democratic principles and the rule of law, in view of the return of the country to full constitutional democratic governance.
(4)
The current situation in Haiti is very alarming as regards safety, respect for human rights and poverty. This was confirmed by the April 2005 report of the UN Security Council mission. Nevertheless, on several occasions the international community has reaffirmed its commitment to supporting the Interim Government and the Haitian people in their efforts on behalf of democracy and economic and social development.
(5)
The Interim Government deserves the confidence of the European Union to ensure the political transition, in particular by the organisation of the free and fair elections in full compliance with the announced electoral calendar,
HAS DECIDED AS FOLLOWS:
Article 1
Decision 2001/131/EC is hereby repealed.
Article 2
This Decision shall be published in the Official Journal of the European Union. The letter annexed to this Decision shall be sent to the Haitian authorities.
Article 3
The European Parliament shall be fully and immediately informed of this Decision.
Done at Luxembourg, 17 October 2005. | [
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COMMISSION DECISION
of 23 June 2005
on the eligibility of expenditure to be incurred by certain Member States in 2005 for the collection and management of the data needed to conduct the common fisheries policy
(notified under document number C(2005) 1858)
(Only the Danish, Dutch, English, Estonian, Finnish, French, German, Greek, Italian, Latvian, Lithuanian, Maltese, Polish, Portuguese, Spanish and Swedish texts are authentic)
(2005/486/EC)
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Council Decision 2000/439/EC of 29 June 2000 on a financial contribution from the Community towards the expenditure incurred by Member States in collecting data and for financing studies and pilot projects for carrying out the common fisheries policy (1), and in particular Article 4(3) thereof,
Whereas:
(1)
Decision 2000/439/EC lays down the conditions whereby the Member States may receive a contribution from the Community for expenditure incurred in their national programmes as provided for in Council Regulation (EC) No 1543/2000 of 29 June 2000 establishing a Community framework for the collection and management of the data needed to conduct the common fisheries policy (2). Under that decision the Commission, on the basis of the information provided by the Member States, decides each year on the eligibility of the expenditure forecast by the Member States and on the amount of the financial assistance from the Community for the following year.
(2)
The Commission has received the annual submissions of the national programmes from Belgium, Denmark, Germany, Estonia, Greece, Spain, France, Ireland, Italy, Cyprus, Latvia, Lithuania, Malta, the Netherlands, Poland, Portugal, Finland, Sweden and the United Kingdom that describe the data they intend to collect between 1 January 2005 and 31 December 2005 pursuant to Regulation (EC) No 1543/2000. They have also submitted applications for a financial contribution for the expenditure referred to in Article 4 of Decision 2000/439/EC.
(3)
Pursuant to Article 6 of Commission Regulation (EC) No 1639/2001 of 25 July 2001 establishing the minimum and extended Community programmes for the collection of data in the fisheries sector and laying down detailed rules for the application of Council Regulation (EC) No 1543/2000 (3), the Commission has examined Member States’ national programmes for 2005 and has assessed the eligibility of the expenditures on the basis of those programmes. A first instalment should be delivered to the Member States concerned in accordance with Article 6(1)(a) of Decision 2000/439/EC on the basis of that assessment.
(4)
A second instalment is to be forwarded, in 2006, following the transmission and acceptance by the Commission of a financial and technical report of activity detailing the state of completion of the aims set at the time of drawing-up the minimum and extended programmes, in accordance with Article 6(1)(b) of Decision 2000/439/EC and Article 6(2) of Regulation (EC) No 1639/2001.
(5)
The measures provided for in this Decision are in accordance with the opinion of the Management Committee for Fisheries and Aquaculture,
HAS ADOPTED THIS DECISION:
Article 1
This Decision establishes for 2005 the amount of the eligible expenditure for each Member State and the rates of the Community financial contribution for the collection and management of the data needed to conduct the common fisheries policy.
Article 2
Expenditure incurred in collecting and managing of the data needed to conduct the common fisheries policy, as set out in Annex I, shall qualify for a financial contribution from the Community not exceeding 50 % of the eligible expenditure for the minimum programme as provided for in Article 5 of Regulation (EC) No 1543/2000.
Article 3
Expenditure incurred in collecting and managing of the data needed to conduct the common fisheries policy, as set out in Annex II, shall qualify for a financial contribution from the Community not exceeding 35 % of the eligible expenditure for the extended programme as provided for in Article 5 of Regulation (EC) No 1543/2000.
Article 4
1. The Community shall pay a first instalment of 50 % of the financial contribution set out in Annexes I and II.
2. A second instalment shall be delivered in 2006, after the reception and approval of a financial and a technical report as provided for in Article 6(1)(b) of Decision 2000/439/EC.
Article 5
1. The euro exchange rate used to calculate the amounts eligible under this Decision shall be the rate in force in May 2004.
2. The expenditure declarations and applications for advances in national currency received from the Member States not participating in the third stage of economic and monetary union shall be converted into euro at the rate in force for the month in which those declarations and applications are received by the Commission.
Article 6
This Decision is addressed to the Kingdom of Belgium, the Kingdom of Denmark, the Federal Republic of Germany, the Republic of Estonia, the Hellenic Republic, the Kingdom of Spain, the French Republic, Ireland, the Italian Republic, the Republic of Cyprus, the Republic of Latvia, the Republic of Lithuania, the Republic of Malta, the Kingdom of the Netherlands, the Republic of Poland, the Portuguese Republic, the Republic of Finland, the Kingdom of Sweden and the United Kingdom of Great Britain and Northern Ireland.
Done at Brussels, 23 June 2005. | [
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COMMISSION REGULATION (EC) No 1554/2007
of 20 December 2007
fixing the maximum export refund for white sugar in the framework of the standing invitation to tender provided for in Regulation (EC) No 1060/2007
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 markets in the sugar sector (1), and in particular the second subparagraph and point (b) of the third subparagraph of Article 33(2) thereof,
Whereas:
(1)
Commission Regulation (EC) No 1060/2007 of 14 September 2007 opening a standing invitation to tender for the resale for export of sugar held by the intervention agencies of Belgium, the Czech Republic, Spain, Ireland, Italy, Hungary, Poland, Slovakia and Sweden (2) requires the issuing of partial invitations to tender.
(2)
Pursuant to Article 4(1) of Regulation (EC) No 1060/2007 and following an examination of the tenders submitted in response to the partial invitation to tender ending on 19 December 2007, it is appropriate to fix a maximum export refund for that partial invitation to tender.
(3)
The measures provided for in this Regulation are in accordance with the opinion of the Management Committee for Sugar,
HAS ADOPTED THIS REGULATION:
Article 1
For the partial invitation to tender ending on 19 December 2007, the maximum export refund for the product referred to in Article 1(1) of Regulation (EC) No 1060/2007 shall be 409,99 EUR/t.
Article 2
This Regulation shall enter into force on 21 December 2007.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 20 December 2007. | [
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COMMISSION DECISION of 16 January 1998 on protective measures with regard to fishery products from, or originating in Uganda, Kenya, Tanzania and Mozambique and repealing Decision 97/878/EC (Text with EEA relevance) (98/84/EC)
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Council Directive 90/675/EEC of 10 December 1990 laying down the principles governing the organisation of veterinary checks on products entering the Community from third countries (1), as last amended by Directive 96/43/EC (2), and in particular Article 19(6) thereof,
Whereas, following the outbreak of cholera in a number of African countries, the Commission, in accordance with Article 19(1) of Directive 90/675/EEC, adopted on its own initiative the decisions necessary to protect public health;
Whereas the provisions concerned subject consignments of frozen or processed fishery products from, or originating in Uganda, Kenya, Tanzania and Mozambique to sampling to ensure that they are healthy;
Whereas such checks must be capable of detecting, in particular, the presence of salmonellae and vibrions (Vibrio cholerae and Vibrio parahaemolyticus);
Whereas, because of time required to carry out microbiological analyses, the import into Community territory of fresh fishery products from, or originating in the countries concerned should be prohibited;
Whereas a derogation should be provided for fishery products which are caught, frozen and packed in their final packaging at sea and landed directly on Community territory;
Whereas the provisions of this Decision should be reviewed shortly in the light of the development of the epidemic;
Whereas the measures provided for in this Decision are in accordance wih the opinion of the Standing Veterinary Committee,
HAS ADOPTED THIS DECISION:
Article 1
This Decision shall apply to fresh, frozen and processed fishery products from, or originating in Uganda, Kenya, Tanzania and Mozambique.
It shall not apply to fishery products which are caught, frozen and packed in their final packaging at sea and exported directly to Community territory.
Article 2
The Member States shall prohibit the entry into their territory of fresh fishery products from, or originating in Uganda, Kenya, Tanzania and Mozambique.
Article 3
The Member States shall, on the basis of sampling plans and using suitable detection methods, subject all consignments of frozen or processed fishery products from or originating in Uganda, Kenya, Tanzania and Mozambique, with the exception of sterilised products, to a microbiological examination to verify that they present no threat to public health. The examination shall be carried out, in particular, to detect the presence of salmonellae and, in the case of frozen products, Vibrio cholerae and Vibrio parahaemolyticus (in the case of sea products).
Article 4
Member States shall only allow the entry into their territory and the consignment to another Member State of the fishery products in question where the results of the examinations are favourable.
Article 5
Where checks carried out on import by the authorities of a Member State confirm the presence of pathogenic agents covered by this Decision, they shall immediately inform the Commission and the other Member States, without prejudice to the measures to be taken with regard to the contaminated consignment.
Article 6
All costs incurred in applying this Decision shall be chargeable to the consignor, the consignee or their agents.
Article 7
Commission Decision 97/878/EC (3) is hereby repealed.
Article 8
The Member States shall adjust the measures they apply to trade to comply with this Decision. They shall immediately inform the Commission of the adjustments made.
Article 9
This Decision shall be reviewed before 31 January 1998.
Article 10
This Decision is addressed to the Member States.
Done at Brussels, 16 January 1998. | [
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Commission Decision
of 18 December 2002
relating to national provisions on limiting the importation and placement on the market of certain NK fertilisers of high nitrogen content and containing chlorine notified by France pursuant to Article 95(5) of the EC Treaty
(notified under document number C(2002) 5113)
(Only the French text is authentic)
(Text with EEA relevance)
(2003/1/EC)
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community, and in particular Article 95(6) thereof,
Whereas:
I. FACTS
1. Community legislation
1.1. Directive 76/116/EEC relating to fertilisers
(1) Council Directive 76/116/EEC of 18 December 1975 on the approximation of the laws of the Member States relating to fertilisers(1), as last amended by Directive 98/97/EC of the European Parliament and of the Council(2), aims to remove barriers to trade resulting from differences between Member States with regard to legislation on fertilisers. To achieve this, it has already established, at Community level, requirements that fertilisers must meet if they are to be placed on the market under the designation "EC fertiliser"(3), such as provisions regarding designation, definition, composition, labelling and packaging of the most important straight and compound fertilisers in the Community.
(2) Annex I to Directive 76/116/EEC defines the designation of the type of EC fertiliser and the corresponding requirements, in particular with respect to its composition, that every fertiliser marked EC fertiliser must fulfil. Annex I classes EC fertilisers by category according to the content of the primary nutrients, i.e. nitrogen, phosphorus and potassium, with these three elements being represented by the letters N, P and K, respectively. In particular, it distinguishes between straight fertilisers, which contain only one of the three fundamental nutrients, and compound fertilisers, which contain two or three.
(3) Straight primary nutrient fertilisers include, in particular:
- in the list of nitrogenous fertilisers, ammonium nitrates, produced chemically, and which include as an essential component ammonium nitrate with an N-nutrient content of at least 20 %,
- in the list of potassium fertilisers, potassium chloride, which is obtained from crude potassium salts and which includes as an essential component potassium chloride with a K-nutrient content, measured as potassium oxide (K2O), of at least 37 %.
(4) As for compound fertilisers with primary nutrients, which are products obtained chemically or by blending without addition of organic nutrients of animal or vegetable origin, they are subdivided into four subcategories according to their composition: NPK, NP, NK and PK fertilisers. Thus, NPK fertilisers must have a minimum total nutrient content of 20 %, with a minimum content for each of the nutrients of 3 % of nitrogen, 5 % of phosphorus measured as phosphorus pentoxide (P2O5) and 5 % of potassium measured as potassium oxide (K2O), respectively. As for NK fertilisers, they must have a minimum total nutrient content of 18 %, with a minimum content for each of the nutrients of 3 % of nitrogen and 5 % of potassium measured as potassium oxide.
(5) Pursuant to Article 2, the designation "EC fertiliser" can only be used for fertilisers belonging to one of the fertiliser types listed in Annex I and meeting the requirements laid down by Directive 76/116/EEC and Annexes I to III thereto.
(6) Article 7 introduces a free movement clause by stating: "Without prejudice to the provisions of other Community directives, Member States may not on grounds of composition, identification, labelling or packaging, prohibit, restrict or hinder the marketing of fertilisers marked 'EC fertiliser' which comply with the provisions of this Directive and the Annexes thereto."
(7) Lastly, Article 8 concerns the official checks that Member States may carry out to ensure that fertilisers placed on the market under the description "EC fertiliser" comply with the provisions of Directive 76/116/EEC and Annexes I and II thereto.
1.2. Council Directive 80/876/EEC relating to straight ammonium nitrate fertilisers of high nitrogen content
(8) Given the particular nature of straight ammonium nitrate fertilisers covered by Directive 76/116/EEC, and to the resulting requirements regarding public safety, health, and protection of workers, Council Directive 80/876/EEC of 15 July 1980 on the approximation of the laws of the Member States relating to straight ammonium nitrate fertilisers of high nitrogen content(4) laid down additional Community rules for these fertilisers. In the interest of public safety, the characteristics and properties distinguishing straight ammonium nitrate fertilisers of high nitrogen content from varieties of ammonium nitrate used in the manufacture of products used as explosives have been determined at Community level.
(9) Pursuant to its Article 1, Directive 80/876/EEC applies to straight ammonium nitrate fertilisers of high nitrogen content placed on the market in the Member States of the Community, without prejudice to the application of Directive 76/116/EEC. The term "fertilisers" means ammonium nitrate-based products manufactured chemically for use as fertilisers and containing more than 28 % by weight of nitrogen, which may contain inorganic additives or inert substances such as ground limestone or ground dolomite, calcium sulphate, magnesium sulphate and kieserite, with it being specified that the other inorganic additives or inert substances which are used in the compounding of the fertiliser must not increase its sensitivity to heat or its tendency to detonate.
(10) Directive 80/876/EEC lays down that straight ammonium nitrate fertilisers of high nitrogen content should conform to certain characteristics to ensure that they are harmless. Annex I specifies the characteristics and limits for straight ammonium nitrate fertilisers of high nitrogen content, which include, among other things, the maximum chlorine content, which is set at 0,02 % by weight. Moreover, Member States may require that such fertilisers be subjected to the test of resistance to detonation described in Annex II before or after they are placed on the market.
2. Recasting the Community legislation on fertilisers
(11) On 14 September 2001, the Commission adopted a proposal for a regulation of the European Parliament and of the Council relating to fertilisers(5), which recasts Council and Commission Directives on the approximation of the laws of the Member States relating to fertilisers.
(12) The aim of this proposal is to simplify the legislation relating to fertilisers by incorporating in a single text in the form of a regulation, Directives 76/116/EEC, 80/876/EEC, 87/94/EEC and 77/535/EEC, together with the various amendments and adaptations to technical progress of these Directives. All the technical specifications have been included in the Annexes. Common provisions have been separated from specific provisions, the latter being ordered according to the main groups of fertilisers that are currently included in the legislation. The technical annexes have been compiled from the original Directives and rearranged, and some minor changes have been introduced, though without making any changes to technical specifications on nutrient contents.
(13) Title II of the proposal for a regulation, entitled "Provisions applicable to specific types of fertilisers", includes a Chapter IV on ammonium nitrate fertilisers of high nitrogen content(6), which is largely based on the provisions of Directive 80/876/EEC, whose scope was partially expanded to cover compound ammonium nitrate fertilisers of high nitrogen content to take into account the new market situation. Under the old legislation, compounds would not have been subject to tests of resistance to detonation, which would have created a loophole that Member States wanted to avoid for safety reasons. As a result of this recasting, the test of resistance to detonation can now also be required by Member States for compound ammonium nitrate fertilisers of high nitrogen content.
(14) For this purpose, section 2 of Annex III to the proposal, which contains the technical provisions for ammonium nitrate fertilisers of high nitrogen content, describes the test of resistance to detonation for ammonium nitrate fertilisers of high nitrogen content which may be used for all ammonium nitrate fertilisers, straight and compound, of high nitrogen content. In contrast, section 1 of Annex III, which takes over the rules set out in Annex I to Directive 80/876/EEC only describes the characteristics of, and limits for, straight ammonium nitrate fertilisers of high nitrogen content.
(15) The Member States have already had the opportunity to examine this proposal, and, on 30 September 2002, the Council came to unanimous political agreement with a view to adopting the common position(7). As for the provisions which apply to ammonium nitrate fertilisers of high nitrogen content, the amendments put forward by the Member States were solely concerned with making the test of resistance to detonation obligatory for all fertilisers of high nitrogen content, with the person placing it on the market responsible for proving that the fertilisers had successfully passed this test of resistance to detonation, and adding an additional traceability requirement for which the person placing it on the market was also to be responsible. On the other hand, the text of Annex III was not changed.
3. National provisions notified
(16) France has notified new national provisions(8) intended to prohibit the importation and placement on the market of NK fertilisers with a nitrogen content resulting from ammonium nitrate of over 28 % by weight and chlorine content over 0,02 % by weight. A decree signed by the competent ministers is to make it obligatory to remove these fertilisers from the market, at the expense and under the responsibility of those who have them in their possession. The decree is accompanied by a memorandum concerning how to render such fertilisers inert.
(17) The notified decree, which bans the import and placement on the market of certain NK fertilisers of high nitrogen content and containing chlorine, is intended to suspend, in France, for a one-year period, the importation, placement on the market either free of charge or in return for a fee, and the holding for the purposes of sale or free distribution of NK fertilisers containing over 28 % by mass of nitrogen from ammonium nitrate and having a chlorine content of over 0,02 % (Article 1 of the draft decree).
(18) In addition to the ban, there will be a requirement for the person responsible for first placing these fertilisers on the French market to withdraw them from all places they are present under their responsibility and at their expense (Article 2 of the draft decree).
(19) Lastly, the notified decree states that products which have been withdrawn in this way cannot be placed on the French market again until they have been recognised as being in conformity with the legislation in force, following the addition of an inert charge which makes it possible to change the NK content (Article 3 of the draft decree).
(20) Moreover, in order to implement the provisions of Article 3, the regulatory framework will be complemented by a ministerial circular on rendering inert NK fertilisers with a nitrogen content resulting from ammonium nitrate of over 28 % and chlorine content over 0,02 %. The purpose of the circular will be to describe the procedures for rendering the fertilisers inert.
4. Justifications put forward by France
(21) Given the potential danger posed by certain fertilisers, the French authorities consider it necessary to introduce special provisions for NK fertilisers (nitrogen-potassium) of high nitrogen content (N) from ammonium nitrate (NH4NO3) and with a potassium (K) content, measured as potassium oxide (K2O), of 5 %, with potassium in the form of potassium chloride (KCl). These national measures derogate from the provisions of Directive 76/116/EEC for NK fertilisers marked "EC fertiliser".
(22) The French authorities have put forward the reasons which led them to feel the introduction of the said provisions was desirable, arguing that, with regard to NK fertilisers, France is certainly in a situation which enables it to take advantage of the derogation allowed for under Article 95(5) of the EC Treaty. Their argument can be summed up as follows.
(23) To begin, the French authorities emphasise that, although Directive 76/116/EEC defines EC NK fertilisers, it does not specify the form under which the potassium can be included. From this, they infer that there is nothing to prohibit EC NK fertilisers being manufactured by mechanically blending a straight ammonium nitrate fertiliser of high nitrogen content, or even pure ammonium nitrate, i.e. a product with a nitrogen content resulting from ammonium nitrate of over 28 %, together with potassium chloride, a potassium salt.
(24) The French authorities then point out that, since 1995, a series of Council regulations(9) has established anti-dumping duties on imports of straight ammonium nitrate fertilisers of high nitrogen content originating in Russia, Ukraine and Poland. The French authorities state that some producers impacted by this measure came up with the idea of blending ammonium nitrate fertilisers of high nitrogen content with potassium chloride in such a way that the potassium content of the mixture, measured as potassium oxide, is at least equal to 5 %. As the French authorities note "if the potassium content of the mixture was less than 5 %, the product could no longer be considered to be an EC NK fertiliser, but only a straight ammonium nitrate fertiliser of high nitrogen content, and would then have to pay anti-dumping duties"(10).
(25) According to the French authorities, these NK fertilisers, which are in theory mixtures of straight ammonium nitrate fertilisers of high nitrogen content and potassium chloride, have two features: firstly, they do not require payment of anti-dumping duties and, secondly, they are not subject to the requirements of Directive 80/876/EEC. The French authorities are of the opinion that, as a result, there is nothing to prevent replacing this straight ammonium nitrate fertiliser of high nitrogen content with a product which does not comply with Directive 80/876/EEC, or even with pure ammonium nitrate, also known as technical-grade ammonium nitrate, which is used in the production of industrial explosives.
(26) The French authorities examined these fertilisers from two different perspectives: firstly, their theoretical and actual conformity with the specifications set by Community legislation, in order to determine whether these NK fertiliser mixtures can be designated "EC fertilisers", and secondly, whether they are dangerous. This was determined, in particular, through the analysis by the Directorate-General for Competition, consumer affairs and fraud prevention (DGCCRF)(11) of samples taken from imported batches.
(27) Given the results of these analyses(12), the French authorities questioned the merits of the designation "EC fertiliser 32-0-5" used for marketing these products. As for "EC fertiliser 33-0-5", the designation under which some of these NK fertilisers arrive, the French authorities are of the opinion that the actual nitrogen content can never match the declared content, since the minimum nitrogen content of these fertilisers should be 35,449 %, even if a tolerance of ±1,1 % is applied, which, pursuant to Article 8(3) of Directive 76/116/EEC, cannot be done systematically. From this, they deduce that these products do not have the claimed nutrient content.
(28) Having made this observation, the French authorities addressed the problem of the potential danger of these NK fertilisers in the following words: "In addition to the observed deviations between the stated nutrient content and the actual content, there is the problem of the potential danger posed by these products, particularly in terms of risk to the environment and in the workplace, issues which are not addressed at all by Directive 76/116/EEC. Following the catastrophe in Toulouse, and given the fact that ammonium nitrate is added to potassium chloride, determining whether such products might be dangerous is a real issue"(13).
(29) According to the French authorities, NK fertilisers may have slight explosive properties similar to those of certain straight nitrogen fertilisers, although this is only a risk with fertilisers which have a relatively high ammonium nitrate content(14). As these NK fertilisers have a high ammonium nitrate content, the French authorities are of the opinion that "there is a risk of explosion which, although low, is definitely real given that the potassium is present in the form of potassium chloride"(15).
(30) On this subject, the French authorities point out that:
- it is well known that chlorine is a sensitising agent with regard to the decomposition of ammonium nitrate, which explains the 0,02 % limit by weight on chlorine content for straight ammonium nitrate fertilisers of high nitrogen content, pursuant to point 5 of Annex I to Directive 80/876/EEC,
- when this question was referred to the Committee on Explosive Substances(16) in 2001, it issued a recommendation(17) "designating 'NK fertilisers with an ammonium nitrate content of over 90 %, i.e. a total nitrogen content of over 28 %, with a high chloride content in the form of potassium chloride' as 'accidental explosives'"(18),
- these mixtures of potassium chloride and ammonium nitrate may produce heat, generally without posing any safety problems(19),
- however, with chlorine acting as a catalyst, a reaction may occur, triggering a self-sustained decomposition which releases toxic smoke and poses a risk which should not be ignored(20), given the considerable amounts of ammonium nitrate in the mixtures.
In the opinion of the French authorities, these risks of explosion and decomposition explain why the precautions taken when transporting NK fertilisers, either by land or by sea, are stricter than those which apply to the transport of straight ammonium nitrate fertilisers of high nitrogen content.
(31) The French authorities point out that, on this subject, Article 1(3) of Directive 80/876/EEC relating to straight ammonium nitrate fertilisers of high nitrogen content states that inorganic additives or inert substances, other than those mentioned in paragraph 2, which are used in the compounding of the fertiliser must not increase its sensitivity to heat or its tendency to detonate. The French authorities feel that, since potassium chloride cannot be considered to be an inert substance with regard to ammonium nitrate, given that mixing ammonium nitrate and potassium chloride can, under certain conditions, result in an exothermic reaction which may trigger self-sustained decomposition. From this, the French authorities conclude that "although the products placed on the French market are unquestionably EC fertilisers, at least when they comply with the regulations, they also have the characteristic of being NK fertilisers, that is, compound fertilisers, with a nitrogen content resulting from ammonium nitrate of over 28 % and a stated chlorine content of 3,78 %"(21).
(32) The French authorities also note that the nitrogen content from ammonium nitrate of these NK fertilisers is significantly higher than that found in NK fertilisers marketed up to now. In their opinion, the lack of knowledge regarding these fertilisers, which did not exist when Directive 76/116/EEC was adopted, requires that a prudent approach be taken given the experience acquired since the mid-1950s, a time since when the nitrogen content from ammonium nitrate of compound fertilisers has increased considerably. Therefore, the French authorities are of the opinion that "as the chlorine content of these straight fertilisers must be lower than 0,02 % by weight, it seems logical that the same upper limit should be set for the chlorine content of these NK fertilisers"(22).
(33) Within the framework of the procedure mentioned above(23), the French authorities submitted some additional observations concerning notification under Article 95(5) of the EC Treaty, which the Commission took into account in its assessment. The French authorities consider that Article L.255-1 of the farm laws, introduced by Law 79-595 of 13 July 1979 relating to the organisation of checks on fertilisers, allows them to prohibit the placement on the market of NK fertilisers marked "EC fertilisers". They concede that Directive 76/116/EEC undeniably includes harmonisation measures concerning in particular the composition, identification, labelling and packaging of fertilisers. However, the French authorities consider that there are no provisions in Community legislation as it currently stands regarding the intrinsic safety of all compound fertilisers marked "EC fertiliser". According to them, certain advertisements(24) make it clear that these NK fertilisers are no more than "high-dosage ammonium nitrate based fertilisers" to which the required minimum amounts of potassium chloride have been added so that they may be marketed as "EC fertilisers". The French authorities state that, although the decision to ban these products was mainly based on safety concerns, the checks carried out by the authorities(25), which led them to question whether the ban truly related to EC fertilisers, were also a factor. The deviations observed between the stated nutrient content and the actual content caused the French authorities to conclude that these fertilisers did not meet the specifications described in Directive 76/116/EEC. They feel that it is difficult to maintain that the free movement clause in Article 7 of Directive 76/116/EEC should apply to these fertilisers simply because they are designated "EC fertilisers".
New scientific evidence concerning the protection of the environment or the working environment
(34) To support their request, in addition to the arguments repeated above, the French authorities provided a number of documents, more specifically, Chapter 25, entitled "Ammonium Nitrate-based Fertilisers" of Louis Médard's Les explosifs occasionnels, Techniques et documentation, 1979, and the Committee on Explosive Substances' recommendation, without providing the additional scientific information which was the basis of this recommendation. They also refer to the scenarios looked at as part of the investigation of the explosion of the AZF Factory in Toulouse, without providing any documentation on it. Other than a number of theoretical calculations included in their argument, the French authorities did not provide any other documents or information concerning the risk posed by these NK fertilisers.
(35) The French authorities note that, as the compound fertilisers placed on the market up to the mid-1950s contained considerably less nitrogen, particularly in the form of nitrogen from ammonium nitrate, than those which have been manufactured since then, self-sustained decomposition was practically unknown. They point out that, from the mid-1950s, an increase in nitrogen content from ammonium nitrate initially led to spectacular accidents caused by the decomposition of compound fertilisers.
(36) According to the French authorities, "nothing currently allows us to assert that these new NK fertilisers, which, first of all, contain over 80 % ammonium nitrate or ammonium nitrate fertiliser of high nitrogen content, and, second of all, at least 7,93 % potassium chloride, will not undergo complex reactions resulting in large-scale accidents"(26). They believe that this is even more likely, given that potassium chloride is not an inert substance with regard to ammonium nitrate, and that the analyses of the samples taken from these fertilisers have shown considerable differences between the stated nutrient content and the actual content.
(37) The French authorities also point out that it should not be forgotten that on 21 September 2001, an explosion at the Grande Paroisse factory in Toulouse, which manufactured technical-grade ammonium nitrate and straight ammonium nitrate fertilisers of high nitrogen content, killed 30 people, including 22 employees, and caused considerable environmental damage. "This explosion occurred in a warehouse where non-compliant products of high nitrogen content from ammonium nitrate were mixed. This concerned, firstly, ammonium nitrate which could not be marketed as straight fertiliser since it did not meet the specifications of either Directive 80/876/EEC or the French standard NF U 42-001, and, secondly, technical-grade ammonium nitrate that did not meet the specifications set by the clients"(27). The French authorities point out that, not far from the explosion, a considerable amount of straight ammonium nitrate fertiliser of high nitrogen content suffered only material damage (broken and scattered sacks), while the product itself remained intact.
(38) The French authorities state that "up to now, the causes of this explosion are still unknown, and no theories as to them have yet been definitively ruled out"(28). They specify that one of the theories put forward to explain the catastrophe is that waste containing chlorine was mistakenly placed in a warehouse used to store ammonium nitrate. In the opinion of the French authorities, "it would therefore seem reasonable, as an application of the precautionary principle, to take measures to prevent the placement on the market of NK fertilisers which are mixtures of considerable quantities of ammonium nitrate or ammonium nitrate fertiliser of high nitrogen content with substances that increase the sensitivity to heat and tendency to detonate of ammonium nitrate"(29). They emphasise that, although it is measured as potassium oxide, the potassium is present in the form of a salt, potassium chloride, and that it is well known that potassium chloride is not inert with regard to ammonium nitrate.
Specific characteristics of the problem
(39) The French authorities feel that "due to its size, the French market for straight ammonium nitrate fertilisers of high nitrogen content differs from the market in the other Member States of the Community. In fact, the French market alone accounts for 40 % of the total EU market for this type of fertiliser. Most of the fertiliser is imported, and imports from non-EU member countries account for 23,4 %"(30).
(40) Thus, over the last several years, the French authorities have witnessed considerable growth in imports of NK fertilisers with a stated nitrogen content resulting from ammonium nitrate of over 28 % and a stated potassium content, in the form of potassium chloride, and measured as potassium oxide, equal to 5 %. According to the figures provided by the French authorities, imports of these types of products were as follows: in 1997-1998: 0 tonnes; in 1998-1999: 20000 tonnes; in 1999/2000: 40000 tonnes; in 2000/2001: 88000 tonnes; and in the 2001 calendar year alone, 76000 tonnes were unloaded in French ports.
(41) The French authorities then point out that these NK fertilisers appeared on the French market shortly after anti-dumping duties on imports of ammonium nitrate were established(31), for the purpose of avoiding them, as can be seen from the advertising done by certain importers of ammonium nitrate-based fertilisers originating in Russia(32). According to the French authorities, "the specialist press(33), which reflects the market, considers this product to be more of a variant of a straight ammonium nitrate fertiliser of high nitrogen content than a compound NK fertiliser"(34).
5. General information on the potential dangers posed by compound fertilisers of high nitrogen content (NPK fertilisers)
(42) The following information is taken from Chapter 25, "Ammonium nitrate-based fertilisers", of Louis Médard's Les explosifs occasionnels, Techniques et documentation, 1979, which was included with the French authorities' notification to support their request for a derogation(35).
Nature of the potential dangers posed by NPK fertilisers
(43) According to Louis Médard, almost all solid NPK fertilisers contain ammonium nitrate and, depending on their composition and partly on their structure, they may pose the following dangers:
- fertilisers with a relatively high ammonium nitrate content may have slight explosive properties similar to those of certain straight nitrogen fertilisers,
- when heated sufficiently, certain NPK fertilisers may undergo nitrogen decomposition similar to that in warm NO3NH4 solutions. This is an autocatalytic reaction which, once it has been triggered, will affect all of the substance present. Chlorides favour decomposition,
- in many fertilisers which include both ammonium nitrate and a chloride in their composition, a special type of deflagration can be triggered if sufficient heat is applied to one point of the substance. This deflagration spreads very slowly from the point where it was started and is known as "self-sustained decomposition", or alternatively "cigar-burning" of the fertiliser. The catalytic reaction of the chloride ions in the fertiliser makes it easy to trigger the decomposition,
- certain fertilisers are liable to heat spontaneously while being stored, often by approximately 40 degrees from the ordinary temperature, and if the temperature reached is high enough, it may lead to the nitrogen decomposition referred to in the second indent(36).
Spontaneous heating of NPK fertilisers
(44) This phenomenon of spontaneous heating by 20 degrees to 30 degrees may occur in particular due to the presence of organic matter, for example, in phosphate deposits when the fertilisers are stored in large piles. This heating of fertilisers which contain organic matter should not be confused with the very moderate rise in temperature of approximately 10 degrees which may be seen with certain compound fertilisers which do not contain any organic matter. Such slight rises are caused by the formation of new salts as a result of the redistribution of anions and cations, and do not pose a danger(37).
Characteristics of "cigar-burning" in NPK fertilisers
(45) "Cigar-burning" may occur in NPK fertilisers which contain both chloride and ammonium nitrate (or salts which include nitrate ions and ammonium ions, such as KNO3 and NH4Cl). Moreover, in most NPK fertilisers, potassium is present in the form of potassium chloride. However, a different, insufficiently purified, potassium salt obtained from potassium chloride would provide chloride ions. No more than 0,5 % chloride is needed in a fertiliser for such decomposition to be possible. If a large, solid residue (skeleton) can form, this fosters the propagation of the decomposition. For this reason, cigar-burning is more likely with fertilisers that contain calcium phosphate then with those that contain ammonium phosphate.
(46) With fertilisers which form an unconfined mass, at one atmosphere of pressure, cigar-burning has the following characteristics, among others:
1. it is triggered by local heating, following a certain induction period. The temperature which must be reached to trigger the cigar-burning depends on the kind of fertiliser. If the source of heat has a low temperature (120° to 160°), it will require a considerable length of time, up to a few hours, to trigger the propagation of the decomposition. As a rule, the heating must concern a considerable amount of fertiliser. If it is restricted to an extremely small area, the resulting decomposition of the fertiliser will not be sufficient to propagate itself beyond the heated area;
2. for NPK fertilisers, the speed of the cigar-burning deflagration can vary from 3 cm/h to 150 cm/h;
3. the temperature profile at the deflagration front (which is approximately 1 dm wide) shows a preheating zone (often from 2 cm to 3 cm wide) where the temperature of the substance is raised to 120° to 135°, followed by a zone where the temperature increases rapidly (100° or more per mm), reaching a peak in temperature, beyond which the temperature gradually drops back;
4. certain trace elements, particularly copper, are remarkable catalysts(38);
5. sulphur contamination in NPK fertilisers has the effect of facilitating cigar-burning(39).
Deflagration dangers posed by NPK fertilisers
(47) The speed of unconfined deflagration of NPK fertilisers, which are susceptible to it, is still very low (100 to 1000 times less than common pyrotechnic compositions). It does not, therefore, have any destructive mechanical effects. The damage caused by cigar-burning in NPK fertilisers results, above all, from the temperature reached by the substance, which is high enough to burn wood. The gases produced to do not have any particular combustive effect and, consequently, cannot increase the speed of development of fire(40).
Preventing the decomposition of NPK fertilisers
(48) According to Louis Médard, when storing fertilisers, it is crucial to avoid anything that might trigger decomposition. He states that studies of accidents(41) have revealed that the main triggers are: incandescent lamps left on in contact with the fertiliser; leaving the fertiliser in contact with a warm object undergoing a repair which involves the use of a flame, or subsequent to such a repair; using defective electrical equipment which allows hotspots to touch the fertiliser; and the presence of pipes containing hot liquids in the room or the ship's hold where the fertiliser was brought.
(49) Therefore, during both storage and transport, an effort should be made to ensure that none of the above sources of heat come into contact with the fertiliser, and also that any substances which might begin a fire be placed far away from the fertiliser, as the risk is less a function of the quantity of the combustible material than of its proximity to the fertiliser. Placing substances which might react dangerously or substances of which one is unsure of the composition near the fertiliser must also be avoided. Lastly, explosives must be strictly prohibited(42).
II. PROCEDURE
(50) In a letter dated 12 June 2002 and notified to the Commission on 19 June 2002, the French Permanent Representation to the European Union informed the Commission that, in accordance with Article 95(5) of the EC Treaty, France intended to introduce national provisions regarding certain NK fertilisers of high nitrogen content and containing chlorine beyond those provided for in Directive 76/116/EEC.
(51) For this purpose, the French authorities notified a draft decree banning the importation and placement on the market of certain NK fertilisers of high nitrogen content and containing chlorine, together with a draft circular on rendering such fertilisers inert and a document setting out the arguments in justification of their request for derogation.
(52) By a letter dated 31 July 2002, the Commission informed the French authorities that it had received the notification under Article 95(5) of the EC Treaty and that the six-month period for its examination pursuant to Article 95(6) had begun on 20 June 2002, the day after the notification was received.
(53) By a letter dated 2 August 2002, the Commission informed the other Member States of the request received from the French Republic. The Commission also published a notice regarding the request in the Official Journal of the European Communities(43) to inform the other parties concerned of the draft national measures that France intended to adopt(44).
III. LEGAL ANALYSIS
1. Consideration of admissibility
(54) The notification submitted by the French authorities on 19 June 2002 is intended to obtain approval for the introduction of new national provisions which are incompatible with Directive 76/116/EEC, a measure concerning the approximation of the laws, regulations and administrative provisions of the Member States, aiming at the establishment and operation of the internal market.
(55) Article 95(5) of the Treaty reads as follows: "If, after the adoption by the Council or by the Commission of a harmonisation measure, a Member State deems it necessary to introduce national provisions based on new scientific evidence relating to the protection of the environment or the working environment on grounds of a problem specific to that Member State arising after the adoption of the harmonisation measure, it shall notify the Commission of the envisaged provisions as well as the grounds for introducing them."
(56) Directive 76/116/EEC covers fertilisers marked "EC fertiliser". Certain types of fertilisers, such as organic fertilisers, are still currently subject to national regulations, rather than Directive 76/116/EEC. This Directive harmonised at Community level the rules on the types of EC fertilisers listed in its Annex I. Therefore, EC fertilisers listed in Annex I to Directive 76/116/EEC are governed solely by the provisions of that Directive, particularly with regard to designation, definition, composition, labelling and packaging, and the free movement clause should therefore apply to them, provided that they comply with the requirements of Directive 76/116/EEC. Only straight ammonium nitrate fertilisers of high nitrogen content must, if they are to be placed on the market as fertilisers, also comply with the additional Community rules laid down in Directive 80/876/EEC.
(57) When comparing the provisions of Directive 76/116/EEC and the national measures notified, it emerges that the latter are more restrictive than those contained in the Directive in the following aspects:
1. the importation and placement on the market of NK fertilisers with a nitrogen content resulting from ammonium nitrate of over 28 % by weight and a chlorine content of over 0,02 % will be prohibited;
2. NK fertilisers with a nitrogen content resulting from ammonium nitrate of over 28 % and a chlorine content of over 0,02 % will be immediately withdrawn from the market.
(58) As required by Article 95(5) of the EC Treaty, France notified the Commission of the exact wording of the provisions going beyond those set out in Directive 76/116/EEC, including with the request an explanation of the reasons which, in its opinion, justify the introduction of those provisions.
(59) The notification submitted by France in order to obtain approval for the introduction of national provisions derogating from the provisions of Directive 76/116/EEC is therefore to be considered admissible under Article 95(5) of the EC Treaty.
2. Assessment of merits
(60) In accordance with Article 95 of the Treaty, the Commission must ensure that all the conditions enabling a Member State to avail itself of the possibilities of derogation provided for in this Article are fulfilled.
(61) The Commission must therefore assess whether the conditions provided for by Article 95(5) of the Treaty are met. This Article requires that when a Member State deems it necessary to introduce national provisions derogating from a harmonisation measure, that Member State should base the introduction on:
(a) new scientific evidence relating to the protection of the environment or the working environment;
(b) grounds of a problem specific to that Member State arising after the adoption of the harmonisation measure.
(62) Moreover, under Article 95(6) of the EC Treaty, the Commission is either to approve or reject the draft national provisions in question after having verified whether or not they are a means of arbitrary discrimination or a disguised restriction on trade between Member States, and whether or not they shall constitute an obstacle to the functioning of the internal market.
2.1. Evaluation of the position of France
(63) First of all, the Commission feels it must point out that the national measures to which Article 95(5) of the EC Treaty applies are those which introduce additional requirements on the basis of the protection of the environment or the working environment, on grounds of a problem specific to that Member State arising after the adoption of the harmonisation measure.
(64) Therefore, the national provisions notified and the reasons given by the Member State are examined in light of the Community harmonisation measure from which they derogate, in this case, the provisions of Directive 76/116/EEC regarding NK fertilisers marked "EC fertiliser", in so far as the draft decree imposes additional requirements on the placement on the market of EC NK fertilisers, particularly with regard to their composition, such as maximum nitrogen and chloride contents. Directive 76/116/EEC does not itself set any maximum limit on the nitrogen, potassium and chloride content of NK fertilisers. Annex I simply specifies, in the latter case, that the words "low in chlorine" may be used only where the chlorine content does not exceed 2 %, and that guaranteeing a certain chlorine content is permitted. This clearly indicates that NK fertilisers may have a chlorine content of over 2 %. As a result, the national measures notified, which provide for banning NK fertilisers containing over 28 % by mass of nitrogen from ammonium nitrate and having a chlorine content of over 0,02 %, go beyond the Community provisions.
(65) The initial postulate is therefore that the NK fertilisers concerned by the draft decree meet the requirements of Directive 76/116/EEC, given that the designation "EC fertiliser" can only be used for fertilisers belonging to one of the fertiliser types listed in Annex I and meeting the requirements laid down by the said Directive and Annexes I to III thereto. Member States may take all necessary measures to ensure that the designation "EC fertiliser" can only be used for fertilisers belonging to one of the fertiliser types listed in Annex I and meeting the requirements laid down by the Directive. Moreover, Article 8 of Directive 76/116/EEC specifically provides for checks by Member States on the compliance of EC fertilisers with the requirements of the said Directive(45). The Commission therefore does not deny Member States the option of taking measures against fertilisers that do not meet the requirements of Directive 76/116/EEC. However, the Commission feels it must be pointed out that fertilisers with a total nutrient content (N + K2O) of over 18 % by weight, as well as a nitrogen content of over 3 % and a potassium content of over 5 %, pursuant to Directive 76/116/EEC, fall within the definition of Community fertilisers designated "EC NK fertilisers". The free movement clause in Article 7 of Directive 76/116/EEC should therefore apply to them in so far as they comply with the requirements of Directive 76/116/EEC.
(66) It should also be pointed out that, up to now, the Court's case-law has been consistent in requiring that the conditions of admissibility for a derogation from the fundamental rules of Community law must be interpreted restrictively. As the provision in question creates an exception to the principles of uniform application of Community law and the unity of the market, Article 95(5) of the EC Treaty must, as with all measures relating to derogations, be interpreted in such a way that its scope is not extended beyond the cases for which it formally provides. As Article 95 is precisely the expression of such a derogation, it must be interpreted strictly and only be applied under strict conditions with regard to all of the justification required.
2.1.1. The burden of proof
(67) It has to be noted that, in the light of the time frame established by Article 95(6) of the EC Treaty, the Commission, when examining whether the draft national measures notified under Article 95(5) are justified, has to take as a basis "the grounds" put forward by the Member State. This means that, under the Treaty, the responsibility of proving that these measures are justified lies with the Member State making the request. Given the procedural framework established by Article 95 of the EC Treaty, including in particular a strict deadline for a Decision to be adopted, the Commission normally has to restrict itself to examining the relevance of the elements which are submitted by the requesting Member State, without having to seek possible justifications itself.
2.1.2. New scientific evidence concerning the protection of the environment or the working environment regarding a problem specific to France arising after the adoption of the harmonisation measure
(68) The French authorities believe the explanations they have provided(46) demonstrate that "these fertilisers were placed on the French market only recently, and as the French market is unique, this problem is, in fact, specific to France and arose after the adoption of the harmonisation measure"(47).
(69) The French authorities argue that Directive 76/116/EEC does not specify the form in which the potassium should be included in NK fertilisers, which makes it possible to use potassium chloride(48). In addition, they imply that such NK fertilisers, which are the result of physically mixing straight ammonium nitrate fertilisers of high nitrogen content (also called "high-dosage ammonium nitrate-based fertilisers") and adding potassium chloride, should really be considered straight fertilisers rather than compound EC fertilisers It is true that Directive 76/116/EEC does not give the form in which the potassium should be added to NK fertilisers or to any type of compound fertiliser(49). On the other hand, it does specify that compound fertilisers are products obtained chemically or by blending without addition of organic nutrients of animal or vegetable origin(50). Directive 76/116/EEC therefore also covers compound fertilisers produced by blending. Moreover, Louis Médard specified that compound fertilisers are sometimes produced by blending two or three straight fertilisers(51). The Commission therefore considers that if the NK fertilisers referred to in the national measures notified meet the requirements of Directive 76/116/EEC, they are considered to be compound NK fertilisers, and fall within the scope of the Community legislation.
(70) The French authorities provide data concerning the size of the French market for straight ammonium nitrate fertilisers of high nitrogen content and the proportion of it made up of imports from non-member countries. It therefore appears that they believe the appearance and growth in these NK fertilisers is a new problem that is specific to France. They state that the specialist press considers these ammonium nitrate NK fertilisers of high nitrogen content to be more a variant straight fertiliser(52) than a compound fertiliser. The Commission feels that three excerpts taken from journals cannot, on their own, be considered to be a reflection of the market. Moreover, contrary to the French authorities claim(53), reading these excerpts shows that the specialised press does actually distinguish between straight ammonium nitrate fertilisers (AN) and NK or NPK fertilisers(54). As a result, the characteristics of the French market for straight ammonium nitrate fertilisers of high nitrogen content cannot be deemed to show that there is a unique situation which justifies national derogations for certain compound fertilisers, unless it is accepted that the specific problem described is purely economic, and does not therefore have a direct link with the objectives of protecting the environment or the working environment.
(71) Moreover, although it is true that this type of NK fertiliser only came on the market recently, following the adoption of the harmonisation measure, it is not limited to the French market. And France has not, in fact, demonstrated that these fertilisers were solely intended for the French market. The data provided by the French authorities do not make it possible to show that there is a problem specific to France as a result of the placement on the market of these NK fertilisers. No information concerning the existence and extent of similar events in the Member States has been provided. This would be needed to be able to assess the specific nature of the situation described by France. If the potential danger posed by these fertilisers, which was brought up by the French authorities as a way of justifying their national measures(55), is taken into account, one must also accept that the problem of transporting and storing such fertilisers is shared by all the Member States and can in no way be seen as a characteristic specific to France on which national derogations may be based.
(72) The introduction of national measures that are stricter than Community standards needs to be justified by new scientific evidence concerning the protection of the environment or the working environment, with the latter covering only non-economic reasons related to the safety, health and hygiene of workers.
(73) Whether the scientific evidence is new must be judged in light of developments in scientific knowledge. The purpose of Article 95(5) of the EC Treaty is to make it possible to use new scientific evidence to solve specific problems arising in Member States after harmonisation measures have been adopted.
(74) It is therefore up to the Member State which has stated there is a need for a derogation to provide new scientific evidence, such as an assessment of the risk for the environment or the working environment, or scientific information and studies or other research in progress, while taking into account the effects of the Community measures which have already been adopted.
(75) Taking this into consideration, it seems that the documentation and arguments put forward by the French authorities in support of their request for a derogation can in no way be considered to be new scientific evidence within the meaning of Article 95(5) of the EC Treaty.
(76) In light of the above(56), particularly the excerpts from Louis Médard's work included with the French notification, it is clear that, although NK fertilisers of high nitrogen content did only come on the French market recently, the potential danger of such types of fertiliser of high nitrogen content, notably their slight explosive properties and self-sustained decomposition, were nonetheless known before Directive 76/116/EEC was adopted, as the French authorities themselves concede(57). Furthermore, according to this scientific literature, the various types of NPK fertilisers which contain both chloride and ammonium nitrate, that is, NK fertilisers and NPK or NP fertilisers, are all subject to self-sustained decomposition(58). As for preventive measures, they have also been highlighted for some time, with the crucial point being the avoidance of anything that might trigger decomposition(59) when storing such products.
(77) As for the recommendation of the Committee on Explosive Substances referred to by France, the said Committee looked at the potential danger posed by NK fertilisers (nitrogen-potassium) with an ammonium nitrate content of over 90 %, i.e. a total nitrogen content of over 31,5 %, with a high chloride content in the form of potassium chloride, at its meetings of 23 January and 28 March 2001. In its recommendation, this committee expressed a desire to "draw the attention of the competent authorities to this type of blend which, though it cannot be considered to be an explosive as generally understood, may occasionally have explosive properties"(60). Thus, contrary to what the French authorities maintain(61), the Committee on Explosive Substances did not call NK fertilisers with an ammonium nitrate content of over 90 % "accidental explosives", but only recognised that they might occasionally have explosive properties. It should be noted that this observation is not new(62) and that no new scientific evidence has been provided in support of this conclusion.
(78) The Commission considers that the French authorities have extrapolated from the conclusions of the Committee on Explosive Substances. What the Committee on Explosive Substances in fact recommended was "that very close attention should be paid to the correct classification of NK fertilisers (nitrogen-potassium) with an ammonium nitrate content of over 90 %, i.e. a total nitrogen content of over 31,5 %, with a high chloride content in the form of potassium chloride with regard to transport, and that the relevant transport regulations be strictly applied"(63). It expressed a desire that "before any such product is imported or placed on the market, the person responsible for importing it or placing it on the market should be required to have samples taken from the product analysed so as to ensure that the product in question complies strictly with the regulations in force. More specifically, an analysis should be carried out by a well known laboratory established in the European Union to guarantee that samples taken recently from the product successfully passed the test of resistance to detonation described in Directive 87/94/EEC of 18 December 1986, as amended by Directive 88/126/EEC of 22 December 1987"(64). Therefore, its recommendations refer only to NK fertilisers where the content is over 31,5 % - not 28 %. Moreover, the Committee on Explosive Substances simply recommended that there be a suitable classification of these fertilisers for transport purposes, and in order to verify that they comply strictly with the regulations, in particular by submitting them to the test of resistance to detonation described in Directive 87/94/EEC. It should be noted that Directive 76/116/EEC does not require this test. Up to now, the test of resistance to detonation has only been required for straight fertilisers of high ammonium nitrate content pursuant to Directive 80/876/EEC.
(79) Moreover, the new scientific evidence required under Article 95(5) of the EC Treaty must relate to the protection of the environment or the working environment. However, in this case, the French authorities have not provided any new scientific evidence which specifically concerns the protection of the environment or the working environment. Moreover, examination of the recitals of the draft decree(65), which could have specified the justification for the notified measures, revealed that nothing was stated with regard to the requirements of protection of the environment and/or the working environment. Recitals 4 and 7(66), in particular, emphasise that such fertiliser blends are currently imported and placed on the market without any particular precautions being taken, particularly with regard to transport and storage. This state of affairs presents a clear and immediate danger. It therefore appears that these concerns are related more to transport and storage of such fertilisers than they are to protection of the environment or the working environment. With regard to this, it should be noted that the French authorities have not demonstrated that there is a direct link between transport and storage, on the one hand, and protection of the environment or the working environment on the other. The Commission therefore considers that the concerns relating to transport and storage of fertilisers raised by France cannot be specifically regarded as protection of the environment or the working environment within the meaning of Article 95(5) of the EC Treaty.
(80) The only scientific evidence presented by France to support its request for derogation, particularly with regard to the potential danger of NK fertilisers, is excerpts from Louis Médard's 1979 book, which is a summary of work on the subject.
(81) The conclusion can therefore be drawn that the national measures notified are not justified, as France has not provided new scientific evidence relating to the protection of the environment or the working environment demonstrating the existence of a specific problem arising after the adoption of Directive 76/116/EEC, as required by Article 95(5) of the EC Treaty.
(82) As for the arguments drawn from the Toulouse catastrophe(67), which, in the view of the French authorities, justifies recourse to the precautionary principle, the Commission must point out that "recourse to the precautionary principle presupposes that potentially dangerous effects deriving from a phenomenon, product or process have been identified, and that scientific evaluation does not allow the risk to be determined with sufficient certainty"(68). The precautionary principle places an obligation on Member States to provide new data which raises serious doubts with regard to health or the environment, and which, in accordance with the common rules on the burden of proof, is serious and conclusive evidence and, without setting aside scientific uncertainty, makes it possible to justify taking precautionary measures. Moreover, it follows from the Community courts' interpretation of the precautionary principle(69) that a preventive measure may be taken only if the risk, although the reality and extent thereof have not been "fully" demonstrated by conclusive scientific evidence, appears nevertheless to be adequately backed up by the scientific data available at the time when the measure was taken. The grounds for a preventive measure cannot validly be a purely hypothetical approach to risk, based on mere hypotheses which have not yet been scientifically confirmed. The precautionary principle can therefore apply only in situations in which there is a risk, notably to human health and the environment, which, although it is not founded on mere hypotheses that have not been scientifically confirmed, has not yet been fully demonstrated.
(83) To begin with, as the French authorities themselves recognise(70), the products involved in the Toulouse explosion were straight ammonium nitrate fertilisers of high nitrogen content which did not meet the requirements of Directive 80/876/EEC or technical-grade ammonium nitrates, whose explosive properties are well known, and not NK fertilisers which complied with the requirements of Directive 76/116/EEC. It is therefore not possible to draw any causal link between the latter EC fertilisers and this accident. Lastly, the French authorities state that, up to know, no theories as to the causes of this explosion have yet been definitively ruled out, as the causes of the explosion are still unknown(71). Lastly, the French authorities admit that the theory relating to the possible role of products containing chlorine in triggering the Toulouse explosion is based on waste containing chlorine being mistakenly placed in a warehouse used to store ammonium nitrate, and not on the presence of chlorine in the form of potassium chloride in the make-up of the fertilisers(72). The Commission considers that the allegations being made are too general and lack substance. They cannot even be considered scientific. As a result, it is the Commission's opinion that, in this case, there is no justification for applying the precautionary principle.
(84) As a theoretical point, the Commission feels it must mention that if measures are considered to be required, measures based on the precautionary principle must be justified with regard to the level of protection being sought. The Commission would like to point out that the legislation on fertilisers is currently under discussion, as it is being recast(73). This proposal has taken the new market situation into account, in particular by extending the requirement for a test of resistance to detonation to compound ammonium nitrate fertilisers of high nitrogen content. Taking the above into consideration, the Commission therefore feels that only a measure making the placement of such NK fertilisers on the market subject to a requirement to submit them to a test of resistance to detonation could have put the French concerns to rest. The national measures notified, which, in addition to prohibiting the importation and placement on the market of certain NK fertilisers, also lay down a requirement to withdraw those fertilisers from the market at the expense and under the responsibility of those who have them in their possession, seem unjustified, given the potential danger posed by these fertilisers when they comply with Community legislation and meet the definition of EC fertilisers.
2.1.3. Summary
(85) Article 95(5) of the EC Treaty requires that three conditions must be met if national derogations from Community harmonisation are to be introduced: the national derogations must be founded on new scientific evidence in the given sectors, there must be a problem specific to the State making the request, and the problem must have arisen after the adoption of the harmonisation measure.
(86) In this case, after having examined the scientific aspects in light of the French request, the Commission considers that France has not demonstrated, on the basis of new scientific evidence relating to the protection of the environment or the working environment, that there is a specific problem within its territory which arose following the adoption of Directive 76/116/EEC relating to fertilisers, and which makes it necessary to introduce the notified national measures. Moreover, the Commission considers that the precautionary principle, invoked by France, cannot justify the national measures notified derogating from Directive 76/116/EEC.
(87) Consequently, the request from France for introducing national measures aimed at prohibiting the importation and placement on the market in France certain NK fertilisers of high nitrogen content and containing chlorine does not fulfil all the conditions set out in Article 95(5).
2.2. Absence of any arbitrary discrimination, any disguised restriction of trade between Member States or any obstacle to the functioning of the internal market
(88) Under Article 95(6) of the EC Treaty, the Commission is either to approve or reject the draft national provisions in question after verifying whether or not they are a means of arbitrary discrimination or a disguised restriction on trade between Member States, and whether or not they shall constitute an obstacle to the functioning of the internal market.
(89) Since the request made by France does not fulfil the basic conditions set out in Article 95(5) (see part II, section 2.1, of this Decision), the Commission is not obliged to verify whether or not the notified national provisions are a means of arbitrary discrimination or disguised restriction on trade between Member States, and whether or not they constitute an obstacle to the functioning of the internal market.
IV. CONCLUSION
(90) In light of the elements which it had available to assess the merits of the justifications put forward for the national measures notified, and in light of the considerations set out above, the Commission considers that France's request for introducing national provisions derogating from Directive 76/116/EEC with regard to the importation and placement on the market of certain NK fertilisers of high nitrogen content and containing chlorine, which meet the definition of EC fertilisers and the requirements of Directive 76/116/EEC, submitted on 19 June 2002:
- is admissible,
- does not fulfil all the conditions set out in Article 95(5) of the EC Treaty, as France did not provide new scientific evidence relating to the protection of the environment or the working environment on grounds of a problem specific to it.
(91) The Commission therefore has grounds to consider that the national provisions notified cannot be approved in accordance with Article 95(6) of the Treaty,
HAS ADOPTED THIS DECISION:
Article 1
The national provisions on limiting the importation and placement on the market of certain NK fertilisers of high nitrogen content and containing chlorine which meet the definition of EC fertilisers and the requirements of Directive 76/116/EEC notified by France pursuant to Article 95(5) of the EC Treaty are rejected.
Article 2
This Decision is addressed to the French Republic.
Done at Brussels, 18 December 2002. | [
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COMMISSION DIRECTIVE of 6 March 1991 amending Council Directive 79/409/EEC on the conservation of wild birds (91/244/EEC)
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Economic Community,
Having regard to Council Directive 79/409/EEC of 2 April 1979 on the conservation of wild birds (1), as last amended by Directive 86/122/EEC (2), and in particular Articles 6, 15, 16 and 17 thereof,
Whereas Annex I to Directive 79/409/EEC should be amended to take account of the latest information on the situation of bird species;
Whereas, in order to prevent commercial interests from exerting possible harmful pressure on exploitation levels, the marketing of the subspecies Anser albifrons flavirostris and Tetrao tetrix tetrix should be banned;
Whereas the marketing of the species and subspecies Anser albifrons albifrons, Aythya marila, Melanitta nigra, Anas clypeata, Tetrao tetrix britannicus, Pluvialis apricaria, Lymnocryptes minimus, Gallinago gallinago and Scolopax rusticola should be brought within the scope of Article 6 (3) of Directive 79/409/EEC;
Whereas the provisions of this Directive are in accordance with the opinion of the Committee for the adaptation of Directive 79/409/EEC to technical and scientific progress,
HAS ADOPTED THIS DIRECTIVE: Article 1
Annexes I and III to Directive 79/409/EEC are hereby replaced by the Annexes to this Directive. Article 2
Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive at the latest by 31 July 1992. They shall forthwith inform the Commission thereof.
When Member States adopt these provisions, these shall contain a reference to this Directive or shall be accompanied by such reference at the time of their official publication. The procedure for such reference shall be adopted by Member States. Article 3
This Directive is addressed to the Member States. Done at Brussels, 6 March 1991. | [
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Commission Decision
of 13 October 1999
declaring a concentration to be compatible with the common market and the EEA Agreement
(Case IV/M.1439 Telia/Telenor)
(notified under document number C(1999) 3314)
(Only the English text is authentic)
(Text with EEA relevance)
(2001/98/EC)
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, and in particular Article 57 thereof,
Having regard to Council Regulation (EEC) No 4064/89 of 21 December 1989 on the control of concentrations between undertakings(1), as last amended by Regulation (EC) No 1310/97 of 30 June 1997(2), and in particular Article 8(2) thereof,
Having regard to the Commission decision of 15 June 1999 to initiate proceedings in this case,
Having given the undertakings concerned the opportunity to make known their views on the objections raised by the Commission,
Having regard to the opinion of the Advisory Committee on Concentrations(3),
Whereas:
(1) On 28 April 1999 a notification was received pursuant to Article 4 of Regulation (EEC) No 4064/89 ("the Merger Regulation"), by which the Swedish and Norwegian Governments announced that they would acquire joint control, within the meaning of the ECMR of a newly created company, Newco, set up to hold the shares of Telia AB ("Telia") and Telenor AS ("Telenor").
(2) On 25 May the notifying parties submitted certain proposed undertakings, which were conditional on the Commission's adoption of a decision pursuant to Article 6(1)(b) of the Merger Regulation.
(3) After examination of the notification, the Commission concluded that the notified operation fell within the scope of the Merger Regulation and raised serious doubts as to its compatibility with the common market, because it could create or strengthen a dominant position as a result of which effective competition would be significantly impeded in the common market or in a substantial part of it and in the territory covered by the EEA Agreement. Therefore, on 15 June 1999, the Commission decided to initiate proceedings pursuant to Article 6(1)(c) of the Merger Regulation.
I. THE PARTIES
(4) Telia is the largest telecommunications operator in Sweden and is wholly owned by the Swedish State. It is also the parent undertaking of the Telia group. Telenor is the largest telecommunications operator in Norway and is wholly owned by the Norwegian State. Both companies provide within their respective countries the full range of telecommunications services as well as television services, and also provide such services elsewhere in the Nordic area and internationally.
II. THE OPERATION AND THE CONCENTRATION
(5) Under the terms of the notified operation, Newco, a new company to be incorporated under the laws of Sweden, will acquire all the shares in Telia and Telenor from the respective governments. In return, the Swedish and Norwegian Governments will be issued shares equal to 60 % and 40 % respectively of the equity share capital of Newco.
(6) The Swedish and Norwegian Governments have entered into a Shareholders' Agreement, dated 30 March 1999. Under the Agreement, each Government will have a veto over the approval of the group business plan and consolidated budget of Newco, major strategic acquisitions and disposals, appointment and authorisation of committees of the Board of Newco and the appointment of the Boards of Directors of Telia and Telenor (as subsidiaries of Newco). Each Government will therefore have the possibility of exercising decisive influence over Newco, and hence the Governments will share joint control over it. As Newco inherits the two telecoms and television businesses formerly owned by the respective States, it will perform the functions normally carried out by a telecommunications company, and therefore can be expected to perform on a lasting basis all the functions of an autonomous economic entity.
III. COMMUNITY DIMENSION
(7) The worldwide turnover of the Telia group in 1998 was just over EUR 5600 million and its Community-wide turnover of Telenor was just over EUR [...](4) million. The worldwide turnover of Telenor was just over EUR 3400 and its Community-wide turnover was in the order of EUR [ > 250](5) million. Telia achieved more than two thirds of its Community turnover in Sweden but Telenor does not achieve more than two thirds of its turnover in any Member State. Both Telia and Telenor achieve over two thirds of the EFTA-wide turnover in Norway, and the combined turnover of the undertakings concerned in the EFTA States equals 25 % or more of their total turnover in the EEA territory. The notification therefore falls to be treated as an EEA cooperation case.
IV. COMPATIBILITY WITH THE COMMON MARKET
I. TELEPHONY AND RELATED SERVICES
Introduction to telephony and telecoms services
(8) This is the first case to be considered under the Merger Regulation which involves the merger of two incumbent national operators in Europe. There have been earlier cases involving the merger, or possible merger, of European telecoms operators, but one of the two parties to the operation has always been outside Europe (for example, BT/MCI(II)(6)). There have also been arrangements notified under Regulation No 17 which fell short of a full integration of two parties' entire telecoms activities(7). However, as the present case goes a step further, it raises issues which did not need to be considered in such detail in those earlier cases, and therefore some initial review of market definitions is required.
(9) Before dealing with the overall assessment and with individual product markets in detail, it may be helpful to set out some basic explanation of how the industry operates and also to clarify certain essential principles involved.
Structure and operation of switched circuit telephone networks
(10) For most of this century, and for most countries in Europe, the telephone industry has been structured in the form of vertically integrated national monopolies, usually publicly owned. These PTOs (public telephone operators) offered their final user customers ("subscribers") basic voice services. Such basic voice services provided connection to any other subscriber within the country and, through international agreements with other PTOs, access to the international PSTN (public switched telephone network).
(11) In recent decades efforts have been made in a number of countries to liberalise national telephone markets by introducing competition. For these purposes national telephone networks have generally been considered as consisting of three distinguishable segments: local loop, which is essentially the network between subscribers and the point of interconnection(8) at their local exchanges; long distance, that is, the network of cables and switching equipment which connects the local exchanges to higher levels of exchange known as transit exchanges; and international; namely the network of cables and related switching equipment which leads traffic from the international gateway (often in a capital city or at some key node in the network), via "backhaul" cables to the international cable head or landing point, and hence out of the country and to PTOs in other countries.
(12) A subscriber for such voice telephony services gains access to the network by paying a subscription fee which generally covers the operator's cost for the provision of the infrastructure, in particular the fixed line from the local exchange to the subscriber's premises. The line itself is usually a pair of copper wires twisted in a certain characteristic fashion and referred to as a "twisted copper pair" or "twisted pair".
The physical shape of the two wires between subscriber and exchange can be thought of as a loop, consisting of one elongated piece of wire which starts on the main distribution frame and runs down to the subscriber, is connected across the handset, and returns via the return wire to the main distribution frame, where all the loops from that exchange area are connected.
(13) When a call is made, it is necessary to set up a complete voice path(9) by connecting the loop of the originating subscriber to the loop of the intended recipient. If the recipient is connected at the same local exchange as the originating subscriber, the two callers can be connected at that exchange.
(14) A call destined for a subscriber on a more remote local exchange might be sent direct to the local exchange concerned. This is unusual however, and it will normally be sent first up to one or more "transit" exchanges(10), from which the call will then be directed back down the network to the relevant local exchange and hence to the subscriber.
(15) As the call is set up, an appropriate connection must be made across each intervening bridging point or switch in order that a complete voice path from originator to recipient can be constructed. Once made, this circuit has to remain in place for the duration of the call, irrespective of how much voice traffic is actually carried during the call.
(16) An international call will be sent to a convenient international switch or "gateway", from which it will be sent on international connections (cables, satellite or radio links) either to the network operator in the country where the recipient subscriber is located, or transited through the networks of other operators if no direct network-to-network connection is available.
(17) The only reason for which monopoly PTOs needed to interconnect with each other was to exchange international traffic. The physical connection between the two networks was usually made by an international cable terminating in each of the countries concerned. The relations between operators were generally described as correspondent relations. Under such relations, the price of traffic between the two countries would be agreed at a fixed per-minute cost known as the accounting rate(11).
Different methods for new operators to access the local loop
(18) In principle new entrants could build their own networks. However, all the existing local loop networks were normally built up over substantial periods of time, and financed when the telephone companies concerned were public sector bodies. For an entrant facing an established incumbent, the high cost and long time periods involved in building out new networks means that there is a significant economic disincentive to entry in this way.
(19) Where there is a powerful incumbent, the potential entrant faces some basic challenges. The first is to persuade potential customers, who are currently subscribers of the incumbent, to switch to the new entrant as their chosen service provider. A second is that subscribers will probably remain physically linked to the incumbent, and it will be necessary for traffic to pass through some of the incumbent's network in order to get to and from the new entrant. A third is that the vast majority of outgoing calls from the new subscribers will still have to be terminated on the network of the incumbent, and the entrant has to be able to hand off these calls to the incumbent without incurring charges for the use of the incumbent's network which make his offering uncompetitive.
(20) Competition in the territory of former monopolies has generally begun by entrants attacking the incumbents on their most profitable routes, namely the international and long distance routes for outgoing calls. The simplest form of entry is resale, whereby the entrant purchases an "end to end"(12) retail service from the incumbent. The entire line continues to be owned and operated by the incumbent, but the entrant "resells" the retail services provided by the incumbent. The customer will remain connected to the incumbent for all technical and practical purposes other than for the ordering of services, billing, branding and customer care, and sales and marketing. The supplier of resale will generally receive the resold services at a wholesale price or at a discount compared to the price at which the incumbent offers them. The opportunity to make a profit depends on the reseller's ability to keep the costs of the overheads under his control (generally for sales and marketing, billing and a service centre) lower than the equivalent costs which the incumbent would have incurred.
(21) The problem for resellers is that the bulk of the costs of providing the telephony service remain under the control of the incumbent. Resellers can only re-offer services which the incumbent has itself provided over its own network. There is therefore no possibility of innovation, in terms of offering new technical solutions which go beyond those which the owner of the line is able or prepared to offer. Furthermore, the exercise is only profitable in so far as the incumbent (or the regulator) is prepared to allow the resellers to survive. If there are no regulatory obstacles to its doing so, the incumbent can easily cut its retail prices whenever it chooses in order to make the offering of resellers uncompetitive, and thus force entrants to reduce their margins to the point where their operations are no longer profitable.
(22) The next form of entry, which involves a more substantial commitment in terms of network development by the entrant, is call-by-call carrier selection. The final user remains a subscriber to the incumbent, but also becomes a subscriber to whichever other entrant operator(s) provides the competing outgoing call service. At all times the subscriber remains physically linked to the network of the incumbent, and still remains a subscriber of the incumbent. When the subscriber wishes to use the services of the competing operator, he enters a special code before dialling the desired number. The code is recognised at the local exchange as the access code of the competing operator. The call is handed off to the competing operator at the nearest interconnection point between the two networks.
(23) Another form of entry, carrier pre-selection, is essentially the same as described above, except that all outgoing calls are automatically diverted to the new operator, unless the diversion is manually overridden by the subscriber.
(24) Carrier pre-selection or call-by-call selection are normally used mainly for long distance or international calls, where the prices charged by incumbent carriers are sufficiently above cost to allow an entrant the opportunity to compete by running traffic over its own network, and charging its customers less for doing so.
(25) Under either type of carrier selection the domestic subscriber continues to pay the incumbent the subscriber fee for the fixed line. In principle there is no direct charge levied by the incumbent on its subscribers when those subscribers make a call using carrier pre-selection or call-by-call selection, even though the traffic must travel over some of the incumbent's network. Instead the chosen entrant has to pay the incumbent for the use of its networks from the subscriber up to the point of interconnection with the entrant's network. This payment is sometimes referred to as "originating interconnection", and will usually be recovered by the entrant from the subscriber as part of the entrant's call charges.
(26) The calls taken over by the entrant might have to be terminated back on the incumbent's network, on the entrant's own network, or on a third-party network. The majority of domestic calls will need to be terminated back on the incumbent's network, simply because the vast majority of subscribers in the country concerned will remain connected to the incumbent. A further payment therefore, terminating interconnection, has to be made by the entrant to the incumbent to cover this service.
(27) An important limitation to these ways of entry is that both carrier pre-selection and call-by-call selection apply only to outgoing calls. A carrier who manages to attract 1 % of the incumbent's customers may be able to persuade the customers to use it for all their outgoing calls, but all incoming calls destined for the subscribers concerned will still have to be terminated on the incumbent's network. Therefore an entrant offering carrier pre-selection or call-by-call selection cannot earn the call-terminating revenue which an operator in full control of the local loop can expect to earn.
(28) A more substantial form of entry is local loop unbundling (sometimes referred to by the acronym LLU). Although the details may vary slightly according to the way it is implemented, the new entrant will generally connect his cables directly to the subscriber's copper pair at the point where the subscriber's twisted pair has previously been connected onto the incumbent's main distribution frame. Local loop unbundling will usually require the new operator or operators to co-locate in the same local exchange building, which implies the entrant setting up its own network switch to take the traffic off from that point onto its own networks.
(29) The effect of such unbundling is as if the subscriber concerned had had his cable connections taken from one local exchange operator and placed onto the main distribution frame of another operator (the entrant). All the subscriber's relationships are with the entrant. The only respect in which the incumbent continues to have control of any of the diverted network is that it retains ultimate ownership of the twisted copper pair to the final user. The entrant must generally pay the incumbent for the lease of the copper pair from the incumbent's premises to the subscriber.
(30) In theory there is no reason why the new operator should not take over outright ownership of the copper pair. In practice however, the copper pair usually runs for a substantial portion of its length in cables which contain other twisted pairs, and which will continue to be controlled by the incumbent. It is therefore important that the use of the diverted copper pair does not create unacceptable interference with the other wires in the cable, for example by "crosstalk" or radio interference with other circuits in the incumbent's local loop cables. A cable in which several specific circuits were owned outright by someone other than the owner of the cable might give rise to difficulties in allocation of responsibilities for maintenance. For these reasons leasing arrangements are generally preferred.
(31) There are other possibilities for getting local loop access, that is fixed access to final subscribers, but which avoid the need to use the incumbent's fixed links. The most usual alternative to the incumbent's fixed links is the use of cable television connections.
(32) Cable networks were usually designed to transmit traffic in one direction only, and so have a "trunk and branch" or "cascade" structure which is not ideal for telephony. By contrast, in the traditional telephone system each subscriber has his individual local loop to the local exchange, which only ever carries his own traffic. The copper loop wires are less likely to be overloaded no matter how many subscribers are simultaneously using their phones. By contrast, with traditional cable networks there is a risk that the "trunk" connections within the system can be overloaded by return telephone traffic. However the networks can be adapted. The first step is to reserve some of the bandwidth on the cable to create an outward and a return path for telephony traffic. The system must be reconfigured so as to break it down into separately served units of say, 500 to 1000 subscribers, in order to ensure that the arterial routes are not overburdened at times of peak demand. There may be a need to create more capacity in the key trunk lines, by putting in extra cables, or replacing the copper coaxial system with fibre optics, in order to enable the system to deal with all the traffic. If so, investments are needed in the electronics required to "light up", to bring into operation, the optical fibres. Cable modems are required at each end of the line. Undeveloped cable networks are therefore not an immediate substitute for the telecom network, but can be made so with some investment.
(33) In some countries, the UK being one example, cable networks were built out not only with the usual coaxial cable for the supply of television services, but with an additional twisted copper pair with the intention that it might be used for telephony. In other countries the cable networks consist only of coaxial cable and so the technical and financial challenges involved in developing the network for telephony are greater.
(34) Other alternatives to the use of the incumbent's fixed lines involve the use of relatively new technologies, such as the conveyance of traffic over electricity cables entering the subscriber's premises. However, as this is not commercially developed, it does not provide an immediately available competitive alternative for the bulk of telephone users.
(35) There are also methods designed to avoid the use of fixed links entirely, such as radio link. This requires the use of high frequency radio signals beamed at receiving/transmitting equipment located at the subscriber's premises. The disadvantage of this system is that it uses very short wave radio signals. These require line of sight transmission, so the use of radio-loop systems might be limited to country areas rather than built-up town and city centres, or to businesses with high buildings or aerial masts on which to locate the receiving antennae. The use of such radio frequencies might generate unacceptable levels of interference with other equipment. Moreover significant investments must be made in the equipment at the subscriber's end of the line. An attempt to set up a commercial operation in the UK using such radio links has recently failed.
(36) An important distinction should be drawn between local loop services which give the entrant the subscriber's outgoing call business only, such as carrier pre-selection, and call-by-call selection, and technologies which place the new operator in a position analogous to that of the incumbent (unbundled local loop access, radio link, access by power cables and cable networks). The second group gives the operator the possibility to earn revenue from incoming as well as outgoing calls. Arguably only the second group, and of these only unbundled local loop access at least in the short term, is really capable of allowing competitors to enter on the same terms as the incumbent.
Interconnection: correspondent relationships and the accounting rate
(37) Interconnection is the means by which two separately owned networks exchange traffic between one another. The accounting rate system, which was referred to briefly, is a particular form of interconnection. It is essential for any telephone company to have sufficient interconnections to be able to send traffic to, and receive it from virtually everywhere on the PSTN, including the international PSTN.
(38) In the era of monopoly national telephone operators, calls which had to be switched between local and transit exchanges, or to international gateways, were switched entirely within the network of the national PTO. In this context "interconnection" would have had relatively little meaning. The price of the service as paid for by the subscriber, a combination of the fixed rental charge and a usage charge for individual calls based on their duration, destination and perhaps time of day, would be a bundled charge which covered all the necessary switching activities within the network.
(39) Where international operators deal with one another, the financial relationship between them was and usually still is governed by a system referred to as the accounting rate system. A price is agreed between the two national telephone operators concerned, and the originating operator (the operator whose subscriber initiated the call) pays an agreed percentage, usually 50 % of the accounting rate, to the other operator for delivering, or terminating, the call. As there is usually a two-way exchange of traffic between the two operators, the accounting rate is usually accompanied by a settlements system, in which the net flows of traffic between the two operators over a period are counted, and payments in one direction or the other made at regular intervals on the basis of the imbalance.
(40) The physical cable structure between the two PTOs would be considered as owned by each up to a notional mid point (either on their common border or on the mid point of an undersea cable). The subscriber making the call would pay his operator the full price of the call (which in theory should be related to the accounting rate but might not be), and this operator on whose network the call began would then generally pay the terminating operator an agreed proportion, usually 50 % of the accounting rate, to terminate the call on the receiving network. The fact that traffic might be roughly in balance between the two operators concerned, and that payments would be subject to a settlement regime, means that the actual amounts of money changing hands between the two operators would be relatively small compared with the overall traffic volume. It will be noted that under this system the price for a call to the telephone companies involved reflects the agreements reached between the two countries concerned, and the terminating operator gets paid the same irrespective of how far the call has to travel on his network to reach his intended subscriber.
Interconnection at local or long distance level
(41) With the advent of liberalisation, there was a need for the new competing networks who entered a domestic incumbent's territory to be interconnected with the incumbent, and of course with one another. Such interconnection is especially important to new entrants, because the vast majority of their subscribers will probably want to make calls to subscribers who are still on the incumbent's network.
(42) The model for domestic interconnection usually differs slightly from the accounting rate model used in international calls. The originating operator (that is the one on whose networks the call begins) usually pays the receiving operator a minimum set-up charge for each call, as well as a per-minute charge for the termination of traffic sent over the physical points of connection between the two networks. The per-minute usage charge may vary depending on the time of day at which the traffic is being sent, and how far it has to be sent on the receiving network from the point of interconnection.
Interconnection models
(43) The pricing structures for interconnection vary from country to country. A country may be divided into regions, and the entrant will have to decide on the specific regions in which it wishes to interconnect, and to fulfil certain minimum standards set by the incumbent. For example, it might be required to interconnect at specific points within the region as designated by the incumbent, and/or at a certain minimum number of points within the region as stipulated by the incumbent. Under this system an entrant will pay a certain charge if a call can be delivered within a region, or segment, where it is interconnected, and it might pay more if the incumbent has to take the call to another region where the entrant is not interconnected.
(44) An alternative, which may amount to much the same thing depending on the geographical layout of the PSTN, is where the entrant can choose to interconnect at various levels in the exchange hierarchy. Thus if he interconnects at a high level in the hierarchy, he may have access to all the exchanges in the country or a substantial part of it, and if he interconnects at local level, he may have access only to the local exchanges served from the exchange he has chosen.
(45) The incumbent will generally set prices based on the amount of his network which the interconnecting operator will need to use. Thus in order to reach a specific customer on the incumbent's local loop the cheapest interconnection is generally at or as close as possible to the local exchange where the relevant twisted pair is terminated. If the point of interconnection is at a transit exchange, higher up the exchange hierarchy, then the call will have to be carried over more of the incumbent's network in order to reach the local loop. The entrant can then expect to pay a higher charge than for the same call terminated at a local interconnection point. Hence individual local exchange level interconnections are more direct and cheaper, but give access to fewer overall customers. In general the fewer points of interconnection an entrant has, the more it will have to pay the incumbent for call termination. Conversely the more points of interconnection it has, the less it will have to pay the incumbent, but the more it will have to spend on building out its own network.
(46) In principle the way for an entrant to lower his interconnection costs is to make as many interconnections as possible, as far down the exchange hierarchy as possible. However this involves significant capital costs of building out networks to each and every local exchange which it might wish to reach. Furthermore, if interconnection charges are high relative to the price at which the incumbent offers services to its own subscribers, it can be difficult for an entrant to make a profit on the operation. But even if the prices of interconnection are reasonable, a possible disincentive to large investment in new networks is that new entrants are entirely dependent on the incumbent, in the absence of regulatory action, for the price at which interconnection is offered. If the price of interconnection rises so as to make the entrant's operations uneconomic, their investments in rolling out networks will be of little value. Thus entrants may be unwilling to have their costs at the mercy of the incumbent unless they are satisfied that sufficient regulatory controls are in place to keep interconnection costs low enough to make their offerings competitive, and to prevent the incumbent from abusing its position of power.
(47) For new entrants the most desirable state of affairs would be to interconnect at chosen points, whether at transit exchanges or local exchanges, selected on the basis of where it was necessary for them to send the most traffic. Thus in an area where a new entrant found itself delivering a high volume of traffic, say to a particular group of subscribers in a specified area of a city, it might want to interconnect at some selected local exchanges, or even at all of them in the area. In another area where a new entrant sends little traffic, it might want to interconnect only at the transit exchange level in order to avoid significant investment in little-used capacity. It could even choose not to interconnect at all in such regions, and to accept that this means paying the incumbent higher interconnection charges in respect of the delivery of such traffic.
(48) Incumbents sometimes insist on interconnections being made in accordance with certain criteria which make it difficult for the entrant to "cherry pick" the most desirable points of interconnection. It is common for example for an entrant operator to be required to interconnect at a minimum number of points, normally two, in each region in which he desires to interconnect. The incumbent may refuse to allow any interconnection at the local exchange level (as distinct from the more expensive interconnection via a transit exchange) unless the entrant is prepared to interconnect at a minimum number of exchanges, or perhaps even at each and every local exchange within the region. The incumbent may impose limitations on the networks to which it will connect.
(49) As to who pays the costs, there is usually a one-off cost for setting up each interconnection, and a continuing periodic payment. The incumbent may insist that the entrant pays the entire cost of setting up the physical infrastructure required to make the interconnection, even if the incumbent will be able to benefit from being able to send some traffic over the physical link. Such strategies give the incumbent a significant degree of control over entrants' costs because they determine the level of investment which the entrant has to make before it can begin operations. In addition the incumbent may carry out quality degradation strategies.
Supply of capacity or capacity-related products
(50) A national telephone operator is a significant owner of network infrastructure in the form of cables and switches. Most such operators lease out some of their unused capacity. Such leasing can be of the "wholesale" variety, whereby products are offered to other telecoms operators or large users, or it can be retail, whereby products are offered on an end-to-end basis, sometimes to suppliers of telephone services, but also to private users, such as data network operators.
(51) The alternatives for the supply of the raw cabling may include utilities such as railways and electricity companies, which have their own private telephone systems or rights of way along which networks can be rolled out more quickly. Such offerings may provide "backbone"alternatives, but may not have the coverage or "capillarity" of the incumbent's own networks. Consequently the incumbent may be better placed than any other supplier of leased capacity in terms of the reach and coverage of his physical network.
(52) The price at which leased lines and related products are offered has a relationship with interconnection prices and prices for local loop access. It was noted in the discussion on interconnection above that it was generally cheaper for an entrant to keep its traffic off the incumbent's network as far as possible, and to make the interconnection with the terminating network as near as possible to the point of delivery of the traffic. However, this assumes the entrant has the capital resources to build out his networks to each desired local exchange point. If the entrant chooses to lease lines, and is substantially dependent on the incumbent for the supply of such leased lines, then its ability to avoid hostile interconnection pricing on the part of the incumbent is further undermined by its being financially and operationally dependent on the incumbent for his leased lines. The ability of the incumbent to take such action may be lessened however, to the extent that regulation or other competitive constraints provide an effective constraint on its freedom to set prices for such offerings.
Circuit switching versus packet switching
(53) In the model of telephony described above, one of its features is that a complete end-to-end voice path must be set up between the originating subscriber and the intended recipient of the call, and must remain in place for the duration of the call, irrespective of how much or how little is said on the line by the participants to the call. Accordingly significant amounts of network resources (cables, switching equipment) have to be dedicated exclusively to individual calls.
(54) Packet switching is an alternative to traditional circuit switching, initially used to enable computers to exchange data over telephone lines, but increasingly being used as a means of carrying traditional voice telephony messages. In packet-switched data communication, the information contained in the message is broken up into separate "packets" of data. Packets are sent from the originating terminal to a computer known as a router, which examines the heading information on the packet and directs it on to another router, and so on until the packet reaches the intended addressee. Packet data systems are described as connectionless(13), in that the connection between two cable runs need only be held open for as long as it takes one packet to cross over the switch point from one cable to the next.
(55) The first experimental packet-switched networks were locally confined, often within a university, and would be described today as LANs (local area networks). However, the types of routers and switches used in packet-switched data networking can be placed at the "nodes"(14) of traditional physical telecoms cable networks. By this means data networks can make use of the underlying physical cable of telecoms networks, thus obtaining the wide reach and coverage of the relevant networks, whilst avoiding the physical switching required at the nodes in a traditional circuit switched network. The advantage is that the same physical circuitry no longer needs to be dedicated to each user on a call-by-call basis, but can be used to carry the traffic from many simultaneous data transmissions.
Packet-switched data networks in use: business data communications and the Internet
(56) A data network can be constructed using cabling, switches and routers which are entirely divorced from the PSTN, and which have no connection with it. Many LANs, e.g. those found within an office building can be considered examples of such private data networks. Larger wide area networks ("WANs"), such as those which may connect the multinational sites of a large company, might use some telecoms fibre leased from PTOs (such as private international leased lines) but in principle these too are private networks and they do not need to be connected to the PSTN.
(57) Direct connection with the PSTN might be required in the case of a combined voice and data network. An example might be the case of a company with a global network with its headquarters in country X but a regional office in country Y. If the system breaks out onto the PSTN only at the head office in country X, then an employee in the regional office in Y who wants to speak to a customer in Y will need to make a call routed through the head office in X, onto the PSTN, and back over international links to the customer in Y. Thus the call from the head office to the customer would be priced as an international call between X and Y. But if the company's voice/data network has an interconnection with the PSTN in country Y, then any traffic which has to be exchanged between the employees of the company in their regional office in country Y and the customer in country Y can be broken out directly onto the PSTN in country Y, thereby incurring lower termination costs.
(58) The normal interaction of the private data network with the incumbent will not be in the form of requests for interconnection to the PSTN as such, but in terms of a demand for network infrastructure (capacity) products. In order to construct the data network, it will be necessary to lease capacity, or buy, probably from the incumbent, virtual network transport services such as Frame Relay or ATM (asynchronous transfer mode), which can serve to some extent the function of leased capacity. Thus a company seeking to construct its own data network (or to construct such a network for others) is dependent on the prices at which such capacity products and related equipment can be obtained.
Internet
(59) The Internet is basically a series of interconnected and overlapping networks which all use the same protocol, the TCP/IP protocol, to exchange traffic. Internet networks can either interconnect horizontally in an arrangement known as peering, or vertically where one network becomes a customer of another for connectivity. The largest Internet data networks may have worldwide coverage, while smaller networks may have coverage only of a region, or of one country, or of a local area. All Internet networks are ISPs (Internet service providers) both to each other and to final users.
(60) Obtaining access to the Internet means getting access to an ISP. This can be done by "dedicated access", that is to say, a dedicated fixed line cable link between the final user and his ISP, or by "dial up" access over a normal PSTN line.
(61) In so far as an ISP has any dial-up customers, it needs connection with the PSTN in order to be able to reach customers who can only be reached via the PSTN. For these purposes, an ISP can be treated either as a business customer of the relevant telephone operator, or as another telephone operator.
(62) If the ISP is treated as a (business) customer, it will pay a line rental to the telephone company, like any other user of telephone services. Calls from Internet users, (that is, customers of the ISP) to the ISP will be treated exactly like any other switched telephone call, except for the fact that modems are placed at each end of the line (i.e. by the customer's telephone and at the ISPs modem port) to render the data stream capable of being transferred over the circuit-switched PSTN. There will be line rental payments made by the final user and by the ISP, there will be usage charges paid by the final user for his use of the PTO's network, and the final user will separately pay the ISP for the provision of Internet services.
(63) However, if the ISP is entitled under national law to be treated as another telephone operator, then the relationship will be different. In this case the ISP (which generally receives more calls than it will make) is the recipient of a stream of calls originating in the network of the PTO, and may be entitled to receive payments from the PTO for call termination services. Because the calls will in general be originated by the customer, and not by the ISP, it is normally the ISP who benefits financially from providing the incumbent with call termination services.
(64) Some "free" ISP services are financed by settlement payments made by the PTO to the ISP, thus relieving the customer of any need to pay his ISP. A PTO may be obliged by regulation to treat the ISP as a telephone operator or, if it is exposed to significant competition for ISP business, it may find itself commercially obliged to offer call termination payments. If it does not, it could risk losing its subscriber outgoing Internet call traffic to a different carrier (by means of a carrier pre-select arrangement, for example).
(65) ISPs thus need connection with the PSTN, which may be interconnection, if they are treated as a telephone operator, or as a customer, if they are not. Where there is little competition for access to the local loop, a PTO may be able to insist that all ISPs be treated as ordinary telephone subscribers. If it is not capable of doing so, the PTO may be able to lower termination payments to such ISPs to the point where the ISP is little better off than if it were a retail customer.
Higher bandwidth (broadband) services
(66) The term "bandwidth" relates to the physical characteristics of a telecommunications system and refers to the speed at which information can be transferred. In analogue systems, such as traditional circuit switched telephony, it is measured by frequency (in hertz). In digital systems it is measured in the number of binary bits per second. The higher the bandwidth, the higher the speed of the line, and the more information a telecommunications system can transfer. A conventional voice telephone circuit connected at each end to a subscriber by means of a twisted pair can be regarded as a low speed "narrow band" connection, which has only a limited capacity to transmit data. Modern applications, such as Internet, and in particular video on demand require the transmission of much more information, and hence require high speed broadband interconnections if they are to be usable by the final subscriber.
(67) There are two difficulties with the delivery of broadband services to final users. One is the bandwidth limitations of the twisted copper pair. Although many telephone operators upgraded their long distance and international capacity with fibre optic cable in order to make optimum use of packet-switched technology, the local loop represents the point of the network where traditional circuit switching represents an impediment to the use of broadband technologies. The substantial costs of replacing the local loop infrastructure represent a disincentive, even for the incumbent, to upgrading the links, and thus the challenge is to find ways of delivering the service over existing facilities.
(68) Broadband services can be offered over the existing copper line if it is hooked up to "enabling" technologies such as one of the "xDSL" (digital subscriber line)(15) technologies. The xDSL technologies are capable of effectively converting a copper pair into a high speed digital line, and so overcome the technical limitations of the traditional copper local loop. The technology must normally be fitted at the local exchanges, on both the incumbent's and the customer's side of the main distribution frame.
(69) Competing operators who want to offer broadband services via xDSL technologies to customers who are still connected to the incumbent face three main difficulties. First, they must wait for the applicant to install the technology, and hence their technical offerings are limited by the equipment which the incumbent installs. Second, they must interconnect somewhere further up the telephone line, further away from the main distribution frame, and thus expect to pay higher interconnection charges for the use of more of the incumbent's network. And finally such entrants are vulnerable to the incumbent's policy on the pricing and/or quality of his interconnection. If the incumbent increases his prices for interconnection or degrades it, a competitor's xDSL offering may become uncompetitive.
Interconnection between fixed and mobile networks
(70) The principles described above apply equally to interconnection with mobile networks. However, it is customary for interconnection charges to be somewhat higher for mobile networks. This is said to be justified on the basis that the mobile operator has to incur more work in establishing where his customer is, so that calls to that customer can be directed to the appropriate point on his network. In their Reply to the Statement of Objections ("the Reply") the parties argued that charges were higher on the basis of the higher costs for mobile compared to fixed networks, and the fact that mobile infrastructure is still in the "build-up" phase.
(71) "Roaming" refers to the possibility of a mobile phone user taking his phone out of the area of the company to whom he subscribes for mobile phone services, and using it in the catchment area of another mobile phone company. In order for him to do this, there must be a roaming agreement between the two companies. In general, the main features of roaming agreements are as follows: the subscriber of network X arriving in the territory of operator Y will be treated as a customer of network Y. Operator Y will bill operator X for any calls made by the customer when in Y's territory. The bill will reflect the rate charged by operator Y to its own customers, plus a surcharge to reflect that fact that the caller has no subscription with operator Y. Operator X will in turn bill his customer for the calls, with a surcharge based on the additional administrative costs involved.
(72) Roaming occurs both on a national basis, when a subscriber of a mobile phone company goes into the area of another mobile operator, and on an international basis, when a mobile phone user uses his phone in another country, and his call is handled by a service provider in that country.
A. RELEVANT PRODUCT MARKETS
(73) In their notification the parties identified seven relevant product markets, covering their activities in telephony and related services. These included fixed-switch telephony services; business data communications; Internet access (including retail and dial-up); PABX distribution; local telephone directories and local telephone systems; business-to-business telephone directories and mobile telephony.
Markets within the fixed-switch telephony segment
(74) The parties' proposed relevant product market for fixed-switch telephony covered local calls, long-distance calls (meaning those made within a single country), international calls, and calls to mobiles. The Commission considers that, from either a demand or supply point of view, the range of activities falling within this definition comprises offerings which cannot be regarded as economic substitutes for one another. An assessment is accordingly required on the basis of narrower segmentations.
Narrower segmentations
(75) Many respondents to the Commission's market investigations agreed that definitions more in line with previous cases should be used, under which basic telephony services would be split into separate segments. One such segmentation was into local loop, long distance, and international. However, local loop access services are relevant both to subscribers and to other operators seeking to interconnect. A distinction can also be usefully drawn between the supporting infrastructure, and the actual services which are offered.
Provision of local loop infrastructure
(76) Before he or she can access any higher level telephone services, a subscriber has to be physically connected to the PSTN, which is usually done by allocating him or her a twisted copper pair to his nearest local exchange. There is accordingly a demand on the part of subscribers and telecom entrants for connection to the local loop.
Provision of long distance and international infrastructure
(77) There has to be a means of connecting local exchanges together within a country, and to bring traffic to and take it from the international gateways or switches. These services require a physical network of cables and a means of switching between them. The main suppliers of such network infrastructure in the past were the telephone companies themselves, but new options have emerged in recent years, notably utilities such as gas, electricity and rail companies who are prepared to lease out some of the capacity on their private networks.
(78) In terms of demand, the provision of long distance transport is relevant not only for entrant PTOs, but also for companies running private networks, such as Internet service providers, suppliers of network services for business data communications, and companies seeking to "self provide" by constructing their own data networks. Each of these types of player needs access to capacity to complete networks in a given service area, and possibly also interconnection with the incumbent in order to be able to exchange traffic originating or terminating in the country concerned.
(79) In terms of such network infrastructure, a distinction has been drawn in the past between "wholesale" offerings, namely those which are offered on an operator-to-operator basis only, and "retail" offerings, which are offered to end-users (normally businesses) and usually consist of private lines.
(80) In principle the buyer of network infrastructure may be indifferent as to whether the product is obtained from a telephone operator or from any other competing supplier of network infrastructure. There may be advantages in buying a bundled product from a telephone company, that is one in which interconnection is taken for granted, but if the price rises too high by comparison with the offerings of competing suppliers, the user may be ready to buy "dark fibre" (unused and unconnected cable) and to light it himself and to seek interconnection arrangements for it. From the point of view of the person buying access to such infrastructure therefore, the offerings of suppliers such as utility companies may represent a substitute for offerings traditionally provided by PTOs.
(81) It is possible that, where the lessor is a dominant telephone company, it may discriminate between customers whom it recognises as other telephone companies and to whom it will offer not only fibre but also interconnection, and other customers (e.g. business customers attempting to set up data networks or entrant operators), and to whom it will not offer interconnection. A dominant PTO could also refuse to interconnect with (or offer a lower quality interconnection in respect of) fibre leased from a competing (non-PTO) supplier. To that extent a dominant telephony monopoly may be able to limit the attractiveness of competing fibre offerings, simply by refusing or making it more difficult for entrant networks to interconnect if they use fibre obtained from suppliers other than the incumbent.
(82) Thus from the point of view of telephone companies seeking infrastructure, there may be one market covering not only the offerings of other telephone companies, but also those of alternative providers. However, from the point of view of private buyers, such as private data network providers, the market for the supply of network infrastructure may be more limited if they need interconnection with the incumbent, as they may be forced to rent from the incumbent telephone company.
(83) Notwithstanding the above, for the purposes of the present assessment however, separate markets for network infrastructure, both long distance and international, have been considered to exist, and such markets are considered to cover all supplies of network infrastructure, whether supplied by telephone companies or not.
Subscriber access to telephone services: (local, long distance and international)
(84) Once the physical connection to the network is in place, services can be run over the lines. Basic telephony consists of incoming and outgoing calls. Incoming and outgoing calls can be classified according to whether they are "local calls", i.e. they originate and terminate on the same local exchange network; or long distance, i.e. they have to be sent to or are received from somewhere else in the country, or international, i.e. they have to be sent to or received from a foreign country(16).
(85) Irrespective of whatever any additional segmentations might be applied, a question arises as to whether separate markets should be defined for incoming and outgoing calls. This is particularly relevant to the question of the treatment of services such as carrier pre-selection and call-by-call selection, which apply only to outgoing calls.
(86) Subscriber access to telephone services is generally offered by the incumbent on the basis of a bundled product for both call termination and call origination. The price of the service to a final user who receives but never originates calls consists only of the line rental. The price to a final user who originates but never receives calls consists of all the variable usage charges as well as the line rental. The calculation of pricing between the two services is more difficult where a fixed line is used both to receive and to make calls. As part of the fixed line rental has to be considered as attributable to the cost of outgoing calls, and part as a charge for the incoming calls(17). The proportion of the fixed costs to be attributed to outgoing calls will vary according to the relationship between usage for incoming and usage for outgoing calls. Therefore it is difficult to unbundle the individual price elements of the service for a final user, suggesting that incoming and outgoing calls should be treated together.
(87) Despite the foregoing, it might none the less be argued that call origination and call termination constitute different service markets, because in theory a subscriber facing local loop competition could rent one line only for incoming calls, and a separate line only for outgoing calls, thus allowing him to buy different services from two different providers. But he would then incur two charges for fixed line rentals instead of one, and the exercise is unlikely to be cheaper than having the one line for both incoming and outgoing calls. Accordingly, the relevant markets are taken for the purposes of the assessment as comprising incoming and outgoing calls.
(a) Local calls
(88) Conventionally the service markets for basic telephony are split into local, long distance and international. In demand terms it is the subscriber who decides whether he or she wants to make a local, a long distance or an international call. However, if the various layers of the telephone hierarchy are separated, then the supplier of local loop services may not necessarily be able to offer long distance or international calls directly to their subscribers, and may have to refer the call to another operator. Thus the layers can be treated as separate markets.
(b) Long distance calls
(89) Where a PTO is a vertically integrated operator, the transition between local loop and long distance is merely a switching between different exchange levels. But where the different layers are segregated, a long distance operator will need to interconnect with the local loop network on which the call originated in order to accept the call, and carry the traffic to somewhere else in the country or region. From there it may be sent back onto the incumbent's local loop network closer to the point of delivery, or handed off to some other operator. Demand for such long distance services would also arise where local loop operators need to send traffic to, or receive traffic from, an international "gateway" or access point leading to the international public switched network, and equally when traffic has to be routed to a mobile network.
(90) The product or service which is offered can comprise a combination of elements. It comprises an offering by the long distance network operator of transport over its fibres, and can include interconnection with the receiving network(s) at each end. The transport element could be provided over fibre which is owned by the long distance operator, or fibre which is leased by him from another telephone operator. There are also other capacity products which can be used for the transport of long distance traffic. For example, it could be done by the purchase of wholesale switched minutes from the incumbent, or even by running communications over virtual networks, such as data networks provided on a retail basis by another operator.
(91) Competition for the carriage of long distance calls (and also international calls) is generally introduced by means of resale, carrier pre-selection and carrier call-by-call selection. Such services generally apply only to higher margin areas such as long distance or international calls, and are not used for purely local calls. They allow the customers to access another operator or reseller who will handle the call for them.
(c) International calls
(92) From within any given country there will be a demand from subscribers for the carriage of telephone traffic to other countries. This is the area in which resellers and call-by-call or pre-select carriers are most likely to be active.
(d) Calls from fixed to mobile
(93) Calls to mobile telephones can be considered, for the purposes of this assessment, as similar to long distance calls, in so far as they require access to the incumbent's network for call origination, and have not been dealt with separately below.
Mobile telephony
(94) The parties proposed mobile telephony, which means the operation of mobile communications networks, as a separate relevant product market. Most third parties who responded to the Commission's investigations seemed to support a market definition at this level, and there was little or no suggestion from third parties as to the need for further sub-division of the market (for example into analogue and digital). As to the question of "convergence", namely the tendency for mobile telephones to become substitutable for fixed-line telephony, many respondents made the point that mobile telephony services cannot be considered yet as substitutable for fixed-line telephony as, inter alia, fixed lines can be used for purposes, such as Internet access, for which mobile phone services do not provide the same functionality. Mobile phone services are therefore taken as a separate product market in their own right.
Operator access to networks (local, long distance, and international)
(95) In the same way as subscribers need access to networks in order to be able to make calls, operators need access in order to terminate calls on other networks, or to receive calls for termination. There is thus a parallel, at the operator level, with the discussion above about outgoing and incoming calls.
(a) Operator access to local loop networks
(96) Just as a subscriber needs access to the local loop in order to make outgoing and to receive incoming calls, other operators also need to be able to interconnect with local loop networks. Thus a demand for such access services exists, and some form of contractual consideration, either payment or a return of reciprocal services, must normally be given.
(97) Interconnection will normally be arranged in the form of an agreement often referred to as terminating interconnection. Under such an arrangement, the operator with the traffic to hand off will pay the terminating operator for his services in delivering the call. Thus the total cost can include a set-up charge for origination for each call, and a per-minute charge which may vary depending on how much of the incumbent's network the call has had to travel through before it reaches the local loop subscriber.
(98) The Commission therefore considers that, where deregulation has permitted the entry of competing operators, a market exists for operator access to the local loop network.
(b) Operator access to long distance or international networks
(99) In practice most of the incumbent telephone companies in Europe are vertically integrated, and have sufficient capacity not to need (apart from international calls) to hand off their traffic to local, long distance or international operators. However, new entrants without their own facilities may want to make use of the services provided either by the incumbent or by another telephone company with the ability to deliver long distance or international traffic.
(100) Because the physical networks in most countries were constructed in the era of national monopoly telephone operators, there are usually a limited number of international switches which connect, via backhaul, to "gateways" - international cable landing points or cable heads. All outgoing internationally bound traffic handled under the correspondent regime (that is excluding self-corresponded traffic and traffic over private circuits) must therefore be brought to the international switches. All incoming traffic to a country arrives at the international switches for termination within the country concerned.
Business data communications
(101) Business data communications are services involving the transfer of often large quantities of data, securely and quickly, nationally and internationally. Business data communications services connect a company's local area network (LAN) in one location with its other LANs located elsewhere; these services can also link third parties to a company's network. The customers of these types of services are companies with substantial communications requirements.
(102) "Business data" services form separate product markets from those related to traditional switched voice telephony. From a technical point of view, data networks are based on the physical configuration of the underlying telecom cable network, but use different types of switches and routers at the points of interconnection and access ("the nodes"). Business data communications often use packet switching or similar technology, such as Frame Relay or ATM. Business data networks are commonly described as "virtual" networks. When a connection is set up a "virtual circuit" is created, a data stream is broken into packets which are then placed on lines which are shared by different streams. This technology provides the advantage that it is not necessary to reserve network resources for a given connection and that switching time is minimised.
(103) Providers of business data communications services may either build their own network, combining their own infrastructure with leased lines, or buy network transport services (such as Frame Relay services) from the telephone operator and in general from network infrastructure providers. In any event business data communications providers need to have access to the local loop. To this end they may use leased lines, optical fibre, PSTN and ISDN(18). Long distance connectivity may also be obtained from providers of network infrastructure by using leased lines and/or network transport services.
(104) The provider of such data communications services assembles the offer from these various elements, and presents it to the customer as one "seamless" package. For many business customers the attraction of buying such a product is that it avoids the need to deal with multiple national level telephone companies in each of the countries required to be covered by their data networks.
ISP services
(105) ISPs offer their customers connectivity to the Internet at large, in other words, access to any point on the Internet to which a customer may want. A demand exists, therefore, for the supply of Internet access services. In the assessment below, figures have been provided to show market shares for dial up and dedicated access combined and separately. However, as competition concerns would arise whether they are defined separately or together it has been unnecessary to decide between the two.
Wholesale ISP services
(106) Wholesale ISP services comprise the resale of transit in Internet terms, which involves an obligation by offering ISP to provide connectivity to the whole of the Internet to its customer ISP. This market is global. The information supplied by the parties shows that neither of the merging parties would have fitted the definition of a top-level network as applied in Commission Decision 1999/287/EC (WorldCom/MCI)(19) and they are in part resellers of transit obtained from such networks. Moreover, as will be described below in the Internet section of the competitive assessment, Telenor's business as an Internet transit provider is marginal; Telia is stronger at a European level, but still small on a global basis. Therefore, this market does not need to be considered further as the notified operation does not raise any competitive concerns in the field of wholesale ISP services.
Internet advertising
(107) In the Scandinavia Online decision(20), concerning the creation of the joint venture Scandinavia Online (SOL) between Telia, Telenor and the Norwegian media group Schibsted, the Commission identified, amongst others, a market for advertising over the Internet. On this market providers of Internet content compete with each other for advertising revenues. In their reply to the Statement of Objections, the parties disagreed that there was a separate market for Internet advertising, claiming that it was extremely rare for companies to use the Internet as an exclusive market channel, and that this activity should be regarded as part of a more general market for advertising via newspapers, direct mail, television and radio, etc. The parties have, however, provided no evidence that those other marketing channels exert a competitive constraint on the behaviour of suppliers of Internet advertising space. The fact that most advertisers market their products through several advertising channels does not demonstrate that these different channels are demand substitutes. It simply shows that advertisers pursue a diversified marketing campaign aimed at as many people as possible.
Sale of advertising space in local telephone directories
(108) In Sweden and Norway, like in many other countries, local telephone directories are produced once a year and delivered to households and businesses free of charge. Publishers earn revenues from selling advertising space to a range of advertisers, mainly large and medium-sized businesses. Both Telia and Telenor publish and supply local directories and sell advertising space in their directories. In Sweden Telia publishes under the brand rame DinDel and Telenor operates through its subsidiary Lokaldelen Sverige AB ("Lokaldelen"). Telia has no operations in Norway.
(109) The parties maintain that advertising in local directories is not a market as such, but is a segment of the wider market for advertising in other media (e.g. local free newspapers and radio). However, the information gathered in the course of the Commission's investigation suggests that there are a number of features distinguishing telephone directories from other advertising media. First, telephone directories are published once a year. This reduces their advertising strength and makes them a static advertising medium as the information which is made known to the public through telephone directories cannot be changed, integrated or updated. The once-a-year issue has a bearing on the price for advertising space in telephone directories compared with other printed media. Advertising in telephone directories tends to be less expensive, if the longer lifespan of the directory is taken into consideration, than advertising in daily newspapers or monthly magazines. For these reasons, customers would not easily switch between the advertising media because of a small, but not negligible price increase. In their reply to the Statement of Objections, the parties claimed that the "annuality" of business-to-business directories, i.e. the fact that subscriptions were taken out for longer intervals at a time, typically 12 months, was not a reason to distinguish them from shorter-cycle advertising media. The parties said there were other types of advertising which were let on a full-year basis, such as hoardings at football or ice hockey stadiums, or magazines which only appeared two to six times a year. On this basis they suggest that the market in which directories compete for advertising revenues at least include other forms of longer term advertising opportunities. However, the parties have provided no evidence that these other advertising means may restrain the competitive behaviour of the sellers of advertising in local directories. For example, the parties have not shown a correlation between the local directories advertising fees and the other advertising fees, nor any other evidence indicating that these different products are demand substitutes. Therefore, the sale of advertising space in local telephone directories can be taken as a distinct relevant product market.
Sale of advertising space in business-to-business directories
(110) Business-to-business directories are different from the ordinary local directories as they are mainly used by businesses searching for suppliers of products and services. They are generally distributed free of charge as publishers earn revenue through the sale of advertising space. Both parties are publishers and suppliers of business-to-business directories. In Sweden Telia publishes under the Emfas brand and Telenor publishes through its Swedish subsidiary Telenor Företagsinfo AB under Stortele, Sveriges Handelskalender and ISO-guiden brands. Telia has no operations in Norway.
(111) The parties claim that the publishers of this type of directory compete for advertising revenue on the general market for advertising. However, for the same reasons given for local directories, the Commission considers that advertising in business-to-business directories a distinct advertising market. Advertising in business-to-business directories constitutes also a separate market from advertising in ordinary local directories. Business-to-business directories are not generally available to the public, but are targeted at specific users, namely the business community. Advertising in business-to-business directories seems to be less expensive than advertising in ordinary telephone directories. In their reply to the Statement of Objections, the parties claimed that, as for local telephone directories, the "annuality" of business-to-business directories is not a reason to distinguish them from shorter-cycle advertising media. The same reasoning set out above in relation to local telephone directories can be used to dismiss the parties' arguments on business-to-business directories market definition. In addition, it is self-evident that because of the specificity of business-to-business directories (these directories are addressed only the business community) other forms of advertising such as advertising on buses and trams, which are directed to the general public, cannot be considered as demand substitutes.
(112) On the basis of the foregoing, there is a relevant product market for the sale of advertising spaces in business-to-business directories.
(113) It is to be pointed out that the parties distribute, besides the printed version, CD-ROM and Internet versions of the business-to-business directories. The parties also earn income from CD-ROM and Internet version advertising, accounting for less than 0 % to 10 %(21) of the business-to-business directories income. The parties consider that the CD-ROM and Internet versions belong to the same market as the printed version. The information collected in the course of the Commission's enquiry tends to confirm this view. However, it is to be borne in mind that the Internet version has not got the same layout as the printed and CD-ROM versions. In the Internet version the names and addresses of the companies are set out in an objective and even way. The only source of advertising revenues are banner advertisements, which surround the relevant site, and sponsorship. These advertisements and sponsorship are separate from the text of the directory, are not necessarily related to the relevant business information displayed in the directory, and are sold separately to the companies wanting to advertise on that site. On the contrary, in the printed or CD-ROM version of the directory the information on the relevant companies may be displayed in a biased way or in advertising spaces of a different size, which are not separate from the text of the directory. The advertisers pay for having the name of their company displayed in a more noticeable way or for advertising spaces. In any event it is not necessary to take a position on this issue since the operation raises competition concerns irrespective of whether or not Internet advertising is included in the relevant product market.
PABX
(114) Another type of infrastructure product, albeit used within an organisation rather than as part of the public network, is the PABX. The parties are both distributors of PABXs. These are essentially switches with the capacity to handle a number of telephone lines simultaneously, and are used by businesses and institutions as switchboards for their internal voice telephone systems. Switches vary according to the number of lines they handle. A PABX able to handle less than 100 lines tends to be considered small, and models with capacity of over 100 lines are considered large.
(115) The parties consider that large and small PABXs belong to the same product market, as their function is the same regardless of the size and customers seek solutions which may include both large and small PABXs. Customers do not generally want to deal with different suppliers for large and small PABXs. The information gathered by the Commission in the course of its investigation tends to confirm the parties' view. However, as shown below, for the purpose of the assessment of the present case it is not necessary to conclude whether or not small and large PABXs belong to the same relevant product market.
(116) Distributors of PABX systems tend to focus on the aftermarket, i.e. supplying upgrades to customers already having PABX systems (whether large or small), and service contracts with customers following installation to provide ongoing maintenance and support. After-sale services account for an important part of the PABX business. Most customers expect to take all these services from the company which sold and installed the original equipment. However, as shown below, for the purpose of the assessment of the present case it is not necessary to decide whether or not after sale services are part of the same product market as PABX distribution.
B. RELEVANT GEOGRAPHIC MARKETS
Markets national or wider than national
(117) The parties argue that all the relevant telecoms markets affected by this concentration are national. It could be argued however that even if the markets are currently national, the merger(22) would expand markets, such as for fixed telephony, and possibly also for some other services, and create a two-country market consisting of Norway and Sweden. However, even though this may be the outcome of the merger, it is not its automatic consequence, and the assessment has proceeded on the basis of essentially national markets for fixed and mobile telephony.
(118) Notwithstanding the foregoing, it is difficult to generalise across the range of possibly affected telecoms markets, and the position of each must be considered separately.
Provision of local loop, long distance and international infrastructure
(119) These three markets are considered to be national in scope. If the local loop under the control of one operator were enlarged to cover an area that was wider than national, and if the network is reconfigured to reflect the fact that it is now all under the control of the same operator, then the geographic reach of the market could be wider than national. However, it is not necessary to determine this issue, as competition concerns arise even if, as suggested by the parties, the market is defined as national.
(120) As regards long distance and international infrastructure, similar principles may be applied to determine the geographic dimension of the market definition. Long distance telecoms transport in any given country has been provided historically by the incumbent monopoly who, for similar reasons as those applying to its local loop offering, offered them within a specifically defined national territory.
Subscriber access to telephone services (local, long distance and international)
(121) The markets for subscriber access to telephone services are, from the subscriber's point of view, also generally considered to be national. Service offerings have tended in the past to be nationally limited, because the telephone operators supplying them have not been able to provide services across national borders.
Operator access to networks (local loop, long distance and international)
(122) In the same way as subscriber access services must be considered a national market, the same is true for operator access to the local loop. In the historical situation of incumbent monopoly telephone operators, the question of access to local loop networks was not usually relevant to an outside operator seeking to terminate calls in the country concerned. Responsibility for terminating the call would have been handed off to the receiving telephone operator at a notional mid-point on the cable between the two countries. From there on the call would be handled on the incumbent's vertically integrated network, with call termination on the local loop as the last stage in that process.
(123) International calls, in the sense of access to international call services, can be looked at as a separate segment of business in their own right. In appropriate cases however it may be necessary also to examine narrower relevant markets on the basis of specific "country pair" relationships, which means the routes over which traffic can be exchanged between two given countries. The assessment below has considered the position in terms of a market for access to international services, and also the impact of the merger on specific country pairs such as (Norway to Sweden) and Norway or Sweden to Denmark and Finland.
Mobile telephony
(124) The parties considered that the markets were national, for a variety of reasons, including in particular: that different licensing conditions were imposed on operators in different Member States; that frequency availability limited the number of operators in countries to between two and four, so an operator in one country could not necessarily expect to get a licence in all neighbouring countries; and the conditions in most licences obliging operators to build infrastructure in the territory concerned. Another important factor is roaming charges imposed on calls made while outside the home territory of the service provider, which rarely make it economic for customers in one country to obtain their mobile services on a permanent basis from a supplier operating in a different national market, largely because they would have to pay all domestic calls in their country of residence as international calls.
Business data communications
(125) The parties asserted that the relevant markets for business data communications were national, and provided figures on that basis. In many previous such cases, the market for business data packages was taken to be wider than national, possibly European or even worldwide. Indeed, one of the incentives for businesses to buy such services was the desire to avoid having to deal with a multiplicity of national telephone operators, as would be the case if they had attempted to set up their own trans-border networks on their own account. However, on the basis of the parties' own assertion that the markets for such services are national, the assessment has been carried out accordingly.
ISP services and advertising
(126) It is a common view that the geographical market for ISP services is essentially national, based on the need for a local loop service or the installation of a fixed line in order to connect physically the subscribers with their consumers. This limits the extent to which existing access markets could be wider than national.
(127) As regards Internet advertising, the Commission considered in the SOL decision (Case IV/JV.1, referred to in recital 107) that such a market should be considered at least national in scope, possibly on a linguistic basis. A competitor has suggested that, given the considerable linguistic and cultural similarities between Sweden and Norway the merged entity could provide the same Internet content in Sweden and Norway and thus compete for advertising revenues in both countries. Translation, which given the great similarities between the two languages should be rapid and inexpensive, would not always be required as Swedes can normally read Norwegian and vice versa. Therefore, as a result of the merger the relevant geographic market could be wider than national. In their Reply the parties argued that the same Internet content could not be provided in both Sweden and Norway as, notwithstanding the proximity of the States and the similarity of the languages, there are cultural and linguistic differences. They claimed these differences were significant and that there was no evidence of advertisers procuring advertising space on a combined Sweden and Norway basis. However, it is unnecessary to determine this point as competition concerns arise even if the market is defined at its narrowest extent, namely national.
Directories, local and business-to-business
(128) The parties consider that the relevant geographic market for the sale of advertising spaces in both local and business-to-business directories is national. Both their sales and distribution systems are organised at a national level. They also mention language differences as a barrier to entry into the sale of advertisements' market. Third parties seem generally to agree on a national definition of the relevant geographic market. Therefore for the purpose of this assessment, the relevant geographic market will be considered as national.
PABX
(129) The parties consider the market to be national in scope, inter alia, as it is necessary to have a local sales force, service and marketing staff with the relevant language skills and local contacts. The parties also pointed to the fact that some of their competitors were substantially active in one country but not in the other. The Commission's findings, following its enquiry, do not contradict the parties' position as regards the geographic market for PABX.
C. COMPETITIVE ASSESSMENT
(130) Before dealing with specific markets, some broader consideration must be given to the overall effects of the merger. The merger would bring together two national operators who, prior to the merger, provided the full range of telephony services and who have very strong positions in the markets least exposed to competition (fixed-switched telephony markets), but also relatively strong positions even in those markets where competition has made greater inroads, such as Internet and business data communications. In particular, they have an extremely strong position, amounting to dominance, over the local loop infrastructure. These operators also have reasonable access to the Danish and Finnish infrastructure because of the more liberalised local loop access provisions existing in these countries. Moreover, they constitute the main source of competition for each other. The merger would raise significant competition concerns because of (a) the elimination of actual and potential competition as between the parties; and (b) the increased ability and incentive of the new entity to eliminate actual and potential competition from third parties. As a result of the enlarged footprint which the combined entity would have in the Nordic region it would have the ability to carry out commercial practices which others would not be able to carry out, such as the ability to bundle product offerings encompassing the whole Nordic region.
The regulatory position
(131) An important element of this broader picture is the difference between the regulatory regimes in Sweden and Norway on the one hand, and Denmark and Finland on the other. The most important differences concern methods of price regulation, and access to end-users (by way of local loop unbundling as well as other means such as, for example resale and carrier selection). On price regulation, control on interconnection charges in both Norway and Sweden tends to be ex post rather than ex ante. This implies that the incumbents may apply excessive interconnection rates and implement other anticompetitive practices immediately without prior regulatory approval. In Norway and Sweden, the incumbents are not required to provide the same level of access to end-users to their competitors as in Denmark (where the regulatory regime provides for competitive end-user access, including the obligation to provide unbundled local loops; the obligation to provide wholesale telecommunications services for competitors to resell; co-location; carrier selection and national roaming), and in Finland (where the regulatory system provides for competitive end-user access, including the obligation to provide unbundled local loops; the obligation to provide wholesale telecommunications services for competitors to resell and carrier selection).
(132) In their Reply, the parties have stressed that effective mediation concerning the interconnection conditions imposed by Telia is possible. However, in the course of the investigation competitors have pointed out that the resolution of a disputed condition can be very time-consuming, and might take up to two years. Mediation is also required in Norway as the preliminary step to any regulatory action to resolve disputes.
(133) At the oral hearing the parties contended that the regulatory systems in Sweden and Norway acted as the most important constraint on the parties' behaviour. For example, they argued that interconnection tariffs in Sweden are regulated and cost-oriented. However, it appeared on examination that the obligation on cost orientation is limited to voice services only. And although Telia is obliged to make available a reference interconnection offer, which is published on the Telia homepage, it is not subject to any formal approval by the National Regulatory Authority (NRA) before it is published. Thus there is no ex ante control, nor is there any de jure obligation on the NRA to give such approval. Rather the reference interconnection offer is used as a basis for negotiations between the parties. In effect therefore all interconnection tariffs other than for voice services are set after negotiations between the parties. In Norway, Telenor's obligation to offer cost-oriented interconnection comprises access to PTN, public telephony services and transmission capacity. However, such offers are not subject to ex ante control since there is no legal requirement for their formal approval, nor does the regulatory authority give such approval in practice.
(134) According to the parties the Commission overstates the differences between the regulatory regimes in the Nordic area. The parties maintain that, despite the fact that local loop unbundling legislation exists in Denmark and Finland but not currently in Norway and Sweden, the regulatory regimes in the Nordic area are essentially similar.
(135) The parties do not deny that, unlike Denmark/Finland, there is no mandatory local loop unbundling in Sweden/Norway. This is a material difference since the unbundling of the incumbent's local loop allows new entrants to enter the market at a lower cost. It is worth clarifying that in Sweden and Norway, in the absence of local loop unbundling, in order to have access to end-users, entrants may either build their own infrastructure or resort to switched access (which includes call-by-call selection, carrier pre-selection, and interconnection) or dedicated access (leased lines and permanent virtual circuit). These forms of access are not equivalent to local loop unbundling as they bundle the use of the incumbent's switching or transport infrastructure with the use of local loop. This results in an additional per call margin to be paid to the incumbent. In contrast, with local loop unbundling competitors can access the user by paying only a fixed monthly charge for the lease of the loop. Moreover, the forms of access available in Sweden/Norway, unlike local loop unbundling, would not allow the provision of services such as xDSL, IP, ATM and digital video, or in any case rely on technology controlled and priced by the incumbent.
(136) With respect to the cost base used for the purposes of calculating interconnection prices, the parties say that the use of historic costs in Norway and Sweden is in compliance with Community law and, in particular, with Directive 97/33/EC of the European Parliament and of the Council of 30 June 1997 on interconnection in telecommunications with regard to ensuring universal service and interoperability through application of the principles of open network provision (ONP) (the "Interconnection Directive")(23), as amended by Directive 98/61/EC(24). Two points have to be made in this connection. First the fact that interconnection is cost-oriented would not remove the parties' ability to eliminate actual and potential competition from third parties. Interconnection enables incumbents to force new entrants to continue to rely on their services and is therefore the source of constant revenue for incumbents. Even if interconnection charges are calculated in accordance with Community law, the parties could still degrade the technical quality of the interconnection offered to third parties. As a result, the mere fact that interconnection is available does not remove the advantages which the parties gain from controlling the local loop. Second, as regards the chosen cost base, it can be said that in an increasingly competitive environment telecom companies struggle to reduce their cost base by, for example, replacing old high cost equipment with cheaper more efficient equipment. In the face of this, historical costs should be higher that current operating or incremental costs and would thus enable incumbents to earn higher interconnection margins.
(137) The Commission also observes that the question at issue is not the adequacy of the regulatory system(s) in constraining the merged entity's future behaviour, but rather whether the merger between Telia and Telenor would create or strengthen a dominant position. The regulatory systems in Sweden and Norway are designed to control the behaviour of the incumbent telecommunications companies and to protect consumers. Even on the assumption that these regulatory systems are effective, they cannot be expected to prevent the creation and/or strengthening of a dominant position that the combined entity will enjoy as a result of the merger. Telecommunications regulation is a complex task, which requires careful consideration by the regulator and extensive consultation of the industry. Regulation cannot be expected to address the structural competition problems raised by the merger. Indeed, if, as was confirmed by the Commission's market investigation, the merger between Telia and Telenor were to create or strengthen a dominant position, merger control and not ex post regulation is the only adequate tool to prevent these effects.
Elimination of actual competition between the parties
(138) It was noted that Telia, through Telia Norge(25), was one of the most active entrants in Norway and that Telenor, through Telenordia(26), was one of the more active entrants in Sweden. This entry could be observed not just in specific segments, but across a range of telephony activities, from local to long distance and international activities, as well as in business data communications.
(139) The merger would remove Telia Norge as a competitor from a Norwegian market. Indeed, Telia Norge would become a subsidiary of the merged entity. Telenordia would become an entity jointly controlled by the merged entity. As will be explained in detail, the removal of one of the most active entrants in each country would strengthen each party's dominant position on a number of markets.
Divestment of overlapping interests would not be an adequate remedy
(140) In the phase I investigation of the case, the parties had offered to divest their overlapping activities in order to remove any doubts which they considered might arise.
(141) Such divestments might help strengthen one of the other competitors on the market, or they might allow the arrival of another new entrant. But, in the opinion of many respondents, the concerns about this concentration, and in particular those relating specifically to telephony, could not be wholly removed by the divestment of their present overlapping activities. Telia Norge derives advantages from its association with Telia, such as: branding; technical/financial support; the relative proximity of its relevant supporting networks, and its bargaining position as the subsidiary of an incumbent telecommunications operator in a neighbouring country. Telenordia derives similar advantages from its association with Telenor. An acquirer without a presence in the region might be able to provide financial support, but would be unable to provide the same advantages to anything like the same extent. Telia is the most significant and largest potential competitor in Norway and Telenor is the most significant and largest potential competitor in Sweden. As a result, divestment of either of their interests will significantly reduce the restraint on competitive behaviour imposed by both Telia in Norway and Telenor in Sweden, owing, inter alia, to their unique geographic positions and the advantages conferred on them by their respective regulatory positions in terms of access to their local loops.
(142) In their Reply and at the oral hearing the parties argued that there is nothing unique about Telia and Telenor when compared with other possible buyers of the interests to be divested. The parties suggest that the requirements which, according to the Commission, make Telia and Telenor the most formidable potential competitors, would be fulfilled by other operators. In general, the Commission does not deny that there are other telecom companies fulfilling some of the abovementioned requirements, but no company other than Telia and Telenor is able to satisfy all these conditions. It is the combination of these conditions and their cumulative effect, rather than each one of them considered in isolation, which is important and which makes Telia and Telenor unique as potential competitors one of the other.
(143) The parties maintain that the key elements for effective entry into the home market of a telecom incumbent are the entrant's financial resources and technical expertise. Telia and Telenor do not have, according to the parties, unique financial resources and expertise which may not be duplicated by third parties. The Commission is of the opinion that financial resources and technical expertise are certainly pre-conditions for successful competition in the telecom sector as in any other. The Commission, however, considers that they are not the only elements to be taken into account; there are other elements such as brand recognition, as well as the incumbent's subscriber base and the local long distance and international network (including cable networks) and knowledge of the business environment, which play an equally important role and may determine effective entry into an incumbent's market.
(144) The parties maintain that the Telia and Telenor brands confer no particular advantage as, especially for household customers, it is the pricing strategy of a new entrant, which is important. The Commission does not deny that for certain categories of customers competitive pricing may be the key. Nevertheless, the Commission considers that for some other customer brands may be more important as a guarantee of reliability of the telecom services offered. The parties seem to recognise that for business customers brand recognition is important, even if they say that for these customers the major European and international brands, such as BT and AT& T, would be at least as attractive as Telia and Telenor. However, the parties have provided no evidence showing that in Norway and Sweden those foreign brands have achieved or are likely to achieve the same brand recognition as Telia and Telenor. In this context, it is worth noting that BT chose to enter the Swedish market in combination with Telenor and TeleDanmark using a trademark different from its own but rather related to that of Telenor.
(145) The parties contend that proximity of the neighbouring networks does not offer any significant advantage and there are no business/linguistic/cultural ties or knowledge of the markets unique to Telia and Telenor.
(146) As regards proximity of the network, it cannot be disregarded that the possibility of using neighbouring backbone represents (at least for some purposes) an alternative to payment of interconnection charges, which is available only to the parties. In addition, it is self-evident that an adjacent operator enjoys some advantages such as the possibility of providing services (such as the trans-border dispatching of maintenance department technicians) in the neighbouring area using personnel employed in their domestic market, or using its domestic infrastructure as a basis to develop its infrastructure in the neighbouring market. In their Reply, the parties themselves acknowledge, in a rather contradictory way, that "as liberalisation has progressed some operators have looked first to opportunities in neighbouring markets. This pattern is typical of undertakings in any industry as they consider the possibility of expanding out of their domestic market".
(147) As regards the business/linguistic/cultural ties or knowledge of the Nordic market the Commission does not claim that these are unique to Telia and Telenor, but that Telia and Telenor meet this condition and have, in dealing in particular with business customers, an historical advantage over an operator from outside the region.
Elimination of potential competition between the parties
(148) Telia and Telenor represent the strongest potential entrants in each other's national markets. Once they are merged, this competitive pressure would be lost. This would be true irrespective of whether or not they were, prior to the merger, actual competitors. In addition to that, given their relationship of mutual dependency with regard to the termination of their respective traffic (that is to say that Telia had to terminate a substantial portion of Telenor's outgoing traffic, international calls, mobile calls, and others, and Telenor had also to terminate a significant proportion of Telia's outgoing traffic), the parties were in a position to exercise an influence over the level of accounting rates/termination charges applied by each other. This competitive constraint would also be eliminated as a result of the merger.
(149) In their Reply, the parties have contended that they have not represented any greater threat of entry to one another than a number of other operators; and that they did not constitute a competitive constraint to each other prior to the merger based on their bargaining position as suppliers of termination. They claim, in particular, that it would have been illegal for either of them to offer more favourable terms of entry (such as interconnection charges) to each other than those that they offered to other new entrants.
(150) However, in order to foster sustained and strong entry, access to the local loop on competitive terms is an important if not an essential requirement for many telecommunication markets, in particular for broadband services. Within the Nordic region, Telia and Telenor had, prior to the merger, been uniquely well placed not only to use the advantages outlined above in terms of financial capacity, expertise, brand image, etc. but also to "trade" access to each other's networks. Because of the position which the incumbents enjoy in regulatory terms in both Norway and Sweden, as dominant providers of local loop infrastructure, and as major providers of cable networks, each can afford to negotiate access to the other's network on the basis of reciprocity. Given the situation of mutual dependence on each other's network to provide a significant number of telecommunications services (international services, regional services, mobile telephony, Internet, etc.), Telia and Telenor are equally well placed to "negotiate" access on the best possible conditions. Other telecommunications operators, such as those in Sweden, Norway, Denmark or Finland cannot "trade" such access, either because their networks are not big enough to give them any negotiating power against the incumbent, or the regulatory regime in their home territory means that they cannot "trade" access to their own home networks, and thus they have nothing to bargain with.
(151) As already stated, the heightened potential for entry by the two merging parties also arises from geographical adjacency. It has been observed elsewhere in Europe that operators in neighbouring territories are often the first entrant into each other's markets; for example, Belgacom has interests in France and the Netherlands; BT and Cable & Wireless have expanded their interests from the United Kingdom to Ireland, and Deutsche Telekom has its main interests in Austria, Hungary and the Czech Republic. There are also various further factors at work here, including higher brand recognition of a nearby operator, and relatively greater business, linguistic and cultural ties, as well as greater knowledge of close-by markets, and the proximity of their networks (which allows them, inter alia, to by-pass some of the access prices). This is evidenced by the fact they are already among the strongest entrants in each other's country.
(152) Although it is true, as the parties stated in their Reply, that any discrimination in relation to the terms offered for entry may have been caught by Article 82 of the Treaty (or by national law), this is clearly irrelevant, as the purpose of the Merger Regulation is to prevent the creation or strengthening of structures where the abuse of dominant positions would be made possible or enhanced. In any event, the possibility to trade entry is not based on discriminatory entry since the effects of mutual dependency between Telia and Telenor could also benefit other market players.
(153) As to the elimination of the effects of mutual dependency between Telia and Telenor as a competitive constraint on the termination fees charged by the parties prior to the merger the Commission considers, on the basis of the information submitted to it, that the prevailing interconnection charges in Sweden and Norway result from the combined downward pressure of regulation and mutual moderation. The fact that Telia, on the Swedish market, has had to grant non-discriminatory terms of access to Telenor and all other entrants effectively means that all entrants have been able to benefit from, not only the downward pressure on termination charges exercised by regulatory measures, but also that stemming from mutual moderation. The same argument applies to the Norwegian market. This therefore highlights the negative effects flowing from the removal of the mutual dependency exercised as between the parties. Once the merger has been implemented, the effect of this mutual dependency will be lost, as no other operator has exclusive control over an access network to bargain with.
(154) According to the parties the Commission is relying, when claiming that potential competition will be lost, on conduct that would be illegal. In particular the parties could not "trade" entry into each other's market or mutually moderate their behaviour without infringing either national or Community competition law (Articles 81 and 82 of the EC Treaty). The Commission considers that the theory of "trading" entry and the effects of their mutual dependency are based on the common economic interest of both Telia and Telenor and do not require any prior agreement or abusive behaviour. Even if an agreement were required it would not necessarily and automatically be illegal under Article 81 of the Treaty.
Increased ability and incentive to eliminate actual and potential competition from third parties
- Increased ability to raise rivals' costs to competitors, by increasing (or not decreasing) the price of interconnection or degrading the quality of interconnection
(155) The merger will increase the ability and the incentive to raise (or not decrease) termination charges, or to degrade the quality of interconnection. This is so because the merger would eliminate one of the main moderating factors prevailing before the merger, namely the parties' incentive to reach a mutual reduction of their accounting rates, roaming charges, and/or termination charges. It will also eliminate any concerns they might have had about losing revenue as a result of reducing the volume of calls between each other. Finally, because there is now a much larger area under the control of one player rather than two, and because the former incumbents have ceased to be actual and potential competitors, each of them would effectively benefit from the anti-competitive effects of the strategies pursued in the territory of the other, thus removing any incentive on their part to resist such a strategy (foreclosure)(27).
(156) In addition, before the merger, neither of the incumbent operators would have gained from degrading termination, since degradation reduces volume but has no impact on the incumbent operator's margin. After the merger, the new entity would have the ability and the incentive to degrade the termination of calls carried by any entrants, because doing so artificially raises rivals' costs. Indeed, after the merger the parties can single out the entrant for the purposes of degradation(28).
(157) Another advantage for the merging parties is the possibility of "internalising" accounting rates and/or interconnection payments, in particular on the Sweden/Norway route. The merging entities would no longer need to exchange payments between themselves for calls (formerly treated as international) between Norway and Sweden. Only their competitors would have to pay prices determined by accounting rates and/or interconnection agreements. Other players would thus be at a competitive disadvantage as a result of the merger.
(158) In their Reply, the parties contend that the net revenues from international traffic between the parties is small compared to their total fixed telephony revenues, and that any advantage for Telia would be negated by an equally sized disadvantage for Telenor, and vice versa. This argument is, however, largely irrelevant. First, the net revenue between the parties can only measure whether traffic between the two countries is balanced in financial terms. It says nothing about the absolute size of the traffic, and therefore the importance of the revenues from these services. Second, the argument that any effects of increasing accounting rates or interconnection charges may result in a zero-sum game between the parties, obriously says nothing about the effects that such a strategy can have on competitors. Instead, for the purposes of assessing the importance of the merged entity's ability to internalise these costs, the relevant point is to note that, for all entrants, these international services constitute a significant part of their total turnover. New entrants will be forced to terminate the majority of their calls on the incumbent's local loop. Indeed, operators offering carrier pre-selection or call-by-call selection for calls on the Norway-Sweden route would in all likelihood need to originate calls on the incumbent's local loop as well, and would thus be doubly disadvantaged since the new entity could "internalise" both their termination and origination charges. At the oral hearing the parties argued that third parties could easily find a way of moving off the accounting rates, if they chose to, either by self-corresponding or finding someone other than the incumbent with whom to correspond. However, even if they did this competitors would be in a disadvantageous competitive position vis-à-vis the merged parties. They would still incur origination and/or termination charges that Telia and Telenor would have internalised through the merger. They could also pay more because, as already seen, the parties will have the ability and incentive to increase termination and origination margins or to degrade the quality of interconnection as a result of the merger. Finally, in order to self-correspond the competitors would have to incur additional costs by acquiring switching and transport services to have access to the incumbents' interconnection points.
(159) It is important to note that "internalisation" applies not only to the costs of providing all types of fixed telephony services(29) but also to regional services (such as business data communications) provided over the Nordic countries and mobile telephony in relation to both roaming and interconnection. In their Reply, the parties essentially agree that the same issues are relevant in relation to internalisation of roaming charges for mobile telephony, as already described for fixed telephony. It can therefore be concluded that the merger would provide the parties with the same advantages as described in relation to fixed telephony also in relation to their mobile activities. In particular, they would gain the power to abolish roaming charges between each other or to bring them to the level where the price of a call between Norway and Sweden attracts no extra international supplement. If other Norwegian and Swedish mobile telephony operators were to attempt to replicate this by agreeing to abolish roaming rates between themselves, they would be faced with the difficulty that, unless the flow of traffic is entirely balanced, one would effectively be subsidising the other. Moreover, they would remain subject to the merged entity for a large proportion of their costs, as they would continue to need access to the local loop in both countries for termination of calls.
Increased ability to "bundle" products across a wider geographic area
(160) The parties will have a unique position in the Nordic region in relation to local access. They will control access in Norway and Sweden, and have a legal right to access in Finland and Denmark. As a result, the merged entity will be the only entity able to offer "bundled" products (for example combined mobile and fixed telephony packages, combined data/voice/Internet packages) across the Nordic region at terms and conditions that no one else will be able to match. Whereas prior to the merger there were two providers, or at least potential providers, of such a service on a similar basis in the Nordic region, the result of the merger is that there will be only one remaining supplier able to have local access in all four countries.
(161) In their Reply the parties argued that they would not enjoy any special ability to bundle in the Nordic region. However this proposition was based on their contention that the regulatory regimes in all four territories were essentially the same, whereas it is clear that a significant difference is that local loop unbundling is available in Denmark and Finland but not in Norway and Sweden. This difference alone would be enough to provide them with the advantages referred to above.
The parties would be able to gear a secure captive home market in order to prevent entry by operators in Finland and Denmark.
(162) A number of third parties commented that the regulatory regimes in Finland and Denmark were more favourable to entrants than the regimes in Sweden and Norway, inter alia, due to the existing requirements of local loop unbundling in the former countries.
(163) This means that the merged entity would gain increased ability to protect its home market from new entry by operators based in the more liberalised markets in Finland and Denmark. Not only will the merged entity have a total business volume which is significantly larger than any operator in Denmark and Finland, it will also be able to obtain unbundled access to the local loop in Finland and Denmark, which will not be possible for the operators from those countries if they want to enter the home countries of the merged entity. This will deter Danish and Finnish operators from entering Sweden and Norway, as they will know that any entry would provoke retaliatory action from the merged entity in their home markets, where the merged entity can finance its entry by extracting economic rents from its captive customers in the Norwegian and Swedish markets.
(164) Prior to the merger, neither Telia nor Telenor were as well equipped to prevent entry into their respective "captive home market". The reason for this is that both of them needed access to each other's market to provide a number of services for their own customers, such as international calls and regional services that effectively cannot be provided on competitive terms without reasonable access to the local access network in all relevant countries.
(165) Prior to the merger, the parties therefore had an incentive to allow each other entry on mutually beneficial terms. This can be seen from the establishment of Telenordia and Telia Norge. The establishment of Telenordia is also an example that the parties were uniquely positioned to provide a platform for third parties to enter the Nordic region through an alliance. If the operation were allowed to go ahead in its notified form, the combined entity would become the single operator in the Nordic region with complete control over the local access network in its home market. It would therefore gain an increased ability to restrict entry from operators established in Denmark or Finland (or any other country).
(166) In addition to raising barriers to entry from other operators in the Nordic region, the unique position of the new entity in terms of access to essential facilities (local loops) across the Nordic region would also give it a strategic advantage as it effectively would become the only telecom operator in the Nordic region with whom non-Nordic operators could form alliances, for example, for the provision of the Nordic component of a European or global business data solution.
(167) The parties consider that the Commission invokes conduct that is effectively precluded by regulation as an indication of additional market power created by the merger. In particular, the parties claim that any attempt by the merged entity to raise prices, or avoid a decrease in prices, would be precluded by law in the absence of genuine cost justification. The Commission has already pointed out that its reasoning hinges on the parties' ability to eliminate actual and potential competition from third parties rather than on cost orientation of interconnection conditions. In any event the Commission considers that the historic basis of cost accounting accepted in Sweden and Norway may lead to a situation where interconnection rates are higher than actual costs. This would result in high profit margins for the incumbents which will thus be able to avoid any decrease in interconnection charges. As regards the regulatory control over interconnection charges, it is to be borne in mind that under the Merger Regulation the test is whether a concentration leads to the creation or strengthening of a dominant position. Once the Commission has been able to prove the existence of strengthening of a dominant position, the dominant position is not negated by the existence of regulatory control over prices or other anti-competitive behaviour. The examples given by the Commission are not the reason for prohibiting the concentration, but are indicators of the existence or strengthening of a dominant position.
MARKET BY MARKET ASSESSMENT
Provision of local loop infrastructure
(168) Telenor estimates its total local loop capacity in Norway at [...](30) Mbit/s x km. Telia estimates its local loop capacity at [...](31) Mbit/s × km. An indication of the importance of their capacity holdings in relation to that of their competitors is given by the market shares for local loop calls, as detailed below. Telia in Sweden, and Telenor in Norway, are respectively the dominant providers of local loop infrastructure in their respective countries, and own the vast majority of such connections. Entry by other competitors, in terms of building or upgrading new competing networks, is difficult because of the cost of replicating, upgrading or expanding networks.
(169) In Sweden, since unbundled local loop access is not available, the firms identified as competitors must generally, therefore, offer local loop services by other means. The parties pointed out that some local municipalities (for example, Stokab, Gotnet, Linköping Energi, Bitnet and Gavlenet) owned optical fibre networks and offered Internet services over cable-TV lines. These networks are, however, comparatively very small. The parties contended that cable-TV networks could be used for telephony. This is probably correct in so far as the networks can be upgraded for voice telephony. So far, the upgrading of cable-TV networks has generally focused on modifications to the network architecture (from "cascade" or "trunk and branch" to star-shaped) in order to allow the use of high-speed Internet downloading, but not on the work required to introduce traditional telephony services over cable-TV networks. This would involve investments in high-capacity return paths, which is significantly more costly (a ratio of 5:1, according to one competitor). Another disadvantage is that cable-TV networks are geographically limited to the extent of the network owner's subscriber base. Therefore, the new entrants will be dependent to a considerable extent on the incumbent because most of their outgoing traffic will still have to be terminated on the incumbent's network, while only a very small proportion of the incumbent's outgoing traffic will have to be terminated on the new entrants' networks. Thus the bargaining power of these entrant networks against Telia is very small when it comes to the price of interconnection. By raising the price of interconnection, or by imposing onerous technical compliance requirements, the notifying parties would be in a position to raise the costs of entrant networks in relation to all the traffic that they are obliged to hand over to Telia for termination, which is likely to form a substantial proportion of their entire traffic. Although it might be argued that the parties are constrained by regulation from raising prices, they would still be in a position not only to impose the maximum prices rise possible within the regulatory system, but also to disadvantage new entrants by tactics which do not involve price, for example, by practising degradation strategies. In addition to that, regulation in Norway and Sweden with regard to interconnection is ex post and cannot thus be considered for the purposes of merger control as an effective constraint on the market behaviour of dominant companies(32).
(170) The parties also identified as actual or potential entrant companies those who offered dedicated access to business over radio links (Teracom, Rymdbolaget). It was noted however that all these offerings were either confined to relatively small or localised customer bases, such as the networks of a municipality, or were not yet at the stage of full commercial operation (radio links).
(171) Moreover, none of these companies are able to compete head-on with the incumbent across the whole range of local loop subscribers, and in the main they either target high volume business users, or offer some technological variant (cable-TV, radio link) which avoids the problem of being unable to get unbundled access to the local loop.
(172) Finally, it should be noted that one of the most important potentially competitive networks, namely the biggest cable-TV network in Sweden, is already in the hands of Telia. In Norway Telenor owns the second-largest cable-TV network, Telenor Avidi(33). Although the parties' cable-TV networks would be capable of being upgraded to provide telephony services, there is no incentive for either Telia or Telenor to do so, given that they would be competing with themselves in the provision of local loop infrastructure. These networks can therefore not be considered to provide the customers connected to them with a potential alternative telephony connection as long as they remain controlled by the parties.
(173) In Norway, other actual or potential competitors include: Janco Multicom (offering telephony through its cable television network); Eltele (offering local loop access via optical fibre to larger public bodies and businesses); Enitel (offering optical fibre and radio link access services but not apparently voice telephony as yet); and NetCom (offering local loop via leased lines as part of a business package).
(174) The arguments in relation to Norway are similar to those already developed in relation to Sweden. The entrants on this market are not able to obtain local loop access other than through the incumbent's networks. They can offer either carrier pre-selection or call-by-call carrier selection, or access through cable television networks. They are, however, hampered in the way described by being unable to earn revenue through call termination. They are therefore unable to pose a significant competitive threat to Telenor's dominance.
(175) The low level of entry in this market highlights the difficulties of entry generally. Without unbundled local loop access, new entrants cannot develop a market position of their own for both incoming and outgoing calls unless they are prepared to invest in their own networks. The upgrading and expansion of existing cable networks can present a viable alternative to the incumbent's network, especially where the new entrant can provide cable-TV, telephony and Internet access over that network in competition with the incumbent. However, as noted above, Telia owns the largest cable network in Sweden and Telenor the second largest network in Norway. In addition, building out entire new networks, or upgrading and expanding existing cable and/or other networks for bi-directional use by individual subscribers would certainly require substantial amounts of time and capital. Although, in particular, cable-TV networks can in the medium to long term provide an interesting economic proposition for the provision of the full range of telecommunication services, there are no indications that such a development is under way in a way that would reduce the competitive concerns related to the parties' control over the only existing local access network for telecommunication services. Accordingly the barriers to entry remain high. As explained above, the concentration will have the effect of removing Telia and Telenor as the most significant potential sources of competitive constraint to open up their respective local networks to access by competitors.
(176) For these reasons, the proposed operation would strengthen the dominant position already enjoyed by the two incumbent operators in their respective domestic market for the provision of local loop infrastructure in each country.
Provision of long distance/international network infrastructure
(177) Telenor estimates its total long distance capacity as some [...](34) Mbit/s × km, and its international capacity (or more accurately the national part of its international capacity) at [...](35) Mbit/s × km. About [55 % to 65 %](36) of the long distance capacity is used by Telenor or by third parties (e.g. through interconnection). About [35 % to 45 %](37) of it is available for leasing. According to the parties' estimates, about [65 % to 75 %](38) of all long distance capacity leased in Norway was leased from Telenor.
(178) There are other suppliers of network infrastructure in Norway, including Telia Nättjänster Norden AB (see section IV). A number of competitors were concerned that all the possible supplies of alternative cable infrastructure were substantially in the hands of utilities which were said to be owned by the government or potentially subject to its influence, such as Jernbaneverket (the rail administrator) and Enitel (a consortium of Electricity companies) and ElTele. In its market investigation the Commission has however not found any evidence of the existence of a conflict of interest that would reduce the incentives for these alternative providers to offer their capacity as an alternative to that of Telenor.
(179) For Sweden, Telia (whose capacity holdings are categorised in a different way) estimates its regional capacity at [...](39) Mbit/s × km, and its long distance capacity as some [...](40) Mbit/s × km. Approximately [20 % to 30 %](41) of Telia's network capacity is leased out to third parties (customers and operators) Telia say no particular capacity is earmarked for its own use. In an independent report referred to by the parties(42) it was estimated that 43 % of long distance leases were leased from Telia. There are other suppliers of long distance network infrastructure in Sweden, of which Banverket and Svenska Kraftnät were said to be the largest suppliers. Other alternative suppliers include, inter alia, Tele2, Stokab and a large number of municipalities. Although none of these other suppliers of long distance infrastructure has a capacity equal to that of Telia, it nevertheless cannot be disregarded that they individually and in combination have access to substantial amounts of alternative capacity, which they offer on the market (including dark fibre). Again, the Commission's market investigation has not produced evidence of the existence of a conflict of interest that would reduce the incentives for these alternative providers to offer their capacity in competition with Telia.
(180) At present, if the prices for capacity in one country were to rise compared with the prices in the other country, operators seeking capacity could be tempted to look for solutions which enable them to use capacity on the other side of the border (which is land-based and has several connection points for telecommunication, whereas the infrastructure in other neighbouring countries such as Denmark, Finland or Russia would not be suitable for this purpose, either because it would require a new connection across water, or because it has fewer connection points). Thus if, say, Telenor's capacity prices were to rise too high in Norway, the possibility exists that Telia Norge could make use of its special position by offering long distance transport for at least certain parts of Norway, and in particular communications in the North-South direction, by bringing the traffic over the border into Sweden on leased lines, running it over Telia's long distance networks, and redelivering it back to Norway, again over leased lines, but close to the point of delivery. The same could of course work in reverse. In their Reply, the parties have indicated that this is an unlikely scenario, given that the majority of all customers are located in the southern parts of Sweden and Norway respectively. Nevertheless, the fact remains that for a certain part of the business, such a routing solution may be a viable option. Although Telenor might be tempted to dismiss any such claims as a negotiating tactic, it would be unable to rule it out entirely as a competitive response, and as such the threat would impose a constraint on Telenor's pricing to some extent. In any event, each side has as much to lose as the other, because if Telia Norge is disadvantaged by high prices in Norway, Telenordia could be the subject of reciprocal action in Sweden. In their Reply the parties claim that any such action would breach national or Community law. It is to be said in this connection that the possibility of controlling future abuses under national law or Community law does not constitute a justification for the creation or strengthening of a dominant position. Once the merger had gone ahead, such constraints would disappear, and the parties' dominance on both markets would be strengthened.
(181) In addition, before the merger each of the parties could, at least for sales to business customers, have by-passed the incumbent's national infrastructure in the territory of the other through dedicated access, i.e. leased lines or virtual private networks. This possibility would also be eliminated through the merger.
(182) As a result, the proposed operation would strengthen the dominant position held by Telenor on the market for the provision of long distance and international network infrastructure in Norway. Given the undertakings offered by the parties concerning the divestiture of their overlapping activities, their cable-TV businesses and the provision of LLU (see section IV below), it is not necessary to determine whether the transaction would have led to the creation or strengthening of a dominant position on the Swedish markets for the provision of long distance and international network infrastructure.
Subscriber access to telephone services
Subscriber access to local services
(183) In Sweden Telia has [90 % to 100 %](43) of the market based on revenues. There are a number of competitors with very small market shares, who account for the remaining [0 % to 10 %](44), including Tele2 and Telenordia. With a market share of this size, Telia is clearly dominant.
(184) In Norway, Telenor is the incumbent, with a [90 % to 100 %](45) share of the market. Such a high market share indicates a dominant position. Telia has a [0 % to 10 %](46)(47) share, through Telia Norge, and Tele2 has less than a [0 % to 10 %](50) share.
(185) The merger would eliminate actual competition from Telenordia in Sweden and from Telia Norge in Norway(51). It would also eliminate the most effective potential competitor in Norway and Sweden. Finally, the merger would increase the ability and incentive of the new entity to raise interconnection prices (or not decrease prices) or degrade access to the local loop for the provision of domestic services for the reasons outlined above. For example, before the merger, Telenor would be restrained in its ability to raise interconnection charges vis-à-vis its domestic competitors because this move would have affected Telia Norge which in turn might have caused Telia to use its bargaining position vis-à-vis Telenor's or Telenordia's activities in Sweden. After the merger this restraint would disappear(52).
(186) For the reasons outlined above, and for the other more general reasons outlined in the introductory section of the competitive assessment, the concentration would strengthen the incumbents' existing dominant positions on the market for subscribers access to local services.
Long distance services
Long distance in Norway and Sweden
(187) According to information supplied by the parties, there were some [...](53) million minutes of long distance traffic in Norway and some [...](54) million minutes in Sweden.
(188)
TABLE
(189) In Norway, Telenor has a dominant [90% to 100 %](55) market share, with Telia Norge having [0 % to 10 %](56). Telia Norge therefore has one sixth of the market share not already controlled by the incumbent. In Sweden, Telia has a [70 % to 80 %](57) share. Telenor is represented in the Telenordia joint venture, which has a [0 % to 10 %](58) market share. This [0 % to 10 %] represents around one quarter of the part of the market not held by the incumbent.
(190) The merger will result in the removal of actual competition from Telia Norge in Norway and from Telenordia in Sweden, as Telia Norge and Telenordia will disappear as competing suppliers. For the reasons already outlined, the merger will also result in the removal of potential competition which Telia and Telenor would have been able to bring. An important element of providing a long distance service is the ability to get interconnection with the incumbent's network and with other competitors. A competitor wishing to transport long distance traffic may have to pay the incumbent for the use of his networks (for example, if the call has become by carrier pre-selection or call-by-call selection), pay the cost of leasing the long distance lines, again possibly from the incumbent, and then pay for interconnection to deliver the call back onto the incumbent's network for termination. The incumbent is in a position to control all these costs.
(191) The merger will give the parties an enhanced ability to eliminate competitors by raising the prices of or degrading interconnection to third parties seeking to terminate calls, or by offering its own customers a better deal on long distance calls than competitors can offer once they have paid for the necessary interconnection rates. They would have an increase ability and incentive to raise rivals' costs for the same reasons as outlined above with regard to local calls because their own subsidiaries operating in the others' territories would no longer be harmed by retaliatory price increases by the other incumbent. When Telia and Telenor were separate entities the prices at which they offered long distance services and associated support were constrained by the knowledge that they could not raise prices to competitors, including each other, without harming their own interests in the adjacent territory, and possibly that their customers could have the incentive to look for ways of using cross-border infrastructure as a means of putting price competition on their main supplier. After the merger this constraint would be gone. In addition to that, they could gear their control of the local loop in their dealings with operators seeking interconnection because that local loop control gives them an advantage their competitors cannot offer. They could also offer long distance products over a much wider geographic area, and undercut competitors whose offerings remain constrained by national boundaries. This would be compounded by the fact that they have a very strong position in their respective national territories for the supply of underlying infrastructure (cable capacity).
(192) As a result, the proposed operation would strengthen the dominant position held by the parties on the markets for the provision of long distance services in Sweden and Norway respectively.
International
(193) The international market can be regarded as either a market for the supply of international telephone services, or as a market for specific country pairs.
(194) Taking the market first as a whole, according to the information provided by the parties in their form CO, international calls traffic in 1998 amounted to [...](59) million minutes in Norway and [...](60) in Sweden.
(195)
TABLE
(196) On a national market basis, the shares clearly indicate that Telenor, with [80 % to 90 %](61) market share, has a dominant position on the Norwegian market. Also for Sweden, Telia's [60 % to 70 %](62) share of international calls is indicative of a dominant position.
(197) These market shares show dominance measured by the parties' shares of overall international traffic. The following analysis will consider the flow of international traffic between specific countries. As regards traffic to individual countries, in 1998 Telenor sent [20 % to 30 %](63) of its international traffic to Sweden, [10 % to 20 %](64) to Denmark, and [0 % to 10 %](65) to Finland. Telia sent [15 % to 25 %](66) of its international traffic to Norway, [10 % to 20 %](67) to Denmark, and [0 % to 10 %](68) to Finland.
(198)
TABLE
(199) These two tables demonstrate that the Nordic traffic flows represent a significant volume of traffic.
(200) The merger will result in the removal of actual competition from Telia Norge in Norway and from Telenordia in Sweden, as Telia Norge and Telenordia will disappear as competing suppliers. For the reasons outlined above, the merger will also result in the removal of potential competition which Telia and Telenor would have been able to bring.
(201) Moreover, as seen above, the merger will also increase the incentive and the ability of the merged entity to discriminate against third parties. In terms of the impact on specific country pairs, as outlined above, the merger will increase the ability and the incentive to raise (or not decrease) termination charges, or to degrade the quality of interconnection. Although not all calls will require termination in Norway or Sweden (inter alia, because some competitors on the route may offer only outgoing call services) even these will still incur charges for the origination of traffic on the incumbent's networks, and thus the operators concerned are dependent on the incumbent for a proportion of their costs.
(202) The parties have maintained that the size of their traffic across that border is very small, representing no more than a small percentage of their business turnover. However, it was noted that [20 % to 30 %](69) of Norway's international traffic went to Sweden, and around [10 % to 20 %](70) of Sweden's international traffic went to Norway. Third-party competitors said that international traffic between the two countries represented a substantial portion of their revenues. International routes are often a means by which competitors are able to enter countries whose telecom markets were hitherto dominated by incumbents. Evidence supplied to the Commission by third parties confirmed that the cross-border traffic was much more important to them in overall revenue terms than the parties claimed it was to themselves. This merger would thus have far more of an impact on the cost base of competitors because competitors tend to rely more on Norway/Sweden international traffic than the incumbents appear to do not only for the route in question but also for bundled products.
(203) As regards calls to Denmark and Finland, the merged entity will have no fear of retaliation if it increases its accounting rate with other operators in the Nordic region. It can terminate its own outgoing traffic in those countries through its own subsidiaries. Telia or Telenor subsidiaries in Denmark or Finland can either terminate traffic using their rights to unbundled local loop access, or interconnect with the local incumbents on regulated terms, with the comfort of knowing that competitors in Denmark and Finland have less opportunity to retaliate because they have no means of landing traffic in Norway or Sweden which enables them to avoid the incumbent's accounting or interconnection rates(71).
(204) As a result, the proposed operation would strengthen the dominant position held by the parties on the markets for international telephony in Sweden and Norway respectively, in particular with regard to the Swedish/Norwegian country pair.
Mobile telephony in Norway and Sweden
(205) Telia and Telenor operate mobile telecommunications businesses in Sweden and Norway respectively. Telia Norge has been granted a GSM licence in Norway and Telenordia has been granted a GSM licence in Sweden. The merging parties would benefit from the licence holdings they would possess in Denmark and Finland.
(206) In 1998 the Swedish market for mobile telephony was estimated to be in the order of EUR [1500 to 2000](72) million. On this revenue basis, Telia was estimated to have a [50 % to 60 %](73) share of the Swedish market, with Europolitan having [20 % to 30 %](74) and Comviq having [10 % to 20 %](75). On a call minute basis the market was [...](76) billion call minutes. Telenor's market share in Norway for mobile telephony (GSM) was [65 % to 75 %](77), and the competitor, Netcom GSM ASA had [25 % to 35 %](78). On this basis the parties have a very strong, if not dominant position, on their respective markets.
(207) On the basis that the markets are national, the parties argue that no overlaps arise in Norway or Sweden, because neither of their subsidiaries uses the GSM licence which they have been allocated. However, the fact that the respective subsidiaries already have spent the effort and funds necessary to acquire these GSM licences must be regarded as indicative of a clear intention to enter each other's market. Moreover, given the above indicated importance of traffic between Sweden and Norway, and the parties' ability to terminate calls at cost in their home markets, it has to be concluded that both parties, without the merger, would have been in a good position to utilise their GSM licences to make a forceful entry into each other's home market. Such an entry could, in the same way as will be explained below, have been based on abandoning roaming charges between Norway and Sweden. The merger will therefore eliminate a significant potential competitor in both Norway and Sweden.
(208) As to mobile telephony in the Nordic region the same concerns arise as those identified in relation to fixed telephony. The merger would give the parties the opportunity to eliminate roaming charges or to bring them to the level where the price of a call between Norway and Sweden attracts no extra international supplement. They would have an incentive to do this as a business strategy for removing competitors. Indeed, the concept of roaming charges becomes academic, as payments made from one network to another would be simply payments from one side of the merged entity to the other. Consumers in Sweden could order their service in Norway or vice versa and use the telephone permanently in roaming mode. The parties, by abolishing roaming charges (or reducing roaming charges on calls made over their shared networks to the point where the calls were effectively treated as national calls) could undercut the prices offered by competitors who were forced to remain with the roaming charge regime or risk cross-subsidising each other if the traffic were out of balance.
(209) In addition, for the reasons outlined in relation to fixed telephony above, the merger will increase the ability and the incentive to raise (or not decrease) termination charges, or to degrade the quality of interconnection. Indeed, access to mobile telephony is subject to the same considerations as any of the other services for which access to the local loop is important in order to be able to offer services. The fact that other mobile operators would have to turn to the parties for termination of their call traffic in Norway and Sweden on the parties' local loop puts the parties in the same position as they would be when terminating traffic from a conventional fixed network.
Mobile telephony in Ireland
(210) The only current overlaps outside Sweden and Norway arise in relation to Ireland. Telia and Telenor respectively have joint control of the mobile phone operators which together represent the only two current active operators in the Irish mobile telecoms market. Telia has joint control, with KPN and the Irish State, of Eircom (formerly known as Telecom Eireann). Eircom's mobile operator is Eircell, with a [60 % to 70 %](79) market share. Telenor has joint control, with ESAT Telecom, of ESAT Digifone, the only current competitor, which has a [30 % to 40 %](80) market share.
(211) At the oral hearing the parties declared that they would divest their overlapping businesses so that the overlap between Telia and Telenor in Ireland will be entirely removed. This offer was repeated in the undertakings put forward by the parties (see section IV). Without such a divestiture, the operation would give the combined entity joint control of all the mobile telecommunications operations, namely two, currently operating on the Irish mobile telecommunications market. By giving the merged entity joint control over all players active in the market, the merger would thus, in the absence of appropriate divestitures, lead to the creation of a dominant position in Ireland.
Operator access to local loop networks (Norway and Sweden)
(212) The market power of operators supplying local loop services may be a function of the amount of traffic they can terminate, which in turn depends on the number of subscribers and the volume of traffic directed to them.
Market shares for local loop traffic through Telenor's network((The parties pointed out that these figures include market shares only for traffic originated through Telenor's network, and that their market shares would be lower if traffic through the other networks were added. However, given that Telenor does not provide unbundled local loop access, the majority of traffic originated by local loop competitors will be originated on Telenor's network through carrier pre-selection or call-by-call selection. On call termination, only those networks with their own fixed local loop access would be able to terminate traffic anyway, and they could only expect to terminate a proportion based on their size relative to that of Telenor. The distortion element would therefore amount to no more than a few percentage points.)), 1998
TABLE
(213) It will be seen that, whether the figures are taken in terms of revenues or call minutes, or subscriber numbers, Telenor still controls access to the local loop. Telenor does not offer unbundled access to the local loop and before 1998 it had a 100 % share. Since 1998 competition has developed. The parties say that Telia Norge registered some [...](81) carrier pre-selection customers, Tele2 some [...](82) customers and Tele 1 Europe some [...](83) customers. However, these new competitors are unable to gain revenue from call termination, and only competitors who have their own fixed access, such as radio loop or business customers with a fixed link to another operator, are truly able to compete against the incumbent.
(214) In Sweden the parties estimate that Telia had some [90 % to 100 %](84) of local loop revenues and [90 % to 100 %](85) of call minutes, or [90 % to 100 %](86) of subscribers. Such a high market share indicates a dominant position. Carrier pre-selection is not yet available in Sweden, but was due to be introduced on 11 September 1999. Owing to disputes over the implementation of the select procedure, where Telia has refused to transfer customers to other operators unless certain conditions are fulfilled, there has been an agreement to prolong the transfer period by another two months (11 November 1999).
(215) Both Telia and Telenor can therefore be considered as dominant in this market. The merger will strengthen Telenor's dominant position in Norway by eliminating Telia, which is together with Tele2 its strongest actual competitor. Moreover, as explained in the introductory section of the competitive assessment, the merger will eliminate the potential competition existing between the parties.
(216) Because of the elimination of actual and potential competition, the new entity will be in a stronger position to increase rival's costs for access to the local loop network, for the reasons outlined in the introductory part of the competitive assessment.
(217) As a result, the proposed operation would strengthen the dominant position held by the parties on the markets for operator access to local loop networks in Sweden and Norway respectively.
Operator access to long distance and international networks
(218) The market share figures shown above for long distance and international calls illustrate the parties' dominant position in the handling of long distance and international call traffic. Within the national territory, operators seeking to offer long distance or international network access would be hampered by their inability to offer call termination services as a quid pro quo. Although they might agree to take long distance or internationally-bound traffic from entrant local loop operators, they would find it difficult in the long distance market to offer competitive pricing because of the need to interconnect with the incumbent in order to terminate the call. In any case, operators will rely on the incumbents' network for call origination, and therefore will be dependent on the incumbents for a proportion of their costs. On the international side, they would be unable to drive an effective bargain with operators outside Norway and Sweden looking for an operator to terminate calls on their behalf in Norway and Sweden, because their prices would have to include an element for access to the local loop. The incumbent could at any time render their efforts nugatory by rebalancing strategies. Because the incumbent would be able to combine networks across the two countries, and control access to final users, he would enjoy a cost position which rivals could not replicate. As a result, the proposed operation would strengthen the dominant position held by Telenor on the market for the operator access to long distance and international networks in Norway. Given the undertakings offered by the parties concerning the divestiture of their overlapping activities, their cable-TV businesses and the provision of LLU (see section IV), it is not necessary to determine whether the transaction would have led to the creation or strengthening of a dominant position on the Swedish markets for the provision of long distance and international network infrastructure.
Business data communications
(219)
TABLE
(220) The parties' dominance would be increased as a result of the merger by an increase in their market shares. The merger would eliminate the first largest competitor of the incumbent operator in both Sweden and Norway. In Sweden, the four largest competitors would be Tele2, with [5 % to 15 %](87), Global One, with [0 % to 10 %](88), MCI WorldCom, with [0 % to 10 %](89), and Sonera, with [0 % to 10 %](90). In Norway, the largest competitors would be Posten SDS, with [0 % to 10 %](91), IBM, with [0 % to 10 %](92), Global One, with [0 % to 10 %](93), Equant, with [0 % to 10 %](94), and Fellesdata, with [0 % to 10 %](95). In addition, the merger would eliminate the most effective potential competitor.
(221) There are examples of companies active in this market who supply essentially a "Nordic" business data communications product. One such company is Telenordia, the joint venture between Telenor, BT, and Tele Denmark, which is specifically aimed at providing such services in Sweden and in the Nordic region, inter alia, to customers looking for business communications solutions in the Nordic area; and Nordicom, a service provided by Telenordia, Tele Danmark and Telenor whereby they offer high speed business communications services in the Nordic region. Third parties have also provided a significant number of examples of Nordic companies which have expressed an interest in services limited to their specific Nordic telecommunications needs.
(222) The merger could have an impact on the business data communications market in two ways. One concerns access to local loop and the other concerns access to infrastructure. Those competitors in the business data market who seek to have access through the PSTN would suffer vis-à-vis the parties from the competitive disadvantage that they would be unable to offer equivalent services to those which the parties were capable of offering. Specifically the parties could use their control of the local loop to "bundle" business data communications offerings with local loop services, such as voice services, across the whole Nordic region. In this context, the parties are able to offer products which have been specifically designed for the Nordic market and which offer a coverage of the four Nordic countries. Although it is not necessary to conclude whether these products could be regarded as constituting a distinct market, the Commission's investigation has found that some Nordic companies have expressed an interest in services limited to their specific Nordic telecommunications needs. All other things being equal, such "Nordic" products would therefore be attractive to a buyer choosing a business data communication product. In Norway and Sweden at least, the parties' competitors would not be able to offer business data products which included local loop services, as they would be dependent on the parties if they needed to offer local loop access, and the parties would have an increased ability to increase their costs or to discriminate against them, for the reasons outlined above. Therefore competitors would be at a disadvantage.
(223) In addition it is to be borne in mind, as explained in the introductory section of the competitive assessment, that the parties are capable of implementing anti-competitive practices in respect of all data communication services (as well as other telecom services) in the Nordic region. In Denmark and Finland, local loop access is regulated and, consequently, access to the local loop is available in a more cost-effective manner than in Norway and Sweden, where there is no local loop unbundling obligation. This situation and the cost internalisation resulting from the merger is likely to raise the access costs that the merged entity's competitors will have to incur in Sweden and Norway to provide Nordic regional services to their customers. On the contrary, the combined entity will keep benefiting from the more liberal access provisions in Denmark and Finland and be able to terminate calls in those countries in a cost-related way. Therefore, by gearing its strengthened position at the local loop level the merged entity will have the possibility of foreclosing competition in the Nordic region.
(224) The parties would be able to rely on their strong position on leased line capacity (see discussion above).
(225) If the merger strengthens the position of the combined entity in its dealings with other telecom operators, then private data networks seeking to interconnect like operators are likely to be among the first casualties, because of their relatively limited bargaining power in such negotiations. Telia/Telenor will be able to offer favourable terms for bundled packages which include loop access, at a price designed to ensure the data network operator has little or no choice but to accept becoming a customer of the services in question from Telia/Telenor. The merged entity can thereby render the offerings of would-be competitors uncompetitive as least as far as local call termination is concerned, and over a much broader area than would have been possible prior to the merger.
(226) In Norway, Telenor provides network transport services to a number of business data communications providers. Its main customer is Telia Norge, which in 1998 acquired network transport services for EUR [...](96) million. Telia Norge bought also EUR [...](97) million physical components from Telenor. The merger will enable the parties to internalise these costs and thus bring about another competitive advantage to the merged entity.
(227) So far as concerns the possibility of offering pan-Nordic telecoms services, the merger will eliminate the potential competition existing between Telia and Telenor. Indeed these were the only two companies prior to the merger who were in a position to offer a service encompassing their own countries as well as Finland and Denmark, with a privileged access to the local loop, and the only ones in a position to "trade" access to their local loop in exchange for reciprocal concessions. Finally, it should be borne in mind that Telenordia, Tele Danmark and Telenor have established Nordicom, a joint venture with the aim of providing high speed communications services to business users in the Nordic region. After the merger, the actual and potential competition existing between Telia and Nordicom will be eliminated.
(228) As a result, the proposed operation would strengthen the dominant position held by the parties on the markets for business data communication in Sweden and Norway respectively.
Description of Internet
Internet network, peering and transit agreement
(229) From a technical point of view, Internet is a global network of routers and computer servers connected through cables, normally telecom cables. Both Telia and Telenor own capacity, which is used for Internet purposes, but not all their Internet traffic is transmitted through their networks. Internet traffic can be divided into three groups:
- the traffic sent by an ISP to (a) transit provider(s),
- the traffic terminated by an ISP in its own network (i.e. directly to its end-user customers or to ISP networks which are its customers), and
- traffic sent by the ISP to secondary peering interfaces (traffic transmitted under peering agreements do not result in any payments between the contracting parties)(98).
(230) The parties have given the following description of their networks, and have broken down their traffic flows figures to show traffic falling within each of the three categories above.
Telia
(231) At the top of Telia's network infrastructure in Sweden there are [...](99) nodes. At the level below, Telia manages [...](100) distribution nodes. In addition to these [...](101) nodes, Telia manages [...](102) PSTN dial-up nodes. Telia has entered into peering agreements with [...](103) ISPs at the national interexchange point in Stockholm (the D-GIX), and [...](104) private peering [...](105) with [...](106). Amongst the [...](107) ISPs there are Telenor and Telenordia. Telia does not sell national "transit" (i.e. the provision, to ISPs, of Internet-protocol-based transport of their Internet communications within national boundaries), or termination, but sells transit for international use to other ISPs. Its share of the EEA transit market is approximately [5 % to 15 %](108), on the global market its share would go down to [0 % to 10 %](109).
(232) In Norway, Telia has an Internet network having a node in [...](110) as the centre. This is connected with Telia's Swedish network and with its international network. Telia has peering agreements with [...](111)ISPs, amongst which there is Telenor, at Oslo's Internet interexchange point (NIX). Telia has [...](112) transit customers.
(233) Telia's international Internet infrastructure ("the backbone") consists of [...](113) nodes in Europe and [...](114) in the United States of America. Telia's US Internet traffic is directed from Sweden through the [...](115) cable system and onwards through either the [...](116) cable systems(117). In the United States of America, Telia buys transit from [...](118). Telia also peers with approximately [...](119) ISPs in the United States of America. As regards European traffic, Telia purchases transit from carrier's carriers [...](120) from [...](121). Telia also peers with [...](122) ISPs at the LINX (London Internet exchange).
(234) Telia estimates that about [25 % to 35 %](123) of the traffic originated in its network is sent to transit providers, [20 % to 30 %](124) is terminated in its network, and [40 % to 50 %](125) is sent to secondary peering interfaces.
(235) As regards the geographical destination of Internet traffic, Telia estimates that about [50 % to 60 %](126) of its end-user traffic from the Swedish domestic market is sent to the United States of America. The remaining [40 % to 50 %](127) is towards Europe, of which [30 % to 40 %](128) is domestic/Scandinavian (i.e. [25 % to 35 %](129) directed to Sweden, [0 % to 10 %](130) to Norway, [0 % to 10 %](131) to Denmark and [0 % to 10 %](132) to Finland). Of its total Swedish traffic, [0 % to 10 %](133) goes to Telenordia, and less than [0 % to 10 %](134) to Telenor. As regards traffic originating in Norway, Telia estimates that [25 % to 35 %](135) of this traffic is terminated in Norway, [0 % to 10 %](136) to Sweden, [0 % to 10 %](137) to Denmark, and [0 % to 10 %](138) to Finland. Of its total Norwegian traffic, [0 % to 10 %](139) goes to Telenor and less than [0 % to 10 %](140) to Telenordia.
Telenor
(236) At the top level of its infrastructure in Norway, Telenor operates [...](141) core nodes ([...]). At the level below, Telenor operates [...](142) distribution nodes and [...](143) access nodes. Telenor enters into peering agreements with any ISP having a presence at Oslo's Internet interexchange point. Telenor sells transit services to [...](144) ISPs, its share of the EEA transit market is negligible and below [0 % to 10 %](145).
(237) In Sweden, Telenor, through Telenordia, owns a high capacity Internet infrastructure. At the top level of its network, Telenordia operates [...](146) core nodes ([...](147)). At the level below, Telenordia operates [...](148) distribution nodes. Telenordia owns radio local loop which connects fewer than [...](149) businesses to its Internet backbone. Telenordia accesses the remainder of its customers through interconnect agreements with Telia.
(238) Moreover, Telenor, through Telenordia, owns [...](150) at the Internet exchange in [...](151), where it has entered into [...](152) peering agreements; in addition Telenordia controls a cable connected to a node at [...](153). Telenordia controls a link between [...](154) and [...](155) and is sending Internet traffic over [...](156). Telenordia buys transit services from [...](157) for its European traffic. It has also entered into a transit agreement with [...](158). About [55 % to 65 %](159) of Telenordia's Internet traffic is international and about [70 % to 80 %] of the international traffic is to the United States of America. Its US traffic is transmitted over a cable built by the TAT consortium (the 12 cable).
(239) As to the Telenor's backbone network, Telenor owns [...](160) nodes in [...](161), [...](162) at the international exchange point in [...](163) and [...](164) in [...](165). Its US-directed traffic is routed from Norway to [...](166) through the [...](167) cable, on to Canada through the [...](168) cable, then from Canada is routed over the [...](169) to Telenor's node in [...](170). Telenor leases capacity on the [...](171) network and the [...](172) network from [...](173).
(240) Telenor considers that approximately [50 % to 60 %](174) of its total Internet traffic is directed to transit providers, [20 % to 30 %](175) is terminated in its own network and [15 % to 25 %](176) is exchanged through peering arrangements.
(241) As regards the geographical destination of its traffic, Telenor estimates that approximately [70 % to 80 %](177) of its Internet traffic originated in Norway is international, and [50 % to 60 %](178) is sent to the United States of America, [0 % to 10 %](179) is terminated in the Nordic countries, [...](180) and remaining [0 % to 10 %](181) in other European countries. Telenor estimates that [0 % to 10 %](182) of its total Internet traffic is terminated on Telia's network and less than [0 % to 10 %](183) is terminated on Telenordia's.
ISP services
(242) Telia and Telenor are active as ISPs in both Sweden and Norway. In Norway, taking dial-up and dedicated access together, Telenor has a market share (by value) of [50 % to 60 %](184), and Telia has [5 % to 15 %](185). The combined market share would thus be [60 % to 70 %](186). As to fixed access, Telenor has a market share of [30 % to 40 %](187) (by value and by subscribers), Tele2 and EUNet are the next largest players with [5 % to 15 %](188) each, followed by Telia with [0 % to 10 %](189). For dial-up access, the figures (by value) are Telenor [60 % to 70 %](190), Telia [10 % to 20 %](191), Tele2 [5 % to 15 %](192); based on number of subscribers the parties would achieve a higher combined market share of [80 % to 90 %](193) (Telenor [65 % to 75 %](194) and Telia [10 % to 20 %](195)).
(243) In Sweden, combining dial-up and dedicated access, Telia has [30 % to 40 %](196) (by value), and Telenordia [0 % to 20 %](197). This gives a combined market share of [40 % to 50 %](198). As to fixed access, the market shares (by value) are as follows: Telia has [30 % to 40 %](199), Tele2 [20 % to 30 %](200), Telenordia [10 % to 20 %](201), MCI WorldCom [5 % to 15 %](202) and Global One [0 % to 10 %](203). By subscribers (both dial-up and fixed-access subscribers), the parties would achieve a higher combined market share of [50 % to 60 %](204). As regards dial-up access, the shares (by value) are Telia having [30 % to 40 %](205), Telenordia [10 % to 20 %](206), Tele2 [30 % to 40 %](207), and BIP [0 % to 10 %](208). By number of dial-up subscribers, the parties' combined market share in Sweden would be [50 % to 60 %](209). According to the information submitted in the notification, the parties' market shares have remained relatively stable over the last three years, in particular when compared to the largest competitor, Tele2, which according to the same source has been on a consistent downward trend over the same period (both for dial-up and fixed-access subscribers).
(244) As a result of the merger the parties, because of their stronger position in the capacity markets and their stronger control over the local loop, would become dominant in Sweden, and their already dominant position in the Norwegian market would be strengthened. In particular, the parties are already capable of discriminating against their competitors in favour of their own ISP activities, for example by bundling telephone subscriber and ISP services. Moreover, the parties will be able to cross-subsidise their ISP activities from the increased profits from local loop services.
(245) In the absence of local loop unbundling, ISPs in Norway and Sweden would be in an increasingly poor competitive position when compared with the merging parties. First, both merging parties have publicly announced that they will migrate all of their telecommunications traffic to an Internet protocol ("IP") platform with dedicated access points close to end-users. Without LLU, if competitors also migrated to IP technology they would not be able to provide high speed access because they would not be in a position to place their own electronic equipment both at the user's premises and at the main distribution frame. It will be difficult for ISPs to compete with this large integrated and technically advanced network (covering at least Sweden and Norway, and possibly including the parties' infrastructure throughout the Nordic region). ISPs could then be left with only being able to reach end-users via dial-up access through an increasingly obsolete PSTN.
(246) Second, the merging parties could eliminate competitor ISPs entirely in the absence of LLU. Without LLU, there is no assurance that ISPs can offer broadband services (fast Internet connections) as they could not provide high speed access without placing their equipment both at the user's premises and the main distribution frame. Broadband is essential for emerging Internet applications involving video and speech transmission. The merging parties could decide to offer wholesale broadband services to competitors, but there is no guarantee that they would do so at competitive prices. It is more likely that the merging parties would retain broadband exclusively for themselves, so only their ISP operations would be able to offer fast Internet service to end-users.
(247) As a result, the proposed operation would create a dominant position for the merged entity on the market for Internet access in Sweden and strengthen the dominant position already held by Telenor on that market in Norway.
Internet advertising
(248) According to the parties the Swedish Internet advertising market is an immature emerging market and little reliable information exists on it. The parties maintain, a position repeated in their Reply to the Statement of Objections, that Telia's activities are extremely limited and are all conducted through SOL. The information collected by the Commission in the course of its investigation suggests that this is not entirely accurate. The Commission has been informed that Telia and Telenor, through SOL, control the first and seventh largest Swedish sites, Passagen and Evreka. In addition Telia operates in the Swedish Internet advertising market through at least four sites: Telia Internet, Telia Email search catalogue, Telia's yellow pages site (Gula Sidorna), and Telia's corporate site. Telia sells or barters banner ads and sponsorship on each of these sites.
(249) According to the parties Telia's market share (and thus SOL's market share) is approximately [10 % to 20 %](210). The [10 % to 20 %](211) figure is contradicted by a complainant according to which only three of the above mentioned Internet sites (Passagen, Evreka, and Telia Internet) account for 50 % of Internet advertising revenues. It should be pointed out that the complainant has not been able to provide any evidence to substantiate the proposed 50 % market share. Accordingly, the Commission has no reason to believe that the figures put forward by the parties are not accurate. In addition, Telenordia, which is jointly controlled by Telenor, has a market share of approximately [0 % to 10 %](212). The parties disputed this claim, saying that the total Swedish market for Internet advertising in 1998 was estimated by IRM (the Institute for Advertising and Media) at SEK 207 million, of which SOL's revenues were SEK 29,9 million, or 14,4 % of the market. For 1999 the equivalent figures (estimates) were SEK 408 million and SEK 50 million, giving SOL a 16,4 % share. When the revenues for Telia's other sites, Gula Sidorna and Emfas were taken into account, total estimated share was 16,4 %.
(250) In Sweden, Telia, with the exception of its two sites mentioned above, Telia operates exclusively through SOL. Telenor has no Internet advertising operations in Sweden outside SOL. Given the fact that the parties have already joined their activities in SOL the concentration will have no direct competitive effect on Internet advertising in Sweden.
(251) In Norway, the parties control, through SOL, the largest Norwegian site (Scandinavian OnLine) with a market share of [40 % to 50 %](213) (by value). Telenor, outside SOL, is active through ABC Startsiden AS and Telenor Media. For example, Telenor sells or barters banner advertising on its yellow pages. However, these activities have negligible economic significance. SOL is the market leader with a market share of [40 % to 50 %](214); its three largest competitors are Nettavisen with [10 % to 20 %](215), Aftenposten with [10 % to 20 %](216) and Dagbladet with [0 % to 10 %](217). For the same reasons given above for Sweden the merger will have no direct competitive effects on Internet advertising in Norway.
(252) Following the hearing and on the basis of the arguments put forward by the parties in their Reply, the Commission considers that the parties will not be able to gear their increased market power as ISPs to control the Internet advertising market. The Commission has come across no evidence (in the form of statistics or studies, for example) showing that the control over the Internet "start-up page", provided by the ISPs as default start-up page is the decisive competitive force in the Internet advertising market. In particular, nothing prevents a user from changing to another start-up page and nothing demonstrates that changing to other start-up pages occurs infrequently.
(253) Therefore, the Commission considers that the concentration will not create or strengthen a dominant position in the market for Internet advertising in Sweden and Norway.
Sale of advertising spaces in local and business telephone directories
(254) During the course of this procedure, Telenor has entered into an agreement to divest its Swedish subsidiaries Lokaldelen and Företagsinfo, thereby removing any overlaps between the parties' activities on these markets in Sweden, and thus removing all competitive concerns the operations might have raised in these markets. No further assessment of these markets is therefore necessary.
PABX
(255) Telia is mainly active in the installation and distribution of PABXs in Sweden and has a market share of approximately [45 % to 55 %](218). In that country Telenor operates through Internordia, a joint venture with TeleDanmark, which has a market share of about [0 % to 10 %](219). The major competitors' market shares are as follows, Alcatel [20 % to 30 %](220), Philips [0 % to 10 %](221), Siemens [0 % to 10 %](222) and Enator Dotcom [0 % to 10 %](223).
(256) In Norway, Telenor has an estimated [50 % to 60 %](224) market share. Telia is active through Telia Norge in the supply of large PABXs and has an estimated [10 % to 20 %](225) market share. The main competitor is Alcatel with a [25 % to 35 %](226) share.
(257) Market shares of such a magnitude are strong indicators of dominance enjoyed by each party in its home country. The parties' strong positions are due historically to the fact that Telia and Telenor, as incumbent telephone operators, have had a privileged position in connecting such equipment to the telecommunications system. This is confirmed by the high awareness of Telia and Telenor brands as suppliers of PABXs in Sweden and Norway, respectively.
(258) The parties maintain that barriers to entry are low, in particular, for existing manufacturers wanting to enter the market as distributors instead of selling through third parties. However, the producers' strength is somewhat diminished by the standardisation of PABX technology, which reduces the producer's brand recognition and permits distributors to service a range of PABXs from different manufacturers.
(259) Customers attach a great deal of importance to installation, maintenance and other after-sale services, it is the distributor who takes full responsibility for the product and corresponding service vis-à-vis the customers. A distributor who has built a reputation for supplying PABXs and for providing after-sale services is in a position to capitalise on this strength. The manufacturers do not have the necessary service organisations (which is why they use distributors, such as the parties). The parties argument concerning the threat of entry by manufacturers is therefore doubtful.
(260) At the oral hearing the parties declared that they will divest their overlapping businesses so that the overlap between Telia and Telenor in Sweden and Norway will be entirely removed. Unless such a divestiture is confirmed, the notified merger would strengthen Telia's and Telenor's dominant position in Norway and Sweden respectively in the market for the installation and distribution of PABXs.
II. TELEVISION SERVICES
A. Relevant product markets
(261) Telia and Telenor are active in various fields of what may generally be described as distribution of television services. For Telenor, this includes: the provision of satellite transponder capacity in the Nordic area (that is, Norway, Sweden, Denmark and Finland); direct-to-home ("DTH") satellite TV distribution in the Nordic area (conducted by "Canal Digital", a joint venture with Canal+); cable television activities in Norway (Telenor Avidi AS) and activities relating to technical services for Pay-TV (including the proprietary Conax system). Telia's main activity in this field is its cable television activities in Sweden (Telia InfoMedia Television AB) and in Denmark (Stofa). Both companies are active on the markets for content buying and wholesaling of rights to content.
(262) A general feature of the markets for distribution of television services is the ongoing evolution from analogue to digital techniques. In their notification the parties did not indicate that separate relevant markets should be established for analogue and digital techniques at the various distribution levels. In Decision 1999/242/EC(227) the Commission stated that pay-TV services cannot be subdivided into analogue and digital services. Although analogue and digital services currently exist side by side, most industry sources agree that digital services gradually will replace the analogue ones in the medium to long term. In parallel with this development the TV distribution, Internet and telephony sectors are also widely expected to converge.
(263) In this context of migration to the digital world and the consequent development of new services of enormous potential growth for pay-TV and value-added services, including Internet, Telia's customer base is particularly decisive for the assessment of the notified merger. As it will be explained below, the main driver of the expansion in the relevant geographic market for cable-TV, DTH and SMATV(228), has been the introduction of advertising-financed and "mini-pay" channels. Advertising appeal and the corresponding revenues stem from the customer base that can be offered to the content suppliers and/or advertisers. In the digital environment, access to a large customer base will be even more important in determining the success of service providers such as the merged entity ("Newco").
(264) The present market power of each of the parties, which results directly from their respective customer base, will be reinforced by the benefits of the full vertical integration achieved by this merger at all the levels of the TV-distribution chain. Newco's benefit of the reinforced market power resulting from the vertical integration will be significantly increased in the future digital context described above. Newco's competitors, including Netcom/MtG, have a much smaller customer base, which though valuable in terms of analogue TV revenues, in the future digital context, would be insufficient to contest Newco's competitive advantages resulting from its customer base size and, therefore, from its unparalleled appeal to advertisers and content providers.
(265) The abovementioned market position of Newco, as a result of its unparalleled customer base and the consequent irresistible appeal to content providers, which will be reinforced in the digital environment, has to be analysed in conjunction with the reinforcement of Newco's position in related markets. Newco will, due to the vertical integration brought about by its establishment, have a strong or dominant position across all relevant infrastructures for the carriage of telecommunication services, as well as in cable-TV, DTH and digital terrestrial television (DTT), and is in a strong position to develop Internet and interactive services. Following the concentration, not only the content suppliers would have a strong incentive to contract with Newco, but Newco itself will have an incentive to gear its privileged position at the infrastructures level into the downstream distribution levels. In particular, Newco will have the economic incentive to invest heavily in the acquisition of the most valuable content from content providers and broadcasters in order to irreversibly tilt in its favour the emerging multimedia markets in the Scandinavian countries. In doing so, Newco would have the incentive and ability to target existing competitors, such as Netcom/MTG, which prior to the proposed concentration are important players on the market, in terms of ownership of content and relations with individual subscribers (through analogue decoders).
Satellite capacity
(266) Satellite transmissions are used for distribution of TV-signals, telephony and other communication services. In respect of TV-signals, the customer can be either a broadcaster (CNN, Eurosport, Canal+ etc.) or a TV-distributor (such as Canal Digital, Telia and Telenor). The service may include the provision of uplink services (transmission to the satellite), encoding and various other technical services.
Acquisition and distribution of television signals
(267) In the notification the parties do not differentiate between the provision of TV-distribution infrastructure (whether satellite transmission or cable infrastructure) and the packaging and sales of various individual TV-channels or bouquets thereof.
(268) The parties, however, argue that distribution of DTH and cable television should be regarded as separate markets and that, on that basis, there is no overlap between the existing activities of Telia and Telenor. The parties base this argument on the contention that DTH and cable, from a broadcaster's perspective, are complementary rather than alternative: the broadcaster simply wants to reach as many viewers as possible. In support of this contention, the parties have submitted that all broadcasters sell rights to their programming in the Nordic region separately for DTH and cable. Moreover, for the consumers, it is stated that the substitutability is negligible: the customer is either passed by cable, in which case he will not be interested in DTH, or he is "forced" to use DTH, as he is not passed by cable. Telia has submitted that its cable operation has not lost a single customer to a DTH operator over the last three years. The parties also consider that their definition of separate markets is supported by Commission Decisions 94/922/EC(229) and 96/177/EC(230) in previous merger cases (Case IV/M.469 - MSG Media Services and Case IV/M.490 - Nordic Satellite Distribution).
(269) The Commission's investigation, however, indicates that the issue of market definition may be more complex than proposed by the parties. The function of a cable-TV network or a DTH operation is to provide a connection between broadcasters and viewers. The TV-distributor is therefore active both on the upstream market for the acquisition of rights to content (as a buyer), and on the downstream market for the provision of TV services to individual viewers and/or intermediaries, such as landlords or owners of apartment buildings and operators of small and medium-sized cable-TV networks (SMATV). It may be appropriate to distinguish between the substitutability between cable and DTH on, on the one hand, the upstream market for acquisition of content, and, on the other hand, the downstream markets for retail and wholesale TV-distribution, despite the competitive link between these upstream and downstream activities.
(270) First, for the downstream market (that is where a cable or DTH operator sells its services to final customers), the parties' views that cable and DTH are separate markets has been contested by third parties. Whereas some technical and commercial differences do exist between these distribution methods, such differences are not necessarily more significant than between, for example, two competing cable-TV operators.
(271) For example, a distinction may be possible between the provision of the infrastructure service as such (meaning the physical connection of the cable structure in the building with, for example, Telia's network) and the transmission of the TV signals. In most cases the owner of the infrastructure will be the same entity as the transmitter of the TV signals. This is, however, not necessarily the case. For example, in SMATV the infrastructure may be owned by a housing association, whereas a third party may, in addition to transmitting the TV signals, also be contractually responsible for operation and maintenance of the cable structure in the building.
(272) Also on the customer side there may or may not be identity between the buyer of infrastructure and content. Such identity normally exists for DTH, where an individual household will install a satellite dish and a decoder and subsequently purchase smart cards (infrastructure) in order to receive a selection of TV signals. However, in cable, the party who contracts with the broadcaster on behalf of the viewer (the infrastructure customer) is normally a building owner, landlord or housing association, which will charge the tenants the cost of this service as part of the rent. In addition, the individual households may, in a similar way as DTH households, purchase the right to view certain TV signals.
(273) A difficulty in separating the infrastructure and transmission services is that the suppliers, to varying degrees, bundle the provision of these two services. Telia, for example, includes a wide selection of "basic tier" channels, which are sold to the owner of the building as a package together with the infrastructure services (connecting the building's internal network to that of Telia, and, possibly, maintaining and operating the building's internal network). This means that Telia's cable networks have a disproportionately low number of individual households as direct customers. Other cable operators offer a narrower "basic tier" and, consequently, have a proportionally higher number of individual households as direct customers.
(274) Some third parties have submitted that the mode of distribution is unimportant, since both DTH and cable will give the viewer access to more or less the same range of TV channels (although some channels are only available from one of the two DTH operators). In this respect it may also be noted that customers appear to pay more or less the same price for comparable cable and DTH services. For example, individual households in Sweden pay the same price (SEK 199) for comparable packages of TV channels from Telia's cable operation (or any of its competitors) and Telenor's DTH operation. The only competing DTH package (Viasat) is about 10 % more expensive. Third parties have also submitted examples of individual households in cabled areas (including those operated by Telia) which have invested in DTH reception equipment, and stated that this development may be expected to increase with the introduction of digital services, where the available capacity for TV channels, as well as other services such as Internet and telephony could make the cable and DTH offerings less homogeneous, thereby increasing the incentive for customers to switch.
(275) In the near future, in the abovementioned context of convergence, Newco would, if the proposed concentration was approved, offer a package of services such as voice, fast Internet access, digital pay-TV and digital interactive services. These services will naturally lead Newco to have an increasingly higher number of individual contractual relations directly with households which would complement the current collective contracts between Telia and landlords/building owners. As with analogue decoders, landlords will not accept responsibility for the payment by individual users for their use of digital decoders (Internet, interactive services, pay-TV, pay-per-view TV). These services will therefore necessitate direct individual contracts between Newco and the users. This, however, does not mean that the advantages that Telia has drawn from the landlord contracts will disappear. On the contrary, Newco will be in a position to use this collective bargaining model to significantly reduce the time and effort needed to switch over to the new digital multimarket environment, and its ability to bundle various services will be a key factor in its ability to win such contracts(231).
(276) The alleged distinction between cable and DTH is therefore likely, in due course, to become less relevant in the new digital environment. First, as stated above, the trend in the relevant geographic markets will be towards an increasingly similar competitive structure, in the sense that all retail TV-distributors will have individual subscription agreements with their viewers (which, as already indicated is needed for the digital decoders). Landlords will no longer act as the sole representative of the majority of viewers, and will consequently play a less important role in the distribution chain. Both cable and DTH will be distributed via individual contracts direct with viewers. Second, it is clear that customers will assess the new digital offerings by their ability to supply an attractive and broad range of services. Most customers are unlikely to have any strong preference for any particular technical means of delivering the new digital services, whether by DTH, broadband cable or cable/satellite in combination with a traditional copper telecommunications network as a return path for the interactive services. However, Newco's control over all of those delivery forms, would significantly reduce competition at the level of local access to viewers.
(277) Second, in the upstream markets (that is to say where a cable or DTH distributor acquires the right to distribute content) it may be appropriate to distinguish the buying of rights to transmit TV channels from the buying of individual content, such as individual films, sport and other events. Another potential distinction is between content in the form of advertising-financed TV channels and TV channels financed by low subscription fees (so called "mini-pay" channels), where the cable or DTH distributor acts as a wholesaler and normally bundles several channels into a bouquet on the one hand, and premium pay-TV channels on the other. In practice many TV channels in the first category have a revenue-base, which is a mix of advertising income and subscription fees. Moreover, both types of TV channels share a common interest in achieving as wide a distribution as possible, as this, with minor incremental cost, will increase the revenues from advertising (which is directly linked to the number of connected households), and/or subscription fees. For this reason, most such broadcasters will seek to be included in the "basic tier" offering of any DTH, cable or SMATV operator, regardless whether the viewers of that operator will need a decoder to receive the "basic tier" offering. Broadcasters of premium pay-TV channels (mainly films and sport) generate their revenue from relatively high subscription fees paid by the viewer to access that specific channel, and are never included in the "basic tier". The cable or DTH distributor will often act as an agent for the premium channel, and the latter will normally set the prices. Broadcasters of premium pay-TV channels focus mainly on households that have already invested in decoders or other means to receive scrambled TV signals.
(278) Several broadcasters have indicated that they regard cable, DTH and SMATV as competing distribution channels. The reason for this view, notwithstanding their wish to be as widely distributed as possible, is that although the economic model on which their broadcasting activities is build require a certain minimum degree of distribution in any given area, it is not necessary for them, in order to maintain a profitable business case, to achieve 100 % penetration. According to these broadcasters, this fact has, prior to the notified concentration, allowed broadcasters a certain degree of flexibility in their negotiations with various distributors, which would disappear with the emergence of Newco.
(279) In conclusion, there are a number of aspects which indicates that a certain degree of substitutability may exist between the cable, DTH and SMATV activities of Telia, Telenor and Canal Digital, both as far as the downstream retail TV-distribution and the upstream content buying is concerned. However, for the reasons set out below, the question of market definition is not decisive for the assessment of the proposed concentration. If the parties' contention, as to the lack of horizontal overlap, were to be accepted the proposed concentration would, on the downstream distribution markets, strengthen Telia's dominant position in the Swedish market for cable-TV. If any of the alternative market definitions were to be adopted (combined national markets for cable-TV and DTH, or Scandinavian or Nordic markets), the proposed concentration would still create or strengthen a dominant position. Equally, on the content buying market, the notified operation would create a dominant position regardless of whether the parties' cable, DTH and SMATV activities are considered to be on the same or on neighbouring markets (see below).
Wholesaling of rights to content
(280) The parties have stated that they, as well as their main competitors in DTH and cable distribution, contract directly with the broadcasters. The market for wholesaling of rights to content is therefore, at present, essentially limited to sales to small and independent cable operators (SMATV). Telenor and, to a lesser extent, Telia, are active in this market, which is linked to the markets for buying of content, in the sense that a distributors' right to use certain content for its own distribution activities and for its wholesaling activities is normally regulated in a single agreement with the broadcaster.
Technology for technical services relating to pay-TV
(281) Technical services relating to pay-TV includes services such as encryption and decryption of TV signals, handling conditional access systems, marketing of decoders and smart cards. Telenor has developed a proprietary conditional access system for the scrambling and unscrambling of TV signals (Conax). Some of the technical functions are highly sensitive from a commercial viewpoint, as they allow access to customer data and details of agreements with broadcasters. Both parties provide these services "in-house". In addition, they provide some of these services to competing cable-TV operators.
B. Relevant geographic markets
(282) For the TV-distribution markets, the parties have, largely relying on past Commission decisions (see above), argued that the markets for provision of DTH distribution, cable television, content buying, wholesaling of rights to content and technical services relating to pay-TV are national. They have also stressed that these activities need the support of national service organisations, that legal regimes differ and that broadcasters normally sell the right to content on a national basis.
(283) In their Reply to the Statement pursuant to Article 18 of the Merger Regulation ("the Reply"), the parties have stated that the market for satellite transponder capacity is European, and that other satellite companies (Eutelsat and Astra) provides a service which is substitutable to those of Telenor.
(284) The parties' contention in the Reply is however contradicted by the facts relating to Telia's lease of transponder capacity from NSAB. At the time when Telia made this strategic investment, one of the alternatives considered was to lease capacity from Eutelsat, where Telia, as the Swedish telecoms incumbent, is a shareholder. Telia, however, rejected the Eutelsat alternative, despite the fact that the required capacity was available from Eutelsat for roughly half the price offered by NSAB (and also that the shareholding in Eutelsat would have provided better possibilities to influence the strategic decisions of the satellite provider). The reason why Telia, despite these advantages, decided not to lease capacity on Eutelsat is that it does not provide an attractive footprint for transmissions aimed at the Nordic countries, and that almost all potential viewers in that area have their dishes directed to the Telenor and NSAB satellites. Consequently, from a broadcaster's perspective, the use of any other satellite position for the purposes of broadcasting to Nordic viewers would involve very significant costs related to convincing a sufficient proportion of viewers to either stop viewing all the Nordic interest programming offered from Telenor's satellites (and that of NSAB), or to invest in a second dish. From a viewer's perspective, it is not possible to simply turn the dish towards Eutelsat or Astra, as there is no Nordic broadcaster transmitting from those satellites. The parties' contention in their Reply, as to the European market for satellite transponder capacity, can therefore not be accepted. For these reasons, the Commission maintains the view expressed in the NSD case, that the market for satellite transponder capacity is Nordic.
(285) A number of third parties have suggested that the markets for retail TV-distribution and content buying should be seen as Scandinavian (that is, Norway, Sweden and Denmark) or Nordic (that is, the three countries mentioned plus Finland). The main reasons given for this viewpoint relate to the wider-than-national nature of the parties' upstream activities. First, there is general agreement that satellite transponder capacity is provided on a Scandinavian or Nordic basis. Second, contrary to the view of the parties, most third parties have submitted that contracts for the right to distribute content (commercial channels and pay-TV content, such as films and sports rights) are often concluded on a Scandinavian or Nordic basis. Cultural and linguistic factors are not considered as significant obstacles to transmitting largely the same material in all Scandinavian countries, for example, all countries share the common tradition of having programmes with subtitles. Moreover, third parties expect Newco to develop further its pan-Scandinavian (or pan-Nordic) purchasing in order to feed all its downstream TV-distribution activities, with the consequence that the conditions of competition will become even more homogeneous. The parties' argument, according to which individual cable-TV customers cannot switch to suppliers from outside their country, is clearly not an obstacle for considering a wider market definition as far as content buying, wholesaling of rights and technology for pay-TV is concerned. For retail TV distribution, the choice of suppliers for customers (in particular cable TV viewers) is currently restricted by the available technical means of access and the broadcasting rights held by the various distributors. However, in view of the transition to digital services, in combination with the trend towards pan-Nordic contracts for distribution rights, it may be appropriate to take a broader (that is Scandinavian or Nordic) view also on this market.
(286) However, for the purposes of this decision it is not necessary to conclude on the exact geographic scope of the market, given that the notified operation would create or strengthen a dominant position at several levels of the distribution chain for the provision of television services, regardless of whether this is assessed on a national, Scandinavian or Nordic basis (see below).
C. Competitive assessment
Satellite capacity
(287) Telenor is the largest provider of satellite transponder capacity in the Nordic area. Its Thor and Intelsat(232) satellites at 1° west have a total of 48 transponders. In their Reply the parties have stated that all of Telenor's transponders are suited for the transmission of television signals. However, only 34 of Telenor's transponders are BSS transponders, which for technical reasons are suited for transmission of DTH television signals. The 14 remaining transponders (the Intelsat transponders) can be used, for example, to feed cable-TV networks, but are not suited for DTH transmissions. All of Telenor's satellite transponders have a "Nordic footprint". Furthermore, Telenor has concrete plans to increase its capacity even further in the near future, through the launch of another satellite. Telenor and Canal Digital have invested significant amounts in its technical facilities, and have established the only Nordic platform for the transmission of digital TV signals.
(288) Telia does not own any satellite capacity but has been, since 1997, one of the most significant customers of NSAB, Telenor's only competitor with a specific "Nordic footprint". In their Reply, the parties have argued that Telia is not a strategic customer for NSAB. However, this argument is flawed, since it relies on the contention that Telia will not use its leased transponders to develop any services that could induce other customers to want to be on the same satellite as Telia. As will be explained later, to the extent that this contention is correct, this is one of the consequences of the proposed concentration. Therefore, the fact remains that Telia, at the time when it entered into a [long-term](233) lease for [...](234) NSAB transponders, had concrete plans to develop a DTH business in competition with Telenor, and therefore leased BSS transponders, which, as explained above, are specifically adapted for the transmission of DTH signals. The leasing period corresponds to the expected lifetime of the satellite.
(289) At the time of the leasing agreement, these transponders represented [...](235) of NSAB's capacity, and from NSAB's viewpoint it was clear that Telia intended to develop a competing DTH service. The contention that Telia is not a customer of strategic importance for NSAB can therefore not be accepted.
(290) Apart from the investment in the lease of satellite transponders (the annual cost of which represents a significant proportion of Telia's cable-TV turnover), Telia has also made a strategic investment in uplinking facilities in Stockholm. From a technical viewpoint Telia would therefore, in the absence of the proposed concentration, be in a good position to commence distribution of television and other signals direct to individual customers via satellite (see below).
(291) Following the concentration, Newco would control 34 to [...](236) BSS transponders (depending on whether the NSAB transponders leased by Telia are included or not) out of a total of 51 BSS transponders at 1° west and 5° east. Thus, Newco would control [60 % to 80 %](237) of the total number of transponders suitable for DTH television broadcasting to the Nordic area. As stated above, Telenor is of the view that [...](238) of its [...](239) transponders are suitable for television broadcasting to the Nordic area. If all of those [...](240) transponders were to be included in the calculation, Newco's share of the available transponder capacity for television broadcasting would increase to [...](241) out of [...](242) (again depending on whether the NSAB transponders leased by Telia are included or not). This would represent [70 % to 80 %](243) of the total capacity available.
(292) In their Reply, the parties contend that the number of transponders available to NSAB is higher than indicated above. This is incorrect. NSAB currently has two satellites at its 5° east orbital position (Sirius I and Sirius II). The former has four effective BSS transponders. The latter has 32 transponders. However, out of these 32 transponders, six are only suitable for communication purposes (not for television broadcasting). Thirteen of the remaining 26 transponders are not owned by NSAB. These transponders are owned by GEAmericom, and are not directed towards the Nordic region(244). Consequently, the total number of transponders for television broadcasting that is currently available to NSAB is 17 (or 11 if the transponders leased by Telia are deducted), as indicated in the above percentage figures.
(293) The parties are also of the opinion that NSABs transponders should be increased with the number of transponders available on the Sirius III satellite, which is owned by NSAB. This satellite is currently leased to Astra, and not used for Nordic broadcasting. However, when this lease arrangement ends in October 1999, the satellite is planned to be moved to NSAB's own position at 5° east. If such a move is done, Sirius III would replace Sirius I (which, due to the fact that both satellites transmit on the same frequencies, cannot be used simultaneously). The total number of transponders available to NSAB would then be 27 (or 21 if the transponders leased by Telia are deducted), and not 31 as claimed by the parties in their Reply.
(294) As with any future occurrence there is a certain degree of uncertainty as to whether or not Sirius III will actually be moved to 5° east and kept in this position. One of the factors influencing this decision will be the impact of the proposed concentration on NSAB's ability to attract broadcasters. However, even if Sirius III is positioned at 5° east, the parties have not provided convincing arguments as to why this would improve the competitive position of NSAB. First, even in the present analogue situation (where one transponder is needed to transmit one TV channel), Telenor as well as NSAB have significant spare capacity. In the digital environment, the existing capacity will be multiplied, since one transponder can be used to broadcast six to eight TV channels. This will mean that the currently available Telenor satellites, from a technical viewpoint, will be able to transmit all current analogue signals in the digital format. The same is true for NSAB. It is therefore not clear, as the parties argue, in what sense NSAB's market position could be strengthened by the addition of more transponder capacity at its satellite position. Second, as mentioned above, Telenor also has plans to add another satellite at 1° west (Thor IV). According to the notification, Thor IV is planned to be launched in 2002(245). Thus, any potential advantage flowing from the addition of new capacity is likely to be replicated or exceeded by Telenor within the near future. Third, as will be explained below, there are strong indications that the proposed concentration, in its notified form, would have significantly weakened the competitive position of NSAB. The question of NSAB's available capacity is therefore largely irrelevant for this assessment.
(295) NSAB's owners are SSC, Teracom (37,5 % each), and Tele Denmark (25 %). NSAB is not vertically integrated into any of the vertically related activities performed by Telia and Telenor. The investigation has indicated that Newco, in view of its position as the only vertically integrated provider of satellite transponders with a Nordic footprint, would be the only supplier able to offer broadcasters a bundled service consisting of satellite infrastructure and retail distribution (cable and DTH). Following the concentration, the number of viewers connected to Newco's retail distribution would have increased significantly, and would have covered up to 70 % of all TV households (see below). Given that Telia would have contribute the largest cable-TV network in Sweden to Newco (with approximately 1,3 million connected homes), this would have considerably strengthened Newco's ability to convince buyers of satellite transponder capacity not to purchase such capacity from its only competitor, NSAB.
(296) Telenor has already started an aggressive strategy to induce broadcasters to move from NSAB to the Telenor satellites (and it is alleged that transponder capacity has been offered free of charge to at least one of NSAB's customers(246)). In their Reply, the parties have contested this, and stated that hey have not offered free capacity, but a penetration-based contract, according to which the payment for the satellite capacity is based on the number of viewers that the broadcaster will reach. It is difficult for the Commission to take any firm view on these arguments before the National Competition Authority has reached a decision on this dispute. However, the relevant conclusion from this example confirms that broadcasters can be persuaded to choose their satellite provider on the basis of contracts linked to the achieved penetration. Following the concentration, Newco would therefore have been in a significantly stronger position than NSAB, which, due to its lack of downstream integration, will not be able to guarantee access to any cable or DTH viewers. Moreover, the concentration would not only have increased Newco's ability to offer broadcasters access to retail distribution, it would simultaneously have decreased the ability of NSAB to do so, as it no longer may have found Telia's cable-TV unit to be as interested in carrying services provided through NSAB.
(297) It further appears that third parties now doubt the viability of NSAB as a competitor if the proposed transaction were to proceed in its notified form. It could be argued that this view was shared by Telenor, as it, shortly before the notified transaction was announced, choose not to continue the previously existing cooperation with NSAB in the promotion of the "Nordenparabolen" dish. This analogue dish is capable of simultaneously receiving the signals from Telenor and NSAB. Had Telenor believed that a significant number of broadcasters would remain on NSAB after the completion of the notified operation, it would have been logical to continue this cooperation. In their Reply, the parties have stated that Telenor's agreement with NSAB for the promotion of the "Nordenparabolen" dish expired in 1998, and that the company decided that it was in its commercial interest not to pursue this cooperation, but that it nevertheless still promotes the "Nordenparabolen" dish. This argument, however, fails to address the key-issue, which is that the actions of Telenor confirms that it regards itself as likely to gain if viewers use dishes directed at only one of the two Nordic satellite positions(247). In any event, Telenor's decision to end the "Nordenparabolen" cooperation will no doubt have an impact on the competitive position of NSAB, given that a significant number of viewers in the Nordic region will not be able to receive signals from its satellites.
(298) The investigation therefore shows that the notified concentration, would have enabled Newco to significantly reduce or even eliminate the existing competition from NSAB. This would not only have created a dominant position on the market for the provision of satellite transponder capacity, but would also have considerable strengthened Newco's control over all levels of the TV-distribution chain. It would have put Newco in a gatekeeper function, where any company wishing to participate at any level of the distribution chain would have to contract for transponder capacity with Newco.
(299) The parties have argued, first that Newco will not become a "bottle-neck provider" of satellite transponder capacity in the Nordic region. They base this primarily on the existence of a competing provider of such services, NSAB, and the key-role of NetCom/MTG(248) as a buyer of transponder capacity and provider of broadcasting services for its own TV-distribution interests. NetCom/MTG is active as a broadcaster through, inter alia, TV3 and TV1000, which are distributed in all Scandinavian countries. It is also, through Kabelvision, active in cable-TV in Sweden, and, through Viasat, in analogue DTH distribution in all Scandinavian countries. It has no own interests in any satellite operation, but leases capacity from Telenor and NSAB.
(300) The parties' argument concerning the role of Netcom/MTG as a buyer of transponder capacity, however, fails to fully take into account the medium- to long-term effects of the proposed concentration. It is true that Netcom/MTG has certain competitive strengths, including the brand names of its TV channels. However, these strengths should not be overstated. First, Netcom/MTG acquires most of the content for its channels from third parties, including American and other production studios and sports organisers. As such the company is to a certain extent vulnerable, given that most viewers will be loyal to specific content (which can be acquired by another broadcaster in the future), rather than to the channel brand. This means that Netcom/MTG is dependent on maintaining its current distribution level (which is the basis for its advertising and other revenues) in order to finance the continued acquisition of attractive content and thereby maintain the loyalty of its viewers. In their Reply, the parties have argued that Netcom/MTG has already concluded a number of agreements, some of which are exclusive, with various American and other production studios and sports organisers. This argument relates mainly to the present position of Netcom/MTG on the downstream markets for retail distribution, which will be analysed below. For the purposes of assessing the concentration's impact on the satellite transponder market, it is sufficient to conclude the majority of the indicated contracts are due to expire between 1999 and 2003, and therefore, regardless the level of protection that Netcom/MTG currently has on the basis of its concluded agreements, these agreements are of limited duration. One of the "major sports deals" relied on by the parties to show the alleged strong position of Netcom/MTG concerned Italian league football. In their Reply, the parties indicated that Netcom/MTG held these rights until 2001. However, on 1 September 1999, it was announced that Canal Digital had acquired the Nordic rights to Italian league football, and would commence transmissions on 12 September 1999. Therefore, since Canal Digital apparently is able to outbid Netcom/MTG for these "major sports deals", it is not possible to regard the existence of these supply agreements as a permanent feature of the market, when assessing whether Netcom/MTG will have the ability and incentive to support NSAB as an alternative satellite provider to Newco.
(301) Second, the relative strength of Netcom/MTG compared to Newco can be illustrated by the fact that Netcom/MTG, even prior to the proposed concentration, has been forced to accept a very disadvantageous distribution agreement with Telia. In fact, Netcom/MTG has to pay Telia to have its most popular channel, TV3, distributed in Telia's cable network. In their Reply, the parties have sought to challenge this conclusion by stating that TV3 is not the only broadcaster who pays Telia for distribution in its cable-TV network. However, this argument is flawed. Even if Telia, as a dominant cable-TV operator, has been able to impose disadvantageous terms on all broadcasters, this does not in any way weaken the conclusion that Netcom/MTG is dependent on Telia for distribution, and that this dependence would have increased after the creation of Newco.
(302) In view of these circumstances, the parties' argument that Netcom/MTG would be able to balance Newco's apparent strengths in the provision of satellite transponder capacity (or on any other level of the distribution chain) appears doubtful.
(303) However, even if it, despite the above, were to be accepted that Netcom/MTG, as the main competitor of Newco may have an incentive to use the NSAB satellites, so as not to become entirely dependent on Newco, it would be increasingly difficult for it to continue to support NSAB if most other broadcasters were to move to Newco's satellites. First, the fewer customers that NSAB will have, the higher the prices it will have to charge to cover its operating costs, including future investments in digital capacity. It is not reasonable to assume, as the parties do in their Reply, that NSAB will reduce its prices if its spare capacity were to increase as broadcasters moved to Newco. Whereas it is true that investments in satellites to a large extent represent sunken costs, it cannot be assumed that NSAB would continue to operate its Nordic broadcasting business, unless a reasonable return on the invested capital can be generated through the lease of satellite capacity. If, following the concentration, NSAB could no longer attract Nordic broadcasters, it is more likely to sell or lease the satellites to another operator, who would move them to another orbital position, than, as the parties suggest, to assume that it would continue a loss-making operation. Nor is it correct to state, as the parties have done in their Reply that NSAB is not dependent on revenues from its Nordic broadcasting activities, since such revenues make up a large majority of NSAB's total revenues.
(304) The situation for Newco would be the reverse, namely that the more customers it could attract by offering vertically bundled services, as illustrated by the above mentioned penetration based contracts, the lower the prices it would have to charge. Newco would therefore have had an important cost advantage compared to NSAB. Second, Netcom/MTG would in its capacity as a broadcaster of commercial and pay-TV have become even more dependent on Newco for distribution than it has been so far on either Telia or Telenor. This would have further reduced Netcom/MTG's ability to negate the market power of Newco by supporting NSAB. Third, NSAB is for technical reasons, not able to reach a significant number of viewers, primarily in Norway and Denmark, whose reception equipment is directed only towards Telenor's satellite position, and therefore cannot receive signals from NSAB. Any broadcaster, including Netcom/MTG, would therefore lose a significant proportion of their DTH viewers if it were not carried on Telenor's satellites.
(305) In their Reply, the parties have indicated that this will no longer be the case in the digital environment, since these customers will have to buy a new decoder and, usually, a new microwave head.
(306) Whereas there is general agreement that all viewers need a new decoder to receive digital signals, this clearly has no impact on the possibility to reach DTH customers who are tuned in only to Telenor's satellite position. Concerning the need to exchange the microwave head on the dish, the parties have justified their view that this will be necessary by stating that "a new LNB (microwave head) is usually necessary because old LNBs are not compatible with new analogue and digital decoders". The parties have not explained why, in their view, it would be relevant to assess the requirements for the transition to digital by comparing the need to replace old analogue microwave heads, that apparently are incompatible also with new analogue decoders.
(307) Third parties do not agree that it is technically necessary for the switch to digital to replace existing dishes or microwave heads. Furthermore, from a commercial viewpoint, Canal Digital and Telia have both started to operate digital services and are offering subsidised prices to customers for proprietary decoders that will not accept Netcom/MTG's smart cards. Therefore, the argument put forward by the parties at the oral hearing, that Netcom/MTG would be able to "piggy-back" on digital technology investments made by the parties, is not supported by the facts. In view of the above, the parties' contention that the move to digital services will reduce Netcom/MTG's dependency on Newco's satellite services cannot be accepted. Consequently, neither can the parties second contention be accepted - Netcom/MTG would not have been able to provide support to NSAB, thereby removing the abovementioned negative effects of the concentration for NSAB's competitive position.
(308) Finally, in their Reply, the parties argue that they face the threat of new entry from Intelsat. As stated above, Telenor currently leases and operates all broadcasting capacity at the Intelsat satellite on 1° west. The parties have not provided any explanation as to why it would not be reasonable to assume that Telenor would also be involved also in any further capacity that Intelsat may position at 1° west. The impression that any new capacity introduced by Intelsat would be more likely to cooperate with Telenor is strengthened by the fact that Telenor apparently have access to confidential business plans of Intelsat. Moreover, the parties have not been able to provide any reason as to why Intelsat, if it were to enter the market independently of Telenor, would not face all the difficulties to attract broadcasters that have been described above in relation to NSAB. If anything, Intelsat's difficulties would be even greater, given that it has no market position on which to build such an entry. The Commission cannot therefore accept that there is any indication that Newco's position in the market for satellite transponder capacity would be constrained by new entry from Intelsat.
(309) In view of the above, it must be concluded that the proposed concentration, in its notified form, raised significant concerns relating to the provision of satellite transponder capacity. Moreover, the effects of Newco's position in this area would also have produced competitive concerns on the downstream markets (see below). It therefore has to be concluded that the notified concentration would have created a dominant position as a result of which effective competition would have been significantly impeded in the Nordic market for the provision of satellite transponder capacity.
Retail TV-distribution (to individual households)
(310) As indicated above, the parties consider that the relevant market for retail TV-distribution should be assessed nationally, on the basis of separate markets for cable-TV and DTH. On the other hand, there are a number of indications that the market should be seen in a wider context, both from a product and geographical viewpoint. However, as it is the Commission's view that the proposed concentration would create or strengthen a dominant position, regardless of which of these approaches is followed, this section will assess the impact of the proposed concentration on the level proposed by the parties, as well as on a combined market for cable-TV and DTH (nationally and Scandinavian/Nordic).
(i) National markets for cable-TV and DTH (taken separately)
A. Cable-TV
(311) In Norway, Telenor owns the second largest cable-TV network, which connects approximately [30 % to 40 %](249) of all Norwegian cable-TV households. Similarly, Telia owns the second largest cable-TV network in Denmark. According to the notification, Telia has a share of [10 % to 20 %](250) of all connected households in Denmark ([30 % to 40 %](251) if cable and SMATV are combined). Tele Denmark's share is indicated as [80 % to 90 %](252) in cable-TV and [50 % to 60 %](253) if SMATV is included. On the hypothesis that the relevant market for cable-TV distribution is national, it is not necessary for the purposes of this decision to consider the effects of the proposed concentration in Norway and Denmark.
(312) Telia owns the largest cable-TV network in Sweden. In 1998, 1250000 households were connected to its network ([50 % to 60 %](254) of all Swedish cable-TV households)(255). In addition, 50000 SMATV households were connected to Telia's network. The number of households connected to Telia's network has grown over the last four years. Of the competing operators Kabelvision (the Netcom/MTG group) has [10 % to 20 %](257), Stjärn TV has [10 % to 20 %](258) and Sweden on Line [0 % to 10 %](259).
(313) In the notification, the parties expressed the opinion that market shares should be measured by pay-TV revenues instead of by the number of connected households. On that basis, and if pay-TV revenue, as proposed by the parties, were to be defined as revenues paid by individual households for pay-TV services, Telia's market share in Sweden has been stated to be [20 % to 30 %](260) Kabelvision would then have [30 % to 40 %](261), Stjärn TV [20 % to 30 %](262) and Sweden on Line [10 % to 20 %](263).
(314) The large variations resulting from the two methods of calculation can be explained by the commercial methods employed by Telia compared to its competitors. Telia normally sells a bundled package of infrastructure services and a relatively large number of TV channels as a "free basic tier" to landlords and other building owners. Telia does not consider the revenues from these sales as pay-TV revenues. Instead, it includes only revenues resulting from individual households that pay for receiving additional channels on top of the basic tier. Kabelvision and the other cable operators have a different commercial strategy. They provide only a relatively narrow basic tier (mainly consisting of the "must-carry" terrestrial channels), and therefore sell most of their services as "pay-TV" according to the parties' definition. The weaknesses of this definition are evident, as it effectively means that all Telia customers who subscribe only to the "basic tier" will generate zero turnover according to the proposed market definition. However, if another customer subscribes to exactly the same channels in one of the competing cable operator's networks, most of the generated turnover would fall within the parties' definition. More than [45 % to 55 %](264) of Telia's revenues from cable-TV comes from landlords and building owners. It is therefore remarkable that the parties have sought to exclude this part of Telia's turnover from their defined "pay-TV" market, in particular, as they have done this without taking the excluded turnover into consideration at all. On the basis of its most recently submitted figures, Telia's market share would be [55 % to 65 %](265) greater than that of Kabelvision, if total revenues were used as a basis for the calculation.
(315) More importantly, the investigation has shown that Telia, as well as its competitors, normally states its market significance by reference to connected households, rather than "pay-TV revenues" (see, for example, Telia's 1997 annual report). Moreover, in cases of acquisitions of cable networks, the valuation is generally made on the basis of connected households. Digitalisation is widely expected to further increase the importance of the size of the cable-TV network, inter alia, as it will allow to spread the considerable investments over a larger number of customers. In view of the above, the Commission concludes that the relevant measurement for the market power of the parties is the number of connected households.
(316) The parties have submitted that there are no geographical concession areas for the provision of cable-TV services in Sweden. This means that in the analogue environment, the single most important factor for a cable-TV operator to be competitive is the ability so supply sought-after channels and programming, at prices which are attractive to landlords and/or individual households, depending on the chosen distribution methodology. As has been indicated above, Telia has already prior to the proposed concentration, on the basis of its control over more than [55 % to 65 %](266) of the market, been able to achieve significantly better conditions from broadcasters than other Swedish cable-TV operators (including the terms negotiated for the distribution of TV3, which the parties consider to be a "must-carry" channel). This ability to achieve preferential conditions is indicative of Telia's dominant position on the Swedish market for cable-TV services. Furthermore, the growth of Telia's cable-TV business over the last four years confirms that none of the smaller cable-TV operators have been able to significantly challenge this position.
(317) The vertical effects resulting from the proposed concentration would significantly strengthen Telia's dominant position. First, Newco would, as has been explained above, acquire a gate-keeper position for the provision of satellite capacity. TV channels that are supplied in a cable-TV network normally reach the cable operator through satellites. This means that Newco will be able to offer broadcasters a bundled service consisting of satellite transmission and access to Telia's cable-TV network. Prior to the concentration, Telia did not have this ability(267). None of the other Swedish cable-TV operators is vertically integrated into satellite services. Following the concentration, Newco would therefore gain a unique ability to attract broadcasters.
(318) Second, as will be explained, Newco would, in its capacity as a buyer of content, become an obligatory partner for any broadcaster wishing to address Swedish (and other Nordic) viewers. From a broadcaster's perspective, the market is not restricted to Swedish cable-TV. Instead broadcasters normally wish to receive as widespread distribution as possible. The investigation has shown that distribution agreements between broadcasters and Nordic cable-TV and DTH operators often include the whole of Scandinavia or the Nordic area and covers rights to cable-TV, SMATV and/or DTH. Under the assumption of separate national markets for cable-TV and DTH, it is therefore clearly relevant that Newco would have significant activities on a number of neighbouring markets, and that it would, in total, control access to almost twice as many Nordic households as Telia did before the concentration. Newco will therefore be in an even stronger position in negotiations with broadcasters that Telia has been so far.
(319) Third, as will be explained below, Newco would be in a position to impose Telenor's proprietary technology as a de facto Nordic standard for TV broadcasting. This would mean that other Swedish cable-TV operators would have to license their encryption technology from their dominant competitor. Therefore, as a consequence of the proposed concentration, a new form of dependency would be created between Telia and the other Swedish cable-TV operators.
(320) In their Reply, the parties have stated that Telia's position as a cable-TV operator in Sweden is contestable, by other existing cable-TV operators, broadband network specialists and even by individual cable-TV customers, who own the intra-building network, and, in the parties' view, could operate these themselves. This contention is not supported by the facts. In their Reply, the parties state that "Telia has not lost a significant number of contracts so far". In fact, as indicated above, the number of households connected to Telia's cable network has grown over the last four years. It must therefore be concluded that the parties have not been able to demonstrate that there is such a likelihood that Telia's current growth trend would be reversed, in particular in view of the competitive advantages resulting from the proposed concentration, so as to allow a finding that Telia's market behaviour is likely to be significantly constrained by the fear of significant loss of customers through any of the indicated means.
(321) In conclusion, the pre-existing dominant position of Telia on the Swedish cable-TV market would be significantly strengthened through the vertical integration into the provision of satellite services, and Newco's strengthened position as a buyer of content. It is likely that these effects would enable Newco to achieve even more preferential distribution agreements than those that Telia has concluded in the past. Consequently, the proposed concentration would further reduce the competitive ability of other Swedish cable-TV operators. Moreover, Newco's position as a provider of technical services, would create a new form of dependency between Telia and the other Swedish cable-TV operators, that would further reduce the ability of the latter to compete effectively with Newco.
(322) The parties have submitted that the ongoing transition from analogue to digital transmission techniques will provide new opportunities for existing and new competitors. In that context it may be noted that Telia has already introduced digital services in its cable-TV network(268). Most of the smaller Swedish cable-TV operators have not so far been able to undertake the significant investments that Telia has made, which are needed to upgrade the cable-TV networks to digital. As was stated above, Telia has adopted a strategy whereby most households connected to its cable network receive a relatively large number of TV channels in the analogue "basic tier", which means that the decoder penetration in the network is low compared to other cable operators. The fact that Newco's cable-TV networks have a low level of (analogue) decoder penetration can be expected to facilitate the introduction of digital decoders, as the viewers will not have to be persuaded to make a second investment. Moreover, the system where Telia contracts with the landlord or building owner, rather than with the individual households directly, can be expected to facilitate the launch of digital services. In their Reply, the parties have contested this by providing an example from the United Kingdom, which in their view indicates that operators with high analogue decoder penetration are in a better position to introduce digital decoders. Whereas that may be true for the United Kingdom, the market conditions appear to be different in the Nordic countries. According to a press-release from Canal Digital(269), only 20 % of its new digital customers had previously had analogue equipment. Telia has not submitted any corresponding figures from the introduction of digital services in its cable-TV network. The parties' contention that they will be at a competitive disadvantage for the introduction of digital services can therefore not be accepted.
(323) Once the cable-TV network is converted into digital, each household will need a digital decoder to receive the signals. Telia offers households who subscribe to its digital services subsidised digital decoders. As will be explained below, Newco would be able impose Telenor's proprietary technology in the digital decoders used in its distribution networks after the concentration has been implemented. The digital decoder will be necessary to introduce value-added services, such as Internet connectivity, video-on-demand (VOD) and near video-on-demand (NVOD) or pay-per-view (PPV). These services should be attractive to viewers. It therefore has to be concluded that there is no reason to believe that the introduction of digital services would weaken the position of Telia on the Swedish cable-TV market. On the contrary, the fact that Newco is in a significantly stronger position as regards the introduction of digital cable-TV services than any of the other Swedish cable-TV operators is likely to constitute another significant competitive advantage, and will further reduce the ability of smaller cable-TV operators to challenge the strengthened dominant position of Newco.
(324) In conclusion, as has been demonstrated, the proposed concentration would, if the parties' proposed market definition were to be accepted, strengthen Telia's dominant position on the Swedish market for cable-TV services.
B. DTH distribution
(325) Telenor (Canal Digital) is one of the two existing analogue DTH operators in Sweden (and in the Nordic region in general). The other analogue DTH operator is Viasat (the Netcom/MTG group). According to the parties, there are currently about [500 000 to 600 000](270) Swedish households connected to the two analogue DTH providers. The analogue DTH receivers used in Sweden (and in the rest of the Nordic region) normally contains two slots for smart cards. Moreover, as described above, most Swedish DTH households use the "Nordenparabolen" dish, which can receive signals from both 1° west (Telenor) and 5° east (NSAB). In the analogue environment, most DTH households can therefore simultaneously subscribe to both Canal Digital and Viasat (dual users). Tradition market share calculation is therefore difficult and not particularly meaningful. In 1998, Canal Digital's analogue DTH distribution in Sweden reached [60 % to 70 %](271) of all analogue DTH households. Viasat reached [70 % to 80 %](272) of all such households.
(326) Analogue DTH distribution in Sweden (and the other Nordic countries) differ from the cable-TV distribution in one significant respect. Whereas historically, in cable, most TV channels are available in all cable networks, the DTH packages offered by the two DTH operators are less homogeneous, given that some TV channels are available from only one of the two DTH distributors. For Viasat, this is the case for the channels produced by the Netcom/MTG group (the Swedish, Norwegian and Danish TV3 channels, TV1000, etc.), for Canal Digital, this is the case for Canal+ and Kanal5 (and its sister channels in Norway and Denmark). TV3 and Kanal5 are respectively the first and second largest non-terrestrial TV channels in Sweden. Both are advertising-financed commercial channels. Whereas TV3 has a larger viewership share (about [5 % to 15 %](273)), Kanal5 has almost doubled its share over the last years, and now reaches about [0 % to 10 %](274). Premium pay-TV channels is the other category of channels that are exclusively available on Canal Digital (Canal+) and Viasat (TV1000).
(327) As can be seen from the above, the parties are correct in stating that prior to the proposed concentration, Viasat had been relatively more successful in marketing its analogue DTH service. The importance of this should, however, not be overstated. The fact remains that the analogue decoders used by most DTH households are able to receive the signals from both Canal Digital and Viasat. In order to switch supplier these customers need only to insert a new smart card into their decoder. Newco will therefore be able to reach the majority of existing analogue DTH households, and will already from day one have a contractual arrangement with [60 % to 70 %](275) of all such households.
(328) The relevant question is therefore whether the competitive advantages that Newco would gain from the proposed concentration are such that it will be significantly more difficult for Viasat to remain competitive in the DTH market. This assessment must be made in the light of the ongoing transition to digital transmissions. As stated above, Canal Digital is the only provider of digital DTH signals in Sweden (as well as the rest of the Nordic region). This means that the company currently has a 100 % share in this segment of the market. In their Reply, the parties have stated that Viasat could introduce digital DTH services within six months, and that one of the reasons why Viasat has not yet introduced such services is that it wishes to reduce the costs for double illumination (analogue and digital). From a technical point of view, it is not contested that Viasat could introduce digital DTH within a relatively short period of time. However, it is likely that the more significant constraint will be commercial. As the parties have pointed out the cost for double illumination is a significant factor. The fact that Canal Digital has been able to take on these costs can be explained by its vertical integration into Telenor's satellite services. Canal Digital does not, unlike Viasat, have to lease satellite capacity on commercial terms. Moreover, as indicated above, Netcom/MTG would not be able to "piggy-back" on the digital technology investments made by the parties, as the digital decoders that Canal Digital and Telia are providing to their subscribers will not accept smart cards from Netcom/MTG.
(329) In any event, the fact remains that Canal Digital, at least in the short term to medium term, is the only provider able to offer digital services to any new subscriber (or existing analogue DTH subscriber who would like to receive the value-added services available in the digital format). Moreover, Canal Digital has been able to conclude a number of exclusive agreements with broadcasters for digital transmissions. Canal Digital's exclusive rights are more extensive in digital than in analogue. Moreover, for the same reasons as stated above regarding cable-TV, the purchasing power of Newco will be significantly greater than the pre-existing position of Canal Digital and Telenor. Finally, again as stated above in relation to cable-TV, digital transmissions allow the introduction of value-added services, such as high speed Internet downloading, NVOD, VOD and PPV, and Canal Digital will be the only supplier able to offer its customers these services. Consequently Canal Digital is in a strong position to gain additional market share as the existing dual users will convert from analogue to digital services.
(330) This applies also to the SMATV segment, where, in the analogue environment, it has so far not been economically feasible to install value-added services that require relatively expensive upgrading of the infrastructure and the use of a decoder. It has, however, been suggested that digitalisation will allow the introduction of such services at a reasonable cost. Newco could therefore offer SMATV networks a "head-end in the sky", which would give these networks access to services that would otherwise be unavailable to them. Telia is currently using a similar concept to feed television signals into its Danish cable-TV operation from its leased satellite transponders. Apart from the potential revenues of extending this activity, such a strategy would further increase the number of households connected to Newco's distribution system and further increase the buying power of Newco (see recitals 347 and following).
(331) In addition to the abovementioned effects that would strengthen Canal Digital's position in the DTH market, the concentration would remove Telia as a potential competitor in DTH. Prior to the announcement of the proposed concentration, Telia had positioned itself to enter the DTH segment. In 1997, when Telia took the decision to make the investment to enter into a [long-term](276) lease for satellite transponder capacity from NSAB, it had plans to launch DTH distribution activities in competition with Telenor (and Netcom/MTG). Telia has argued that its decision not to go ahead with any DTH activities was adopted independently of the plans to merge with Telenor, and that the concentration therefore does not result in the removal of potential competition. Telia has, without providing any supporting evidence, argued that its abandoning of the DTH plans was due to its inability to convince broadcasters to grant it distribution rights for DTH. Apart from being unsupported by any evidence, this explanation therefore implies that Telia, after several years of contacts with broadcasters, would enter into a massive long-term investment in satellite capacity, without having ascertained that broadcasters could be convinced to provide it with the DTH rights needed to start the business. It is difficult to attach any importance to this explanation.
(332) Moreover, it should be noted that Telia's decision to make the investments to enter the DTH segment was adopted by its top-level management and announced in the 1997 Annual Report. This is in contrast with the alleged "independent" decision not to go ahead with those plans (which essentially made the investment in satellite transponders redundant [...](277) years before the leasing agreement is due to expire). Telia has been unable to provide any supporting evidence to indicate that its top-level management were involved in this decision, much less that it was adopted independently of the plans to merge with Telenor.
(333) In conclusion, as has been demonstrated above, the proposed concentration would, if the parties' proposed market definition were to be accepted, strengthen Canal Digital's position on the Swedish market for DTH services, and remove Telia as a potential competitor. Nevertheless, the Commission considers that Viasat's existing position in the provision of analogue DTH services and the possibility that Viasat might be able to overcome the commercial obstacles involved in establishing a digital transmission business may be seen as a counterweight to the Newco's future market position. However, the Commission considers that the existing evidence clearly supports a finding that Newco, in future negotiations with broadcasters, will be able to credibly claim that it can guarantee access to a majority of (or even all) analogue and digital DTH households. Viasat will not be able to make a similar claim, unless it leases additional satellite capacity from Newco and launches its digital transmissions.
(334) There are thus strong indications that the proposed transaction may lead to the creation of a dominant position on the DTH market, in particular for digital DTH transmissions. In any event, given that the competition concerns on the DTH market are due to the same reasons as those relating to the strengthening of Telia's dominant position on the cable-TV market, this question can be left open, as it would not materially affect the assessment of the notified concentration.
(ii) Combined national market for cable-TV and DTH
(335) Some third parties have suggested that an assessment on a combined level for cable-TV and DTH would be appropriate, in particular in view of the transition from analogue to digital broadcasting technologies. If this were to be accepted, the negative effects of the concentration would be the same as those indicated above. The only difference would be that, under this assumption, the concentration would involve an accretion of market shares, that is the addition of the market share held by Telia in its cable-TV business, and the market share held by Canal Digital in its DTH business. The Commission's view is therefore that such a widening of the market would not materially affect the assessment of the notified operation.
(336) On the basis of figures provided by the parties there are about four times as many cable-TV households as there are DTH households in Sweden. The number of SMATV households is similar to that of DTH. As explained above, one complication in calculating market share figures for DTH is that there is a large number of dual users. If, regardless of this difficulty, market shares are calculated on a combined market for cable, SMATV and DTH distribution, the Swedish market share of Telia and Canal Digital would be about [35 % to 45 %](278) and [5 % to 15 %](279) respectively.
(337) Consequently, Newco's market share would be [45 % to 55 %](280), or twice that of its closest competitor, Netcom/MTG. However, if the fact that, as mentioned above, Canal Digital is able to address all Swedish analogue DTH viewers is taken into account, it can be concluded that Newco would have direct assess to households representing about [55 % to 65 %](281) of the total number of cable, SMATV and DTH households.
(338) If the market was to be assessed at this level Newco would still derive all the above indicated competitive advantages from the proposed concentration, meaning the combination of Newco's main Swedish distribution activity (Telia's cable-TV network) with Telenor's satellite activities; Newco's position as a buyer of content would, for the reasons explained above, be significantly stronger than that of either Telia or Canal Digital, and Newco's position as a provider of technical services would still create a new form of dependency between Newco and the other Swedish cable-TV operators. Moreover, Newco would still be in a significantly stronger position for the transition from analogue to digital services.
(339) It therefore has to be concluded that also under these assumptions, the proposed concentration would create or strengthen a dominant position.
(iii) Combined Scandinavian/Nordic market for cable-TV and DTH
(340) Some third parties have suggested that an assessment on a Scandinavian level (or, possibly even Nordic level) may be appropriate. Again, the Commission's view is that such a widening of the market would not materially affect the assessment. Measured on the basis of a Scandinavian market, the above indicated position of Canal Digital and Viasat remains largely unchanged in DTH, as the market situation is similar across the Nordic countries, in that most households are able to receive analogue signals from both Canal Digital and Viasat. The available figures indicate that the current market share balance between the two providers is similar to the Swedish situation as far as Denmark is concerned, whereas in Norway and Finland the situation is reversed. For cable-TV, Newco would combine the largest network in Sweden with the second largest in Denmark and Norway.
(341) For the purposes of calculating market shares the same complication applies regarding DTH (dual users). In addition, there are various available sources for the total size of the market(282). If, regardless of these methodological difficulties the parties figures are used as a basis for the calculation of market shares for a combined Scandinavian market for cable (SMATV and DTH distribution, the market share of Telia and Telenor/Canal Digital would be about [25 % to 35 %](283) and [15 % to 25 %](284) respectively. Consequently, Newco's market share would be [45 % to 55 %](285), or more than twice that of its closest competitor, Netcom/MTG, and four times or more than that of any other competitor(286).
(342) In their Reply, the parties have tried to contest these figures by quoting from the Annual Report of MTG, where it is indicated that MTG offers broadcasters connection to 1,9 million Nordic households. This figure, however, includes a significant proportion of wholesale customers, and is therefore not comparable with the figures indicated above. To make the above figures comparable with those relied on by the parties in their Reply, the wholesaling customers of Telenor would therefore have to be added. In the Scandinavian region, Telenor supplies [6 700 000](288) SMATV viewers on a wholesale basis. This represents [65 % to 75 %](289) of the total number of such viewers. Newco's share of all retail and wholesale to DTH, cable-TV and SMATV households in Scandinavia would then be [60 % to 70 %](290) (or [50 % to 60 %](291) on the Nordic level). This would still remain twice that of Netcom/MTG.
(343) It should also be noted that the parties' market shares would be even higher if the fact that approximately [85 % to 95 %](292) of all Scandinavian DTH customers will be able to receive analogue DTH broadcasts from Telenor's satellites, without changing their equipment (or even moving their dish) was taken into account. This means that the number of directly addressable households of Newco would be higher than indicated above. On this basis, Newco's market share would increase further to [70 % to 80 %](293) of all DTH, cable-TV and SMATV households in Scandinavia (or [60 % to 70 %](294) on the Nordic level).
(344) In addition to reaching at least twice as many households as its closest competitor, Newco would also, if the market were to be assessed at the Scandinavian or Nordic level, derive all the above competitive advantages from the proposed concentration, namely the combination of Telia's Swedish and Danish cable-TV networks with Telenor's satellite activities; Newco's position as a buyer of content would be significantly stronger than that of either Telia or Telenor/Canal Digital, and Newco's position as a provider of technical services would still create a new form of dependency between Newco and cable-TV operators competing with Telia. Moreover, Newco would still be in a significantly stronger position for the transition from analogue to digital services.
(345) It therefore has to be concluded that also under this last assumption, the proposed concentration would create a dominant position.
(iv) Overall conclusion on retail TV distribution to individual households
(346) In conclusion, according to information submitted to the Commission, Newco would, on the basis of the parties' proposed market definition, control access to more than [55 % to 65 %](295) of all cable-TV households in Sweden. The same would remain true if the market were to be assessed on a combined Swedish market for cable-TV, DTH and SMATV. Even if the markets were to be assessed on a Scandinavian or Nordic basis, Newco would control access to [45 % to 55 %](296) or more of all households. Thus, regardless of the exact market definition, the combination of the parties' distribution activities would give Newco a volume of distribution that exceeds, by far, the position of any of its existing competitors. For the above indicated reasons, the Commission has come to the conclusion that this, in combination with the vertical effects relating to the integration of Telia with Telenor's above described satellite activities, Newco's strengthened position as a buyer of content and provider of technical services, would create or strengthen a dominant position on the relevant market for retail TV distribution.
Content buying
(347) The parties are of the view that neither of them is significantly active as a buyer of content, since their activities are limited to packaging and distribution of TV channels. The investigation has however shown that this statement is true only in respect of premium pay-TV content (mainly films and sports rights), where the parties so far have been relatively minor buyers (although at least Telia has acquired both film and sports rights, and has recently launched a specific golf channel in its cable network). Telenor is, nevertheless, via its interest in Canal Digital, linked to Canal+, which is one of the world's largest buyers of such content. Canal Digital is active, inter alia, in the distribution of premium pay-TV content. It has, for example, contracted for the Scandinavian rights to a number of important Hollywood studios (including Paramount, MGM and Fox), as well as for premium sports rights, such as English premier league football and NBA basketball. As mentioned above, on 1 September 1999, Canal Digital acquired exclusive Nordic rights to Italian league football (which previously were held by Netcom/MTG). These rights have been acquired by Canal+, which is also responsible for the acquisition of PPV-rights for Canal Digital.
(348) Furthermore, it has been indicated that Newco could expand its content-buying activities in the field of premium films and sports rights, by acquiring the Nordic rights to, for example, Hollywood films for all relevant existing "windows" (PPV, VOD, premium and second pay, free and basic pay). Newco would have an incentive to adopt such a strategy in order to attract customers to its PPV, NVOD and VOD services as it expands its digital distribution (cable and DTH). The premium and second pay rights could be used by Canal+, which is exclusively distributed by Canal Digital in the Nordic area. Finally, it could wholesale the free and basic pay rights to other broadcasters (or develop its own basic pay services). The Hollywood studios normally prefer to deal with one buyer for as many "windows" as possible, as this decreases the cost and risk of selling the Nordic rights to their content.
(349) The parties have contested this argument by stating that NetCom/MTG is a larger buyer of content than the parties. In this comparison the parties, however, omit to include Canal+, which in addition to broadcasting its premium pay-TV channels exclusively on the Canal Digital DTH platform, is also responsible for acquiring PPV rights for Canal Digital. Canal+ has more than 10 million subscribers in Europe. Consequently, it cannot be sustained that Newco would have fewer resources than Netcom/MTG for content-buying. On the contrary, on the basis of the relative sizes of Newco and Netcom/MTG, it is likely that Newco would have greater resources for content-buying. The parties also maintain that Netcom/MTG is a larger provider of pay-TV services than Newco (see above). However, in order to be able to reach this conclusion, the parties have again argued that the number of connected households (where Newco will become the clear leader) is irrelevant. As indicated above, this argument is not sustainable. Moreover, in addition to the above-described weaknesses of NetCom/MTG, it should be noted that it is not able to transmit digital DTH or cable signals. Value-added services, such as PPV, NVOD and VOD, require substantially larger transmission capacities than is feasible to achieve with analogue techniques. NetCom/MTG will therefore not be able to compete effectively with Newco as a buyer of all "windows" for attractive film rights, as long as it has not managed to introduce digital techniques. Moreover, even after this transition, Netcom/MTG will be at a competitive disadvantage, since it will have access to a significantly smaller number of connected households.
(350) The premium pay-TV content is, however, not the only (or even the main) field of interest, as there is general agreement in the industry that premium pay-TV has not been the main driver of the expansion of cable-TV, DTH and SMATV in the Nordic region. Instead, the main driver has been the introduction of advertising-financed and "mini-pay" channels. Both Telia and Telenor are active as buyers of content, in the sense that they both conclude agreements for the distribution of various commercial TV channels by cable, DTH and SMATV, which they subsequently sell either as packages or à la carte to individual households (retail sales), or to other cable and SMATV operators (wholesale sales). As indicated above, both Canal Digital and Viasat have acquired exclusive DTH rights for various channels. Cable TV rights have traditionally been granted on a non-exclusive basis. Canal Digital has, however, been able to acquire a number of bundled [...](297), including DTH, SMATV and cable. In this capacity, Newco would, following the implementation of the notified transaction, regardless of whether its above-described Scandinavian TV distribution activities are considered as being on one relevant market, or on a number of neighbouring markets, be able to gear its reinforced, vertically integrated position in negotiations with content providers.
(351) According to the investigation, Newco will become an obligatory partner for any broadcaster of advertising-financed and/or "mini-pay" channels wishing to target the Nordic market. Such broadcasters will consider the decisive element to be the ability to reach a sufficient number of households, in order to attract sufficient advertising and/or subscription revenue. Following the concentration, this will not be possible in Sweden without access to Newco's distribution networks (where Newco would control access to [60 % to 70 %](298) of all cable-TV households, and have access to most DTH and SMATV households). Newco would also be the only distributor with good coverage of TV households in all major population centres. Households in these areas are particularly interesting to advertisers, and therefore to commercial broadcasters. No other distribution system, such as that of Netcom/MTG (which has less than half the number of connected households), would be regarded as a substitute for Newco's distribution network.
(352) In their Reply, the parties have sought to reduce the importance of their advantage in having the access to a greater number of households, by stating that Netcom/MTG and Stjärn TV are alternatives to broadcasters who are not included in the "basic tier". However, such broadcasters will still face the difficulty that they will wish to be received by as large a number of households as possible. The operator of cable-TV network can choose to charge its customers for a large "basic tier", which does not require the use of decoders (as Telia and Telenor have done), or to transmit only the "must-carry" channels unscrambled (as most other cable operators do). Other cable-TV operators, even if they have adopted a decoder-based analogue strategy, will typically offer a "basic tier" and one or more extended, and therefore more expensive, channel bouquets. The inclusion of a channel in the extended-bouquet offer of other cable-TV networks will, in the same way as in the parties' cable-TV networks, mean that the channel in question is received by only a limited proportion of all connected households. These commercial decisions by the cable-TV operator do not affect the basic fact that advertising-financed channels are dependent on reaching as many viewers as possible in each individual distribution system. Advertising-financed channels will therefore, in the same way as in the parties' cable-TV networks, strive to be included in these "basic tier" offerings. Consequently, any advertising-financed channel which is unable to be included in the "basic offering" in the parties' distribution networks will find largely the same difficulties in being distributed in the equivalent "basic offering" by Netcom/MTG and Stjärn TV. Therefore the parties' contention cannot be accepted. The parties' argument will become entirely irrelevant when the transition to the digital environment has been completed, since, as indicated above, all households will need a digital decoder to receive television signals(299), so that even the must-carry signals will not be available unscrambled.
(353) The parties have also contended that Stjärn TV, would have an equally strong bargaining position as Newco owing to its ownership by UPC. However, the investigation does not support a finding that UPC's TV distribution activities outside the Nordic region are likely to have any impact on its ability to compete with Newco as a buyer of content. On the contrary, the investigation indicates that Stjärn TV or UPC would have to pay a significant premium to any TV channel, for it to be granted exclusive Nordic rights, given that it could only guarantee access to less than 10 % of all Nordic viewers. Consequently, any TV channel that considered granting exclusive or preferential Nordic rights to Stjärn TV or UPC would have to charge a significant premium for the risk that the TV channel may not be able to reach the remaining Nordic viewers, and in particular those connected to Newco's various distribution networks. For any broadcaster who has created an advertising-financed TV channel with specific Nordic interest, it is unlikely that distribution by Stjärn TV/UPC would be a viable alternative, irrespective of the level of the premium that it theoretically could receive. For these reasons, the parties' contention as to the bargaining position of Stjärn TV cannot be accepted.
(354) Another contention by the parties in their Reply is that the introduction of digital terrestrial transmissions (DTT) will reduce the dependency of broadcasters on Newco. DTT was introduced on 1 April 1999 in Sweden. Due to the relatively limited available bandwidth, the number of licences is equally limited. Licences have been granted to the three existing "must-carry" analogue terrestrial channels. In addition, four commercial channels (TV3, Kanal5, Canal+ and TV8) and four educational/regional channels have been given licences. So far only SVT, the existing State-owned "must-carry" channels have commenced DTT broadcasting. Sales of DTT decoders are very low (about 350 in the first four months(300)). Thus, the parties' suggestion that DTT will significantly constrain their power vis-à-vis broadcasters cannot be accepted.
(355) For Norway and Denmark, Newco would control access to approximately [35 % to 45 %](301) and [25 % to 35 %](302) of the cable-TV households and have a strong position in relation to SMATV (see below), whereas the situation in DTH appears to be similar to that in Sweden.
(356) Newco could adopt a commercial strategy to gear this gatekeeper position in Sweden (which has about twice the number of households compared to either Norway or Denmark) to achieve preferential or exclusive distribution rights (cable, DTH and SMATV) for the whole Nordic area. Whereas it is obviously true, as the parties have stressed in their Reply, that Newco will need attractive content in its TV-distribution business, Newco's dependency on any single content-supplier will be lower than the individual content-supplier's dependency on Newco. Advertising-financed and "mini-pay" broadcasters active in the Nordic region operate on financial models that require access to the viewers connected to Newco's distribution networks in Sweden. They would have limited possibilities to resist Newco's demands, and, as long as Newco provides them with an opportunity to maintain and develop their business, would have no reason to do so. Moreover, Newco would not only be able to credibly threaten to take broadcasters off its distribution (as Telia has done in the past with one of Netcom/MTG's channels). It could also request payment to carry the channel in its distribution networks and/or package any resisting broadcaster's channel(s) in a way that is less remunerative for the broadcaster. As an example of the effects of a distributor's tiering decisions, it can be mentioned that Telia for several years has carried the English-language version of Eurosport in its "basic tier", which is accessible to all of its 1,3 million connected households. At the same time Telia has put the Eurosport Nordic signal in its extended offer, which can only be accessed with a decoder. The consequence is that the large majority of households connected to Telia's cable network (who pay only for the "basic tier"), despite the broadcaster's efforts to offer a more attractive service, have been unable to receive this channel in their own language(303).
(357) As concerns packaging, it has also been brought to the Commission's attention that the possibilities for a distributor to leverage its strengths against broadcasters will increase with digitalisation. The reason for this is that the increased capacity will allow the distributor to create multiple packages or "tiers", each of which would appeal to different groups of subscribers (and therefore have varying potential revenues for broadcasters). Digitalisation will therefore increase the ability of Newco as a dominant distributor to offer its favoured suppliers increased revenues.
(358) Newco's ability to achieve preferential or exclusive distribution rights, will significantly weaken the competitive situation of other TV distributors (cable, DTH and SMATV), as the latter's products would suffer from a cost disadvantage and/or a reduced number of TV channels to offer to their customers. As existing distribution agreements come up for renewal, broadcasters will not have any viable alternative for their Nordic distribution. This would therefore ultimately create a dominant position for Newco as a buyer of content for TV distribution.
(359) This fear is strengthened by Newco's vertical integration into the provision of satellite transponders with a Nordic footprint. Since NSAB, its only competitor on the satellite side is not vertically integrated, Newco would be the only supplier able to offer a bundled service consisting of satellite infrastructure and retail distribution covering a significant share of all TV households. Such bundling practices are to a certain extent already employed by Telenor and Canal Digital. This can, for example, be seen in Canal Digital's agreements with several broadcasters, where the broadcasters do not [...](305). This is attractive to broadcasters, since the transponder capacity, if rented separately, can represent 30 % or more of the channel's total costs. Given its control over 65 % to 77 % of the Nordic transponder capacity suited for television purposes, Newco's ability to engage in such practices cannot be matched by any alternative distributors, whose only possibility of copying Newco's strategy would be to lease, on commercial terms, a block of transponders from Newco and/or NSAB. In addition to this cost advantage, Newco would, following the merger, be able to credibly threaten broadcasters with less attractive distribution terms (outside the "basic tier" for example), in particular on Telia's cable network, unless they agree to take Newco's bundled services.
(360) The likelihood that Newco would adopt various bundling strategies aimed at leveraging its strong position in one area to strengthen its overall position as a distributor must be considered to be high. Canal Digital has, for example, concluded several exclusive distribution agreements, not only covering its core business, analogue and digital DTH, but also digital cable-TV and SMATV distribution. Similarly, Telia has concluded agreements giving it not only advantageous distribution rights for cable-TV, but also rights for SMATV and DTH distribution (which it is currently not using in its business). In their Reply, the parties have contested these findings, stating that Canal Digital, and, in particular, Telia only have a limited number of exclusive rights, that these are not advantageous, that all rights are being used, and, finally that Netcom/MTG has more important exclusive rights. None of the parties' contentions can be sustained. According to their own information Canal Digital has an extensive catalogue of exclusive rights. For example, in Sweden it has exclusive digital rights to [...](306) channels in DTH, [...](307) in cable-TV and [...](308) in SMATV. This is far more extensive than the rights held by Netcom/MTG. It is not surprising that channel-providers have been less interested in granting exclusive rights to Netcom/MTG, as many broadcasters may hesitate to rely on a competing broadcaster for their distribution in the Nordic area. As to the parties' other contentions, information submitted by broadcasters and other distributors clearly indicates that Telia does have advantageous distribution rights. Finally, the relevant issue is not whether Telia, prior to the proposed concentration, acquired a large portfolio of SMATV and DTH rights. Instead, the relevant point is that Telia's ability to do so (without already being active in those areas) provides an indication of the combined strength of Newco after the concentration.
(361) The parties have also been able to secure rights [...](309) from several of their existing suppliers. Moreover, Telenor has started an aggressive strategy to induce broadcasters to move from NSAB to the Telenor satellites. As mentioned above, one broadcaster was recently convinced to move to 1° west by being offered a penetration-based agreement. Newco could use such strategies to further reduce or eliminate competition from other DTH, cable and SMATV distributors and/or NSAB, which would have the effect of further strengthening its position as an obligatory partner of all commercial broadcasters. This would considerably strengthen its gatekeeper function and control over all levels of the TV distribution chain in Scandinavia.
(362) In conclusion, for all the above reasons, the Commission has come to the conclusion that the notified concentration would create a dominant position for Newco as a buyer of content for TV distribution.
Wholesaling of rights to content
(363) Both parties (and Canal Digital) are active as wholesalers of rights to content. Telenor (including Canal Digital) is the largest existing wholesaler and has more than [...](310) wholesale customers in the three Scandinavian countries. The customers are mainly SMATV and cable networks. According to Telenor's 1998 annual report 686000 viewers in Scandinavia were offered access to pay-TV through these activities. This represents 70 % of all SMATV households in the region. The second largest wholesaler in all three countries is Netcom/MTG, which, in 1998, reached a slightly smaller number of viewers than Telenor. According to the notification Telia's activities have so far been limited to Denmark, where it supplies approximately [...](311) SMATV networks(312). A general feature of the wholesale market has been that a significant proportion of the customers have been supplied by both Telenor and Netcom/MTG.
(364) However, it appears that the proposed concentration, would enable Newco to further develop and significantly strengthen this business activity, which could have significant strategic importance for the merged entity. Newco's wholesaling activities could be further strengthened by using the above-described gate-keeper position in the provision of satellite services (in particular as concerns digital services), combined with its position as an obligatory retail distribution partner for commercial TV channels. Based on these strengths, Newco would be able to create several analogue and digital packages. As mentioned above, Newco would be the only company in the Nordic region that could include value-added services, such as PPV, NVOD, VOD and Internet access, in its digital packages. Newco could offer such packages to any cable or SMATV operator in the Nordic market. Newco's incentives to adopt such a strategy would be strong, since the additional cost of supplying, on a wholesale basis, any such package which it will develop for its own distribution activities, will be very low or even non-existent.
(365) Even prior to the proposed concentration, Telia, Telenor and Canal Digital have been able to use their strong position in their respective core activities to achieve significantly better terms from broadcasters than their competitors (or, expressed from the suppliers' point of view, broadcasters have accepted distribution in the parties' networks on significantly less attractive terms than they have accepted in competing distribution systems). Telia has, for example, in the period between 1995 and 1998 been able to reduce significantly the total fees it pays to broadcasters, despite having increased the number of broadcasters with whom it has distribution agreements from [...](313) over the same period. In their Reply, the parties have contested this conclusion. In their view Telia's reduced costs are due to a reduction in the number of households with decoders in its network (from [...](314) to [...](315)), and that the comparison should be made on the basis of Telia's pay-TV revenues. First, although it is unclear how a reduced number of decoders would reduce Telia's costs, the fact remains that in 1995 Telia paid, on average, [...](316) to each broadcaster. In 1998 this figure had decreased to [...](317), a reduction of [...](318). Second, as has been indicated above, the Commission does not accept the parties' definition of pay-TV revenues, as this excludes more than half of Telia's turnover from retail TV distribution. Consequently, the argument put forward by the parties in the Reply cannot be accepted.
(366) It is widely expected that Newco, following the proposed concentration would use its position as an obligatory partner for broadcasters to achieve even better terms for bundled retail and wholesale rights. Given its competitive advantages, it is therefore likely that Newco would be able to offer programme packages at prices that would provide a strong incentive for other cable and SMATV operators to acquire these rights from Newco, rather than directly from individual broadcasters (including Netcom/MTG). As indicated above, these broadcasters would also be increasingly dependent on Newco for retail TV distribution in the three Scandinavian countries, which will limit their ability to challenge Newco on the wholesale level. Although a development where Newco at least initially would offer attractive conditions for its wholesale packages may in the short term have certain cost advantages for competing cable and SMATV operators, it would be likely in the medium to long term to have significant adverse effects on competition.
(367) First, Newco would be able to largely eliminate competition from competing cable and SMATV operators, not only by having full information on the volume of their business and their cost structure, but potentially also through imposing exclusivity or other restrictive obligations, which would eliminate their ability to compete by providing new or innovative content.
(368) Second, for content providers, such a development would mean that they would be faced with a dominant or even monopsonistic purchaser of content in Scandinavia. This would not only have a negative impact on their profitability, but also significantly reduce their ability to influence the packaging and sales of their content or channels. Under such circumstances, it is likely that broadcasters will have reduced incentives to invest in improving quality and/or in innovation of new content. As a result of the proposed concentration, the Scandinavian markets for TV distribution may therefore enter the digital era with a prognosis of reduced consumer choice, instead of, as foreseen, an increased choice.
(369) The proposed concentration would therefore create a dominant position for Newco in the field of wholesaling rights to content, regardless of whether this market is assessed on a Scandinavian level, or separately for the three countries.
Technology for technical services relating to pay-TV
(370) The market for the provision of technical pay-TV services is currently limited, since most major cable and DTH operators perform these activities in-house (Telia, Telenor, Netcom/MTG and others). The parties are, however, active as providers of technical pay-TV services to third parties. Telenor provides these services in its own right, as well as through Canal Digital. The latter is currently the only provider of digital technical pay-TV services in the Nordic area, and has an agreement with [...](319), as well as with other Swedish cable and SMATV operators. Telia provides such services to cable and SMATV operators in Denmark, and has an agreement with [...](320), by which the latter is licensed to use Telia's SMS data-management software system. Telenor has invested significant amounts in the development of a proprietary digital Conditional Access (CA) and Applied Programme Interface (API) system called Conax. Telenor's investment in this technology has been increased by about [...](321) over each of the last four years.
(371) The parties have stated that the adoption in 1997 of the Eurobox standards by several European cable-TV operators, and in 1998 of common specifications for a decoder box based on European standards by all major Nordic TV distributors and broadcasters in the context of the Nordig discussions, will enable customers to switch to a new supplier without changing their equipment. The parties, however, accept that further harmonisation would be needed in the context of the Nordig project before this is to become possible, and also that Conax cannot be applied to the Eurobox standard.
(372) During the investigation, concerns have been raised that the proposed concentration will give Newco the incentive and ability either to abandon the Nordig project and focus on the proprietary Conax system, or to impose Conax as the conditional access technology to be used in the Nordig project. If Newco were to use its advanced position in terms of digital services (Telia's cable network and Canal Digital's DTH operation) to impose Conax as a de facto standard on the market, it would, given the number of households connected to Newco's distribution systems, be extremely difficult for any other market player to introduce a competing system(322). As examples of how Newco could use its proprietary technology to lock customers into its distribution system, third parties have submitted that Telenor is already charging a significant additional fee for up-linking a TV signal which is not encrypted with the Conax technology. Another example is that the digital DTH decoders, which are sold in the Scandinavian countries, are locked to Canal Digital's programme guide and the built-in telephone modem cannot be used to reach other suppliers. Consequently, if NetCom/MTG or any other supplier were to launch digital DTH services, Canal Digital's customers would be unable to switch supplier, unless they were to buy a new decoder. Although Telia has, so far, used Viaccess, a technology competing with Conax, in its digital decoders, the number of such decoders that have been installed in Telia's cable network is still relatively limited (about [...](323) of all connected households). Moreover, according to the parties, a combined digital decoder (able to receive cable and DTH signals) could be produced at a cost which is only EUR [...](324) (less than [0 % to 20 %]) higher than for the current signal specific decoders. It is therefore widely expected that Newco would use the Conax technology also in the existing Telia cable network, and adopt a similar strategy for the digital cable TV decoders, as described above for DTH.
(373) It would therefore appear that Newco will be able to use its current position in the field of technical services, including the proprietary Conax technology, to further strengthen its control over the abovementioned markets. Moreover, as it is likely that Newco would be successful in imposing its digital technology as a de facto standard for the Nordic market, the proposed concentration would create a dominant position in the provision of technology for technical services to pay-TV.
Conclusion on TV distribution markets
(374) The proposed concentration would create a vertically-integrated entity, combining all the activities and strengths of Telia and Telenor in the field of TV distribution. Given that the ultimate aim of all the above-described activities is to allow individual households to receive programming produced by various broadcasters, there is a strong link between the different levels of the distribution chain. This will provide Newco with a commercial incentive to gear its particular strengths at each individual level to further its position on all the others. It has been identified above that the proposed concentration would create or strengthen a dominant position for Newco in the provision of satellite transponder capacity, retail TV distribution, content-buying and wholesaling, and in the provision of technology for technical services to commercial TV. Due to the link between these activities, the overall concern raised by the concentration is even greater than the sum of the concerns for each individual level of the distribution chain. It is particularly worrying that Newco's position, as has been described above, would be even stronger in the digital environment. The creation of Newco could therefore lead to a situation where one company would have the power to decide the shape of the new converged multimedia landscape, without any significant restraints from its competitors, customers or final consumers.
(375) Moreover, these concerns are compounded by the fact that Telenor is set to take a controlling position in Norkring (the Norwegian terrestrial TV transmission company, which owns about 6500 transmission stations in Norway) within the near future. This would mean that Newco would control all existing technical platforms for TV distribution in Norway. Furthermore, on the convergence of the media and telephony sectors (including the approaching switch from analogue to digital techniques), Newco would, through its ownership of the necessary infrastructures, have unparalleled possibilities to bundle various telephony, Internet and TV services. It would therefore be able to create a loyalty from its customers that no competitor offering a more limited number of services would be able to match, and consequently to create insurmountable barriers to entry covering its entire scope of activities.
III. OVERALL ASSESSMENT OF THE NOTIFIED TRANSACTION
(376) The notified transaction would create or strengthen dominant positions on the above markets for telephony services in Sweden, Norway and Ireland, as well on various levels of the TV distribution chain in the Nordic countries. These negative effects would follow partly from the superior market power of the combined entity, as evidenced by its high market shares in relation to its smaller and weaker competitors. However these effects would be substantially reinforced by the vertical effects, resulting from the combined activities of Telia and Telenor. The result of the operation is therefore to create a combined entity with strong or dominant positions covering the whole value-chain of the telephony and TV sectors. Seen in contrast to the fact that most of Newco's competitors on the various levels are not at all vertically integrated, this strengthens the overall dominance of the company, and further reduces the possibility that its competitors would be able to engage in effective competition with Newco. The combined entity's wide-ranging activities, and advanced position concerning digital technologies, will also serve as a significant barrier to entry on all levels of its activities.
(377) For the above reasons the Commission has come to the conclusion that the notified concentration, in the absence of any modifications, would be incompatible with the common market and the functioning of the EEA Agreement, since it would create or strengthen dominant positions in the markets for telephony and TV services, as a result of which effective competition would be significantly impeded in the common market within the meaning of Article 2(3) of the Merger Regulation and in the EEA within the meaning of Article 57(1) of the EEA Agreement.
IV. UNDERTAKINGS PROPOSED BY THE PARTIES
(378) In order to resolve the competitive concerns identified by the Commission on 17 and 24 September 1999, the parties submitted undertakings to resolve the competition concerns raised by the concentration(325). It is true that the latter undertakings were submitted outside the time period provided for by Article 18 of Commission Regulation (EC) No 447/98(326); however, that Regulation also provides that the Commission may, in exceptional circumstances, extend the three-month period. In this case it should be noted that the parties had already submitted undertakings within the three-month period, and that a request for a one-week extension to propose the undertakings contained in the second submission was received by the Commission within the three-month period. Moreover, the request for extension set out the nature of the Commitments that would be submitted after the additional week, which allowed the Commission to begin assessing the remedies before they were formally presented.
(379) Telia and Telenor are owned by the Swedish and Norwegian States. For this reason their plans to merge had to be approved by their respective parliaments. The Swedish and Norwegian parliaments granted such approval for the transaction after significant debate, not only about the transaction as such, but also about its impact on a number of other policy issues of public interest, such as media plurality and development of the future information technology society. Against this background, it should be recognised that the two governments, in their role as owners, were required to pay additional attention to the potential impact of the later remedies on such other policy issues, including discussions with representatives of the respective parliaments. The fact that the parliament had to be involved in these issues added further constraints to the process. The fact that political bodies from two different countries were involved was an additional obstacle in meeting the deadline provided for in Regulation (EC) No 447/98. The exceptional circumstances are therefore not related to the State ownership as such, but to the fact that the business activities of the parties, and indeed those affected by the additional commitments, include businesses with an impact on wider policy issues of national concern which require political consultation. Moreover, the publication by PTS (the Swedish telecom regulator) of a report with a proposal for new LLU legislation on 16 September 1999 will have had a delaying impact on the government's evaluation process as concerns the parties' plans to submit the LLU and cable-TV remedies. Finally, the parties would have been required to return to their parliaments in order to renotify the agreement, so that the agreement could not have been withdrawn and renotified with modifications as easily as another transaction might have been.
(380) It must therefore be recognised that the parties faced additional and exceptional constraints in submitting these undertakings, compared with those faced by other companies (whether publicly or privately owned), whose activities do not have a direct impact on policy issues of public interest. Finally, the fact that third parties had already submitted comments on a possible LLU undertaking in phase one, together with the clear-cut character of the proposed undertakings has enabled the Commission's services to conduct a full and proper assessment of the modified proposal, including adequate consultation with Member States and third parties.
(381) The parties' final proposal for undertakings are as follows:
(a) Telia divestitures
1. Telia Norge, including Telia's Norwegian activities in the provision of domestic and international voice-telephony services, data-communication services, the supply of PABXs and related services as well as the provision of Internet services,
2. the provision of network services currently undertaken through Telia Nättjänster Norden AB,
3. Telia InfoMedia Television AB, including Telia's cable-TV business in Sweden.
(b) Telenor divestitures
1. The 33 % shareholding in Telenordia, with activities in domestic and international voice-telephony services, Internet and data communication services and enhanced global services including Nordicom,
2. the 50 % shareholding in Internordia, active in Sweden in the supply of PABXs,
3. the shareholdings in Lokaldelen and Telenor Företagsinfo AB, active in Sweden in the supply of local and business-to-business directories,
4. Telenor Avidi AS, including Telenor's cable-TV business in Norway.
(c) Telia or Telenor divestiture
The undertakings provide that either Telia will divest itself of its entire shareholding in Eircom (formerly Telecom Eireann), or Telenor will divest itself of its entire shareholding in ESAT Digifone.
(d) Local loop unbundling
The undertaking provides that Telia and Telenor will allow competitors access to their respective local access networks in order to provide any technically feasible services on non-discriminatory terms. The undertaking will enable competitors to establish a sole customer relationship with telecommunications customers.
(382) The undertaking to provide unbundled local loop access will take effect within three months of the date of the Commission's Decision. The divestiture of the parties' respective cable-TV networks and other businesses set out above are subject to the conditions normally imposed by the Commission in such cases, and will be effected within [...](327) of the Commission's Decision.
(383) Each of the businesses to be divested will be sold as a going concern, and will include sufficient sales staff, production and administrative personnel, all existing contracts and all licences necessary to continue using the existing technology currently used by the respective businesses on the same terms as at present. Each divestiture will be made to a viable existing or prospective competitor, unconnected to and independent of Telia and Telenor, and possessing the financial resources and proven expertise enabling them to develop the divested business into an active competitive force on the market. Each divestiture will be subject to the Commission's express approval.
(384) Prior to the divestitures, the parties commit to hold these businesses as distinct and saleable businesses. Telia and Telenor will each appoint a trustee, subject to the Commission's approval. The trustee's mandate, the terms of which will also be subject to the Commission's approval, will include determining and monitoring the management and operation of the businesses to be divested and to report to the Commission on Telia's and Telenor's adherence to their commitments, as well as on the characteristics of potential buyers. There will also be a reporting obligation to the Commission and the national telecommunication authorities as regards compliance with the LLU commitment.
(385) Finally, the parties have undertaken, in the event that the divestitures have not been completed within certain periods, to give the trustee(s) an irrevocable mandate to find a purchaser for the businesses to be divested.
V. ASSESSMENT OF THE PROPOSED UNDERTAKINGS
(386) In the field of television services, the proposed cable-TV divestiture would remove the additional business activities brought by Telia into the merged entity. Therefore, the merged entity's television activities would not be more extensive than those previously carried out by Telenor. More importantly, the total number of households connected to the merged entity's retail TV distribution system would not be greater than that previously connected to Telenor. Given that, as was described above, the increase in connected households was the main cause for competitive concerns also on the vertically related markets, the cable-TV divestiture would also remove the concerns on these related markets. Thus, although the merged entity would retain a strong position in several of the vertically related markets, it would not, following the divestiture of the cable-TV activities be in any appreciably stronger position than Telenor has already been, for example, as concerns the bundling of satellite transponder services and retail TV distribution services.
(387) The buyer(s) of the parties' Swedish and Norwegian cable-TV businesses will become a significant force on the markets for the acquisition and distribution of TV services, and will, at least as far as the Telia cable-TV network is concerned, immediately be in a position to offer value-added services on the basis of a digitally equipped distribution system. It is understood that the buyer(s) of the parties' cable TV networks, in line with the established practice on ancillary restraints, may demand that the parties undertake contractually not to compete with the divested cable-TV businesses for a period of three to five years.
(388) In the course of the market test, it has been suggested that the parties would be able to replace the divested cable-TV activities with similar services based on xDSL technologies over the PSTN network. There are, however, several limiting elements for the upgrading of the PSTN networks with xDSL technologies for TV distribution. First, these technologies are primarily suited to the provision of fast Internet access, not TV distribution, as the bandwidth is insufficient to carry a traditional "bouquet" of channels at least as far as the commercially available forms of xDSL technology is concerned (ADSL). Second, as the PSTN network is also used for voice and data telephony, the introduction of xDSL technologies is likely to entail technical problems relating to reliability and interference of services. Third, the investment needed to upgrade the existing PSTN network for xDSL technology is very high, in particular for the more advanced technology, VDSL, which can only be used over copper lines up to 500 to 800 m from the customer's premises. Moreover, as the parties would have to undertake such upgrades across the entire PSTN networks, this could not realistically be done in the short to medium term, even if this were to be assumed that the necessary funds were available. Consequently, it must be concluded that the effectiveness of the cable-TV divestiture is not threatened by the parties' ability to replace the divested cable-TV activities with similar services based on xDSL technologies over the PSTN network.
(389) In conclusion, therefore, the parties' final proposal for divestiture of the cable-TV networks in Sweden and Norway would remove all of the competition concerns identified above as regards the acquisition and distribution of TV services.
(390) The proposal to introduce LLU in both countries is comprehensive, and takes as its starting point the third party comments to the LLU proposal made in phase one. The comments received by the Commission do not raise concerns that the final proposal would be ineffective due to limitations that are not justifiable by objective criteria relating to network security. The LLU proposal will therefore greatly reduce the competitive concerns identified for the various telecom services, and will, by granting new entrants the ability to establish a unique customer relation with their clients, assure that the merged entity will remain subject to at least the same degree of competition as each of Telia and Telenor were prior to the proposed merger.
(391) However, it should be recognised that, at least initially, the main beneficiaries of the LLU proposal are likely to be larger business users. In that context, the divestiture of the parties' cable-TV activities will also have the effect of complementing the LLU proposal. The new owner of the cable-TV networks will be able to offer competition to the parties' telecommunication networks by allowing increased competition on the various telecommunication markets for residential users and small businesses, who are less likely to benefit from LLU.
(392) Finally, the divestitures of the existing nationally overlapping businesses, as set out above, will enable the new owners of the respective businesses to create or develop a stronger foothold on the Swedish and Norwegian telecommunication markets, which they will be able to develop further on the basis of the above-described LLU commitment. For these reasons, the parties' final proposal for remedies would remove all the identified competition concerns in the telecommunications area as well,
HAS ADOPTED THIS DECISION:
Article 1
The concentration notified by Telia AB (publ) and Telenor AS on 28 April 1999, by which the Swedish and Norwegian Governments propose to acquire joint control of a newly-created company, Newco, set up to hold the shares of both notifying companies is, subject to full compliance with the final proposal for undertakings submitted by the parties and set out in Annexes I and II compatible with the common market and the functioning of the EEA Agreement.
Article 2
This Decision is addressed to:
Telia AB (publ) Mårbackagatan 11 S - 123 86 Farsta Sweden
and
Telenor AS PO Box 6701, St Olavs plass N - 0130 Oslo Norway
Done at Brussels, 13 October 1999. | [
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Council Decision
of 10 February 2004
appointing a Spanish member of the Committee of the Regions
(2004/171/EC)
THE COUNCIL OF THE EUROPEAN UNION,
Having regard to the Treaty establishing the European Community, and in particular Article 263 thereof,
Having regard to the proposal from the Spanish Government,
Whereas:
(1) On 22 January 2002 the Council adopted Decision 2002/60/EC appointing the members and alternate members of the Committee of the Regions(1).
(2) The seat of a member of the Committee of the Regions has fallen vacant following the expiry of the mandate of Mr José María ALVAREZ DEL MANZANO y LOPEZ DEL HIERRO, of which the Council was notified on 22 January 2004,
HAS DECIDED AS FOLLOWS:
Sole Article
Mr Alberto RUIZ-GALLARDON JIMENEZ, Alcalde de Madrid, is hereby appointed a member of the Committee of the Regions in place of Mr José María ALVAREZ DEL MANZANO y LOPEZ DEL HIERRO for the remainder of his term of office, which ends on 25 January 2006.
Done at Brussels, 10 February 2004. | [
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Commission Regulation (EC) No 1491/2001
of 19 July 2001
fixing the maximum export refund on common wheat in connection with the invitation to tender issued in Regulation (EC) No 943/2001
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Council Regulation (EEC) No 1766/92 of 30 June 1992 on the common organisation of the market in cereals(1), as last amended by Regulation (EC) No 1666/2000(2),
Having regard to Commission Regulation (EC) No 1501/95 of 29 June 1995 laying down certain detailed rules for the application of Council Regulation (EEC) No 1766/92 on the granting of export refunds on cereals and the measures to be taken in the event of disturbance on the market for cereals(3), as last amended by Regulation (EC) No 602/2001(4), and in particular Article 4 thereof,
Whereas:
(1) An invitation to tender for the refund for the export of common wheat to all third countries except for Poland was opened pursuant to Commission Regulation (EC) No 943/2001(5).
(2) Article 7 of Regulation (EC) No 1501/95 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 13 to 19 July 2001, pursuant to the invitation to tender issued in Regulation (EC) No 943/2001, the maximum refund on exportation of common wheat shall be EUR 0,00/t.
Article 2
This Regulation shall enter into force on 20 July 2001.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 19 July 2001. | [
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COUNCIL DECISION of 23 November 1993 concerning the conclusion of an Agreement in the form of an exchange of letters between the European Community and Romania on the reciprocal establishment of tariff quotas for certain wines (93/725/EC)
THE COUNCIL OF THE EUROPEAN UNION,
Having regard to the Treaty establishing the European Community, and in particular Article 113 thereof,
Having regard to the proposal from the Commission,
Whereas the Agreement negotiated between the European Community and Romania on the reciprocal establishment of tariff quotas for certain wines will promote the development of trade in wine within the meaning of the Association Agreement and the Interim Agreement on trade and trade-related matters, concluded between the Community and Romania; whereas it is therefore desirable to approve the said Agreement;
Whereas, in order to facilitate the implementation of certain provisions of the Agreement, the Commission should be authorized to conclude the necessary legislation for implementation of the Agreement in accordance with the procedure laid down in Article 83 of Council Regulation (EEC) No 822/87 of 16 March 1987 on the common organization of the market in wine (1);
Whereas, since the provisions of the Agreement are directly linked to measures covered by the common commercial and agricultural policy, it must be established at Community level,
HAS DECIDED AS FOLLOWS:
Article 1
The Agreement in the form of an exchange of letters between the European Community and Romania on the reciprocal establishment of tariff quotas for certain wines is hereby approved on behalf of the Community,
The text of the Agreement is attached to this Decision.
Article 2
The President of the Council is hereby authorized to designate the person empowered to sign the Agreement in order to bind the Community.
Article 3
The Commission is hereby authorized to conclude the necessary acts for implementation under the second indent of points 6 and 8 of the Agreement, in accordance with the procedure laid down in Article 83 of Regulation (EEC) No 822/87.
Article 4
This Decision shall published in the Official Journal of the European Communities.
Done at Brussels, 23 November 1993. | [
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Commission Regulation (EC) No 354/2004
of 27 February 2004
fixing the maximum aid for cream, butter and concentrated butter for the 136th individual invitation to tender under the standing invitation to tender provided for in Regulation (EC) No 2571/97
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Council Regulation (EC) No 1255/1999 of 17 May 1999 on the common organisation of the market in milk and milk products(1), and in particular Article 10 thereof,
Whereas:
(1) The intervention agencies are, pursuant to Commission Regulation (EC) No 2571/97 of 15 December 1997 on the sale of butter at reduced prices and the granting of aid for cream, butter and concentrated butter for use in the manufacture of pastry products, ice-cream and other foodstuffs(2), to sell by invitation to tender certain quantities of butter of intervention stocks that they hold and to grant aid for cream, butter and concentrated butter. Article 18 of that Regulation stipulates that in the light of the tenders received in response to each individual invitation to tender a minimum selling price shall be fixed for butter and maximum aid shall be fixed for cream, butter and concentrated butter. It is further stipulated that the price or aid may vary according to the intended use of the butter, its fat content and the incorporation procedure, and that a decision may also be taken to make no award in response to the tenders submitted. The amount(s) of the processing securities must be fixed accordingly.
(2) The measures provided for in this Regulation are in accordance with the opinion of the Management Committee for Milk and Milk Products,
HAS ADOPTED THIS REGULATION:
Article 1
The maximum aid and processing securities applying for the 136th individual invitation to tender, under the standing invitation to tender provided for in Regulation (EC) No 2571/97, shall be fixed as indicated in the Annex hereto.
Article 2
This Regulation shall enter into force on 28 February 2004.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 27 February 2004. | [
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DECISION No 1686/98/EC OF THE EUROPEAN PARLIAMENT AND THE COUNCIL of 20 July 1998 establishing the Community action programme 'European Voluntary Service for Young People`
THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION,
Having regard to the Treaty establishing the European Community, and in particular Article 126 thereof,
Having regard to the proposal from the Commission (1),
Having regard to the opinion of the Economic and Social Committee (2),
Having regard to the opinion of the Committee of the Regions (3),
Acting in accordance with the procedure laid down in Article 189b of the Treaty (4), in the light of the joint text approved by the Conciliation Committee on 30 June 1998,
(1) Whereas the Essen European Council (9 and 10 December 1994), the Cannes European Council (26 and 27 June 1995), the Madrid European Council (15 and 16 December 1995) and the Dublin European Council (13 and 14 December 1996) stressed the need to undertake new measures to promote the social and occupational integration of young people in Europe;
(2) Whereas the conclusions of the Florence European Council (21 and 22 June 1996) stressed the importance of helping young people to become integrated into active life and, in this respect, noted with interest the idea of European voluntary service;
(3) Whereas the Amsterdam European Council (16 and 17 June 1997) expressed its attachment to voluntary service activities;
(4) Whereas the Council requested the Commission to propose practical measures to promote transnational cooperation in the field of voluntary service;
(5) Whereas, in its Resolution of 5 October 1995 on cooperation with third countries in the youth field (5), the Council stressed the need to step up cooperation, particularly with regard to voluntary service, with third countries with which the Community has concluded association or cooperation agreements;
(6) Whereas the European Council of 25 and 26 June 1984 asked Member States to take the necessary measures to encourage young people to take part in projects organised by the Community outside its frontiers, and recommended Member States to acknowledge as one of the objectives of their social policies the incorporation of social protection for development volunteers or the correction of shortcomings in this field;
(7) Whereas the Parliament has also expressed its support, on many occasions, for the development of voluntary service at Community level, in particular in its Resolution of 22 September 1995 on the establishment of European civilian service (6);
(8) Whereas, insofar as it fosters informal education, the policy of cooperation in the youth field is complementary to the education policy enshrined in the Treaty, and whereas that policy is in need of development;
(9) Whereas voluntary service activities also exist in a variety of forms in several Member States and a number of non-governmental organisations are working in this field;
(10) Whereas only limited experience has been acquired thereby and whereas transnational voluntary service activities should be developed in qualitative and quantitative terms;
(11) Whereas it is necessary to create new opportunities for the transfer and application of experience and good practice and to promote new partnerships;
(12) Whereas an independent ex-ante evaluation of a multi-annual programme of voluntary service has been carried out in accordance with the principles put in place by the Commission for the second phase of its SEM 2000 ('sound and efficient management`) programme;
(13) Whereas this Decision establishes a Community framework designed to contribute to the development of transnational voluntary service activities; whereas appropriate, coordinated measures designed to eliminate the legal and administrative obstacles should be adopted by the Member States in order to improve further the access of young people to the programme and facilitate recognition of the specific nature of the situation of young volunteers;
(14) Whereas participation by young people in voluntary service activities constitutes a form of informal education, the quality of which will to a large extent be based on appropriate preparation activities including those of a linguistic and cultural nature, contributes to their future development and to broadening their horizons, promotes the development of their social skills, active citizenship and their balanced integration into society from an economic, social and cultural point of view and makes it possible to promote awareness of genuine European citizenship;
(15) Whereas the establishment of European voluntary service should be carried out in conjunction with other Community schemes to benefit young people developed in particular under the 'Youth for Europe` programme (7), and it is therefore important to make sure that they are complementary;
(16) Whereas it is necessary to reinforce the links between the measures carried out under this programme, combating the various forms of exclusion, including racism and xenophobia, cooperation with third countries and the projects pursued within the framework of social policy, particularly action assisted by the European Social Fund on training and access to employment (both mainstream and the 'Employment-Youthstart` Community Initiative);
(17) Whereas, in order to facilitate the transition to working life, complementary links need to be established between European voluntary service and, in particular, local employment initiatives;
(18) Whereas voluntary service may help to meet new societal needs and also to identify new sources of activities and professions;
(19) Whereas participation in the voluntary service activities covered by this Decision should be purely voluntary; whereas such activities should be non-profit-making and the host project should constitute a vehicle for informal educational activity on the part of young volunteers and whereas that activity can therefore in no case be equated with employment;
(20) Whereas young volunteers taking part in this programme should have adequate means of subsistence;
(21) Whereas European voluntary service activities are not a substitute for military service, for the alternative service formulae provided in particular for conscientious objectors or for the compulsory civilian service existing in several Member States, and should not restrict or be a substitute for potential or existing paid employment;
(22) Whereas the Commission and the Member States should endeavour to ensure complementarity between European voluntary service activities and similar national activities of various kinds;
(23) Whereas all young people legally resident in a Member State should be eligible to apply to take part in European voluntary service, without discrimination;
(24) Whereas the grant of residence permits and any visas required falls within the competence of the authorities in the Member States, and whereas the concept of legal resident is defined by national law;
(25) Whereas implementation of this programme should be based on decentralised structures designated by Member States in close cooperation with the national authorities responsible for youth questions, with a view to guaranteeing that Community action supports and complements national activities whilst respecting the principle of subsidiarity, as defined in Article 3b of the Treaty;
(26) Whereas European voluntary service activities are of direct concern to local and regional authorities having regard to their potential role in providing direct support for projects but also in developing local information and in following-up young people at the end of their service;
(27) Whereas the social partners should play an important role in the development of European voluntary service, not only to avoid any activity that is a substitute for potential or existing paid employment, but also as part of following up the experience acquired so as to assist with the active integration of young people into society;
(28) Whereas the voluntary sector should also play an important role in enabling all young people, particularly those with the greatest difficulties, to participate in these programmes;
(29) Whereas there should be ongoing monitoring to take account in particular of the opinions of the social partners and the voluntary sector;
(30) Whereas the Commission and the Member States are to ensure that they foster cooperation with non-governmental organisations active in the youth and social fields, as well as in the areas of the environment, culture and combating the various forms of exclusion;
(31) Whereas the Agreement on the European Economic Area provides for greater cooperation in the field of education, training and youth between the European Community and its Member States, on the one hand, and the States of the European Free Trade Area (EFTA) participating in the European Economic Area, on the other; whereas Article 4 of Protocol 31 provides that the EFTA States participating in the European Economic Area shall, from 1 January 1995, participate in all Community programmes in the field of education, training and youth then in force or adopted;
(32) Whereas the 'European Voluntary Service for Young People` programme is open to the participation of the associated countries of Central and Eastern Europe (CCEE), in accordance with the conditions set out in the Europe Agreements or in the Additional Protocols, already concluded or to be concluded, on the participation of those countries in Community programmes; whereas this programme is open to the participation of Cyprus and Malta on the basis of additional appropriations under the same rules as apply to the EFTA States participating in the European Economic Area, in accordance with procedures to be agreed with those countries, without prejudice to the procedures to be completed for Malta's participation;
(33) Whereas the promotion of active citizenship and the acquisition of informal education experience, on the one hand, and the contribution of young people to cooperation between the Community and third countries, on the other, are important objectives of the 'European Voluntary Service for Young People` programme;
(34) Whereas a number of association and cooperation agreements provide for exchanges of young people;
(35) Whereas this Decision lays down, for the entire duration of the programme, a financial framework constituting the principal point of reference, within the meaning of point 1 of the Joint Declaration by the European Parliament, the Council and the Commission of 6 March 1995 (8), for the budgetary authority during the annual budgetary procedure;
(36) Whereas the Community's financial perspective is valid until 1999 and will have to be revised for the period beyond that date;
(37) Whereas, in the light of the conclusion of the third phase of the 'Youth for Europe` programme on 31 December 1999, the Commission will present to the European Parliament and to the Council, before 31 December 1997, a report setting out its ideas on the 'priorities of the policy of cooperation in the youth field looking forward to the year 2000`;
(38) Whereas an agreement was reached on 20 December 1994 on a modus vivendi between the European Parliament, the Council and the Commission concerning the implementing measures for acts adopted pursuant to the procedure referred to in Article 189b of the Treaty (9),
HAVE DECIDED AS FOLLOWS:
Article 1
Establishment of the programme
1. This Decision establishes the Community action programme 'European Voluntary Service for Young People`, hereinafter referred to as the 'programme`, concerning European voluntary service activities within the Community and in third countries for young people legally resident in a Member State.
The programme is adopted for the period from 1 January 1998 to 31 December 1999.
2. This programme comes within the context of the general objectives of a cooperation policy in the youth field as set out in the programme 'Youth for Europe` (Article 1(2)). It is intended, while respecting equal opportunities for men and women, to encourage mobility and solidarity among young people as part of active citizenship, to promote, and give them the chance of acquiring, informal educational experience in a variety of sectors of activity, which may be one of the foundations of their future development, and to promote, through their participation in transnational activities of benefit to the community, an active contribution on their part to the ideals of democracy, tolerance and solidarity in the context of European integration and to cooperation between the European Community and third countries.
Article 2
Framework, objectives and resources
1. This programme, based on intensified cooperation between the Member States, offers young people aged in principle between 18 and 25 an attested informal educational experience, at transnational level, involving both the acquisition of skills and abilities and the demonstration of responsible citizenship in order to help them to become actively integrated into society. Young people participating in the activities of this programme are hereinafter also referred to as 'young volunteers`.
2. In accordance with the general objectives set out in Article 1, the specific objectives of this programme shall be as follows:
(a) to encourage a spirit of initiative, creativity and solidarity among young people so as to enable them to become actively integrated into society and to contribute to the attainment of the objectives of the programme;
(b) to step up participation by young people legally resident in a Member State in long-term or short-term transnational activities of benefit to the community, within the Community or in third countries, in particular those with which the Community has concluded cooperation agreements. Those activities must not restrict or be a substitute for potential or existing paid employment;
(c) to promote recognition of the value of informal educational experience acquired in a European context;
(d) to facilitate access to the programme for all young people.
3. For this purpose, and in accordance with the general objectives set out in Article 1 and the specific objectives described in paragraph 2 of this Article, the main features of this programme, which are set out in detail in the Annex, shall be as follows:
(a) to support long-term or short-term transnational activities of benefit to the community, within the Community and in third countries;
(b) to support activities intended to foster partnerships based on European voluntary service and innovative network activities;
(c) to support measures and projects intended to further the follow-up of young volunteers, to build on the experience acquired by the latter in the context of European voluntary service and thus to promote their active integration into society;
(d) to develop and support appropriate preparation, particularly linguistic and intercultural, and the integration of young volunteers, 'mentors` and European project leaders so that young volunteers can benefit from high-quality projects connected with the objectives of the programme;
(e) to support the quality of all the programme's activities and the development of their European dimension and to contribute to cooperation in the youth field by supporting, wherever possible, Member States' endeavours to improve services and measures related to European voluntary service, particularly through measures to provide young people with information on the objectives of the programme and through studies and continuing evaluation through which, where appropriate, the detailed implementing rules and the approaches of the programme may be brought into line with any needs which might emerge.
Article 3
Financial provisions
1. The financial framework for the implementation of this programme for the period 1998-1999 is hereby set at ECU 47,5 million, in keeping with the current financial perspective.
2. The annual appropriations shall be authorised by the budgetary authority within the limits of the financial perspective.
Article 4
Access to the programme - positive action
1. Special attention shall be paid to ensuring that all young people can have access, without discrimination, to the programme's activities.
2. The Commission and the Member States shall ensure that special efforts are made for young people who experience the most difficulties in being included in existing action programmes at both Community and national, regional and local levels, owing to cultural, social, physical, economic or geographical reasons. To this end, they shall take into consideration the problems encountered by this target group.
Article 5
Participation by associated countries
This programme shall be open to the participation of the associated countries of Central and Eastern Europe (CCEE) in accordance with the Europe Agreements or the Additional Protocols, which have been, or are to be, concluded on the participation of those countries in Community programmes. This programme shall be open to the participation of Cyprus and Malta on the basis of additional appropriations under the same rules as apply to the EFTA countries participating in the European Economic Area, in accordance with the procedures to be agreed with those countries, without prejudice to the procedures to be completed for Malta's participation.
Article 6
Implementation, links with other measures and international cooperation
1. The Commission shall ensure the implementation of this programme.
2. The Commission and the Member States shall ensure that there is consistency and complementarity between measures to be implemented under this programme and other relevant Community programmes and initiatives, in particular 'Youth for Europe` and programmes offering the possibility of financing volunteer projects aimed at young volunteers from third countries, as well as measures undertaken by the Member States in this field.
3. The Commission and the Member States shall foster cooperation relating to this programme so as to allow complementarity of action with that of the competent international organisations, in particular the Council of Europe.
Article 7
Cooperation with Member States
1. The Commission and the Member States shall take such measures as they deem appropriate to develop the structures set up at Community and national level for achieving the objectives of the programme, for making the programme more accessible to young people and other partners at local level, for evaluating and monitoring the measures provided for in the programme and for applying consultation and selection mechanisms. In that context, the Commission and the Member States shall take steps to ensure that appropriate information is provided and volunteers are made aware of their rights and obligations at European, national and local level, and shall endeavour to make an active contribution to ensuring complementarity between European voluntary service activities and similar national activities of various kinds.
2. Each Member State shall endeavour, as far as possible, to adopt such measures as it deems necessary and desirable to ensure the proper functioning of the programme, in particular regarding the legal and administrative obstacles to the access of young people to the programme, obstacles to the transnational mobility of young volunteers and recognition of the specific nature of the situation of young volunteers.
Article 8
Attestation
A document, drawn up by the Commission in accordance with the procedure laid down in Article 9(2) and (3), shall attest to the participation of young volunteers in European Voluntary Service and to the experience and skills that they have acquired during the relevant period.
Article 9
Committee
1. In the implementation of this programme, the Commission shall be assisted by a committee composed of representatives of the Member States and chaired by the representative of the Commission.
2. The representative of the Commission shall submit to the committee a draft of the measures to be taken in respect of:
- the committee's rules of procedure,
- the implementing provisions,
- the annual plan of work for the implementation of the measures in the programme,
- the general balance between the various sections of the programme,
- the criteria for determining the indicative allocation of funds among the Member States,
- the document attesting to participation in European voluntary service,
- the procedures for monitoring and evaluating the programme.
The committee shall deliver its opinion on the draft within a time-limit which the chairman may lay down according to the urgency of the matter. 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 of the Member States within the committee shall be weighted in the manner set out in that Article. The chairman shall not vote.
The Commission shall adopt measures which apply immediately. However, if these measures are not in accordance with the opinion of the committee, they shall be communicated by the Commission to the Council forthwith. In that event:
- the Commission may defer application of the measures which it has decided for a period of two months from the date of such communication,
- the Council, acting by a qualified majority, may take a different decision within the time-limit referred to in the previous indent.
3. The Commission may consult the Committee on any other matters relating to the implementation of this programme.
In that case, the representative of the Commission shall submit to the Committee a draft of the measures to be taken. The Committee shall deliver its opinion on the draft within a time-limit which the Chairman may lay down according to the urgency of the matter, if necessary by taking a vote.
The opinion shall be recorded in the minutes; in addition, each Member State shall have the right to ask to have its position recorded in the minutes.
The Commission shall take the utmost account of the opinion delivered by the Committee. It shall inform the Committee of the manner in which its opinion has been taken into account.
Article 10
Monitoring and evaluation
1. On implementation of this Decision, the Commission shall take the necessary measures to ensure that the programme is monitored and continuously evaluated, taking account of the general and specific objectives referred to in Articles 1 and 2, the specific objectives defined in the Annex, the provisions laid down in Article 4 and any input provided by the Committee set up under Article 9.
2. The Commission shall submit in sufficient time to the European Parliament and to the Council a report taking account in particular of the results of Community youth-related measures and accompanied, if necessary, by appropriate proposals, particularly with a view to a consistent approach to youth-related measures looking forward to the year 2000.
Article 11
This Decision shall enter into force on the date of its publication in the Official Journal of the European Communities.
Done at Brussels, 20 July 1998
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COMMISSION REGULATION (EC) No 1598/2004
of 10 September 2004
prohibiting fishing for megrim by vessels flying the flag of Portugal
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Council Regulation (EEC) No 2847/93 of 12 October 1993 establishing a control system applicable to the common fisheries policy (1), and in particular Article 21(3) thereof,
Whereas:
(1)
Council Regulation (EC) No 2287/2003 of 19 December 2003 fixing for 2004 the fishing opportunities and associated fishing conditions for certain fish stocks and groups of fish stocks, applicable in Community waters and, for Community vessels, in waters where limitations in catch are required, lays down quotas for megrim for 2004 (2).
(2)
In order to ensure compliance with the provisions relating to the quantity limits on catches of stocks subject to quotas, the Commission must fix the date by which catches made by vessels flying the flag of a Member State are deemed to have exhausted the quota allocated.
(3)
According to the information received by the Commission, catches of megrim in the waters of ICES division VIIIc, sub-areas IX, X and CECAF 34.1.1 (EC waters) by vessels flying the flag of Portugal or registered in Portugal have exhausted the quota allocated for 2004. Portugal has prohibited fishing for this stock from 14 June 2004. This date should be adopted in this Regulation also,
HAS ADOPTED THIS REGULATION:
Article 1
Catches of megrim in the waters of ICES division VIIIc, sub-areas IX and X and CECAF 34.1.1 (EC waters) by vessels flying the flag of Portugal or registered in Portugal are hereby deemed to have exhausted the quota allocated to Portugal for 2004.
Fishing for megrim in the waters of ICES division VIIIc, sub-areas IX and X and CECAF 34.1.1 by vessels flying the flag of Portugal or registered in Portugal is hereby prohibited, as are the retention on board, transhipment and landing of this stock caught by the above vessels after the date of application of this Regulation.
Article 2
This Regulation shall enter into force on the day following its publication in the Official Journal of the European Union.
It shall apply from 14 June 2004.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
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COMMISSION DECISION of 12 December 1983 relating to a proceeding under Article 85 of the EEC Treaty (IV/30.525 - International Energy Agency) (Only the English, French and German texts are authentic) (83/671/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 Greece, and in particular Articles 4, 6 and 8 thereof,
Having regard to the notification and application for negative clearance submitted to the Commission on 5 January 1982 by the Chairman of the Industry Advisory Board of the International Energy Agency for the benefit of 32 oil companies which might be asked to participate in the carrying out of the International Energy Program in the event of its activation,
Having regard to the publication in the Official Journal of the European Communities (2) of the summary of the notification pursuant to Article 19 (3) of Regulation No 17,
After consultation with the Advisory Committee on Restrictive Practices and Dominant Positions,
Whereas:
I. THE FACTS (1) An agreement on an International Energy Program (hereinafter referred to as the IEP) was signed on 18 November 1974. Twenty-one countries, members of the OECD, now participate in the IEP. Nine Member States of the European Economic Community have signed the IEP, France being a non-signatory. The Community has not signed the IEP and the Commission has the status of observer with the International Energy Agency (hereinafter referred to as the IEA) an autonomous agency of OECD, responsible for carrying out the IEP. The Community has adopted measures aimed at regulating oil supply shortfalls at the Community level, which complement those adopted by the IEA.
(2) The objectives of the IEP as set out in its preamble are to take common effective measures to meet oil supply emergencies by developing an emergency self-sufficiency in oil supplies, restraining demand and allocating available oil among the participating countries on an equitable basis. A principle of solidarity has been established between the participating countries to ensure that the effects of supply cuts are evened out between them and that no country or group of countries will suffer disproportionately the consequences of supply disruptions, all as set out in the IEP.
(3) The IEP provides that the allocation process may be activated when one or more participating countries, or all the participating countries as a group, sustain a reduction of 7 % or more in the expected daily rate of oil supplies. Any reduction in the daily rate of oil supplies is likely to affect the participating countries differently. Some countries possess a large refinery capacity and thus mainly import crude oil, while other countries mainly import refined products. Some countries import only from one source, others from various sources or even have indigenous production. A country might be the subject to some form of embargo which might hamper the usual flow of oil to that country.
Because of these differences it would be necessary to find out in what degree the participating countries are affected by the supply disruptions, in order to establish which would have oil and/or products to share with other countries, and which would be entitled to receive oil. Each country's supply rights under the IEP would have to be established. (1) OJ No 13, 21.2.1962, p. 204/62. (2) OJ No C 199, 26.7.1983, p. 2.
Each country's supply right is calculated mathematically by the IEA. These supply rights are compared with overall available supplies in order to determine whether a country has an allocation right or an allocation obligation. If the overall supplies available to each country: - are less than the supply right, the country will have an allocation right, that is a right to receive an allocation from other countries' available supplies,
- exceed the supply right, the country will have an allocation obligation, that is an obligation to make its excess available to other participating countries.
The finding of the IEA Secretariat in regard to activation of the emergency allocation system is subject to review by the Governing Board of the IEA which consists of representatives of the governments of the participating countries. The allocation system has never been activated. It has, however, been tested at regular intervals.
(4) The companies
The IEP provides that an International Advisory Board (normally called the industry Advisory Board or IAB) from the oil industry shall be convened to assist the IEA in ensuring the effective operation of emergency measures. The IEA shall consult with oil companies to obtain their views regarding the situation and the appropriate measures to be taken. The objective is to draw on the expertise of the oil companies and their general knowledge about the world oil supply situation. Generally it can be said that the emergency allocation measures cannot be carried out without the assistance of the oil companies.
(5) The IAB has been established by the Governing Board of the IEA. The oil companies in the participating countries have been asked by the IEA and governments of participating countries to participate. At present, 16 oil companies and two associations of oil companies are members of the IAB. The oil companies are all members of the group of "reporting companies" of which there are approximately 46. Reporting companies, designated by the IEA, are to submit oil supply data on imports, exports, indigenous production, inventories, etc. to the IEA and national governments during an emergency and cooperate, voluntarily, with the IEA in allocation implementation. Their number is fixed from time to time and will be known when the emergency allocation system is activated. Non-reporting companies are asked by the participating countries to submit data to national governments, who transmit them to the IEA on an aggregated basis. Both reporting and non-reporting companies also assist in carrying out the allocation at a national level in accordance with national law. The exact number of non-reporting companies which might be asked to participate when the emergency allocation system is activated is not known in advance.
(6) An ad hoc group of the IAB is the Industry Supply Advisory Group (hereinafter referred to as ISAG). The members of ISAG consist of oil company employees with oil supply expertise. They coordinate the voluntary arrangement of supplies by reporting companies and National Emergency Sharing Organizations to direct the supplies for purposes of balancing the allocation rights and allocation obligations of participating countries. ISAG members will work for the IEA at the IEA headquarters in Paris on an ad hoc basis in all phases of the activation and deactivation of the allocation process. Detailed descriptions of the allocation sharing system and the involvement of oil companies have been adopted by the Governing Board.
(7) National Emergency Sharing Organizations (hereinafter referred to as NESOs), established on a stand-by basis in each participating country, are responsible for national oil emergency measures and for liaison with the IEA on matters of international allocation in an emergency. The structure of NESOs will differ from country to country, reflecting different oil supply and political structures, and may have differing involvement of oil industry personnel. Where necessary, NESOs combine governmental authority for national oil emergency management with operational coordination of the oil supply activities of companies operating nationally, both reporting and non-reporting. As regards non-reporting companies the NESO takes on certain operational functions vis-à-vis the IEA. NESOs submit to the IEA reporting company data on a disaggregated basis and, for the most part, non-reporting company data on an aggregated basis. They also carry out national fair sharing.
(8) The goods
The goods are crude oil, all petroleum products, all refinery feedstock, all finished products produced in association with natural gas and crude oil, and possibly synthetic fuels.
(9) The allocation process
The allocation process takes place in monthly cycles for as long as the emergency allocation system is activated, and embraces three types of activities which may take place at the same time: - Type 1 : Reporting companies and non-reporting companies will voluntarily and independently of any requests by the IEA rearrange their own supply arrangements, including exchanges and other commercial transactions with other oil companies, in response to the emergency situation. In this type of activity, these companies may take into account participating countries' allocation rights and obligations, projected oil supplies by country of origin, and other data supplied by the IEA;
- Type 2 : Reporting companies will voluntarily rearrange supplies - including transactions between companies - in response to IEA requests or solicitations to assist in balancing allocation rights and obligations of the participating countries. In so doing, they will be assisted by ISAG;
- Type 3 : If, in spite of the best voluntary efforts of the industry, additional actions to meet countries' supply rights are required, participating countries will establish what further action, are required and how they will be implemented. Such further action might include direct instructions from individual governments or NESOs to companies.
The allocation process may necessitate other activities relating to production, refining, distribution or transportation.
(10) Generally, Type 1 activities are normal commercial transactions between oil companies. Each company will establish its own independent emergency arrangements to share its available supplies with its affiliates and customers. On the whole this will merely reflect normal distribution patterns. However, when the companies concerned have taken account of allocation rights and obligations or other information supplied by the IEA in establishing and carrying out the transactions, this might present Type 2 characteristics.
(11) Type 2 activities involve action by oil companies to remedy the remaining imbalances. ISAG will evaluate the voluntary offers put forward by the reporting companies, the non-reporting companies via NESOs and by NESOs and may solicit further offers. The voluntary offers may be "closed-loop" offers where the companies involved in giving or receiving oil have been identified in advance. They mainly concern affiliated companies. Or the voluntary offers may be "open" offers, either to receive oil or to supply it. All these offers are specific as to the kind of crudes or products offered or required.
(12) The circumstances of any supply disruption cannot be foreseen precisely. Supply disruptions might affect participating countries differently. Not all countries use the same kind of crudes or products, and there are differences in refining capacities. Any embargoes might also affect countries differently. It is not possible before IEP activation to establish the amount of oil that will have to be reallocated under Type 2 or Type 3.
(13) ISAG will evaluate the voluntary offers it receives. In so doing it will take into account the special needs of each participating country. If the offers do not meet the requirements necessary to carry out the allocation adequately, ISAG may solicit alternative offers. In matching the open offers intensive exchange of information may take place between ISAG members, between ISAG and reporting companies, between ISAG and NESOs, between reporting companies and between NESOs, on the origin, quality, tanker and refinery capacity, storage capacity, pricing of oil as appropriate and other issues which prove necessary to carry out the allocation process. The object is to fulfil allocation rights and obligations, that is, to direct oil and/or products from countries with a surplus to countries with a deficit.
(14) The following is an example : Alpha Oil notifies ISAG that it has a part-cargo of 50 000 tons of Arabian Light crude oil, 34° API, three days out from North West Europe on open voluntary offer. The cargo was intended, before the crisis, for one of Alpha's United Kingdom refineries, but the United Kingdom has, in fact, after the activation of the allocation system, an allocation obligation. ISAG scrutinizes its detailed information about those countries in the system which have allocation rights and solicits voluntary buy offers until it finds a buyer needing crude of this particular quality, say Beta's refinery at Rotterdam, the Netherlands, a country having an allocation right. The offer is therefore matched, the Allocation Coordinator gives his approval, the price is arrived at between Alpha and Beta on commercial principles and the tanker carrying the crude delivers it to Beta at Rotterdam.
(15) ISAG will not be involved in the fixing of commercial terms for the reallocated oil. Companies will fix such terms between themselves once the offers have been matched by ISAG. However, in the case of open offers companies may elect to advise ISAG of the commercial terms, including prices, in order for ISAG to be able to solicit acceptances of the offers.
(16) When ISAG has made recommendations regarding the matching of the voluntary offers, the Allocation Coordinator, who is the Executive Director of the IEA either approves or disapproves. The Allocation Coordinator is responsible to the Emergency Group of the Standing Group on Emergency Questions (hereinafter referred to as the SEQ Emergency Group) for the supervision and guidance of the allocation process. The SEQ Emergency Group is a body of government representatives responsible to ensure intergovernmental agreement and/or consensus as regards decisions taken in implementation of the IEP during an emergency.
(17) If the Allocation Coordinator disapproves, ISAG will be asked to do a rematch. When the Allocation Coordinator approves the ISAG recommendation, ISAG will notify the reporting companies and governments accordingly. If ISAG is unable to match all offers because discrepancies of some kind persist, the Allocation Coordinator will take the matter to the SEQ Emergency Group and, if requested by the SEQ Emergency Group, the ISAG and the Allocation Coordinator will consult with the IAB. Government then establish what action is required and how it will be implemented. Such action constitutes Type 3 activity.
(18) The allocation process is deactivated when the shortfall of supplies has decreased or can reasonably be expected to decrease below 7 %. The Governing Board either approves of the IEA Secretariat finding on the subject matter, or decides to deactivate without such finding. Neither ISAG nor reporting companies or non-reporting companies will be asked to reallocate oil after deactivation.
(19) Members of the oil industry will be involved to some extent before the activation or without the actual activation of the emergency sharing system. Article 19 (6) of the IEP provides that the IEA Secretariat shall consult with oil companies to obtain their views regarding the overall supply situation and the appropriateness of the measures to be taken. Such consultation before or without activation of the emergency allocation system is considered necessary in view of the oil companies' knowledge of the market. Article 19 (7) contemplates that the IAB will be convened to assist the IEA in emergency allocation and such assistance could begin before actual activation of emergency measures. Article 55 (3) of the IEP specifies that the SEQ may consult with oil companies on any matter within its competence, and this could include consultation before or without activation of the emergency allocation system. Oil companies will also, in the event of a supply disruption, submit data to the IEA and to national governments such as that on imports, exports, indigenous production and inventories, at the request of the Executive Director of the IEA.
(20) The IEP emergency sharing system and the detailed rules adopted for its carrying out are tested by the IEA at regular intervals. Test runs involve company participation (both reporting and non-reporting companies, ISAG and NESOs) to the same extent as activated emergencies. The data base and other information so far used during test runs have been either historical or hypothetical and no real oil has been shared.
(21) A Dispute Settlement Centre has been created by the Governing Board. The purpose of the Centre is to provide, for consenting parties, facilities for arbitration of disputes between a seller and buyer of oil, or between the parties to an exchange of oil, arising out of an oil supply transaction during implementation of the IEP emergency allocation system. No award rendered by the Dispute Settlement Centre of the IEA, to which Article 85 may apply, is exempted by this Decision.
(22) No comments were received from third parties in response to the Commission's notice pursuant to Article 19 (3) of Regulation No 17.
II. LEGAL ASSESSMENT
A. Article 85 (1) of the EEC Treaty (23) Article 85 (1) prohibits, as incompatible with the common market, all agreements between undertakings, decisions by associations of undertakings and 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. These provisions are applicable in this case.
(24) The undertakings involved - reporting and non-reporting oil companies - are undertakings within the meaning of Article 85 (1).
(25) The consent of the oil companies to cooperate with one another and the IEA in the framework of the IEP and in the operation of the IEA emergency oil allocation system is a concerted practice. The IEP contemplates the assistance of oil companies in carrying out its emergency oil allocation system. Governments have laid down rules for this assistance and adopted the framework for the involvement of the companies. The object of that involvement is to arrive at a specific result, that is, the redistribution of oil and/or products to fulfil the participating countries' allocation rights and obligations. For this purpose company representatives will be gathered together to achieve the object through common effort. An extensive exchange of information will take place on origin of oil, quality, tanker and refinery capacity, storage capacity and other matters and company representatives will be exposed to data and information some of which is otherwise proprietary and confidential. This will be done under the assumption that all the participants will play their part to achieve the object of the IEP.
(26) The concerted practice may have the effect of distorting competition. The main objective of the IEP emergency oil allocation system is to allocate oil and/or products among the participating countries on an equitable basis if a shortfall occurs. An obligation of solidarity has been established among the participating countries to prevent one country or a group of countries from suffering disproportionately the consequences of oil supply disruption. Each country's supply right will be compared with available supplies to determine which countries will have a right to receive oil and which countries an obligation to share oil. The concertation between the oil companies has the object and effect of taking into account, in the case of some Type 1 transactions, and balancing, in the case of Type 2 and Type 3 transactions, allocation rights and obligations. This means in some cases directing oil to destinations where it would not have gone had the IEA system not been activated. This implies that the usual market processes may be set aside in order to bring about results different from those which unrestricted competition would bring about in a supply shortfall. The concertation between the oil companies will lead to conditions of competition which do not correspond to the conditions of the market which would otherwise exist.
The oil companies concerned remain competitors in an oligopolistic market. The concertation during an emergency within the framework of the IEA will cover exchanges of information of confidential and proprietary data which would not otherwise be given to competitors. Such exchanges of information may affect the subsequent market conduct of competitors. Some uncertainty about supply sources, storage and refinery capacities, tanker capacity and other issues may be removed. The oil companies' behaviour in the light of this may, in view of the market structure, alter the market conditions from what they would be without such exchanges of information.
The possible effects of these restrictions on competition will be appreciable. The undertakings start to concert on allocation actions only when a 7 % shortfall in oil supplies available to all IEA countries or to one of them has occurred or may reasonably be expected to occur. The monthly oil supply to the IEA as a whole is about 120 million tonnes. It is estimated that in case of activation between 10 and 15 million tonnes of oil will have to be redistributed each month. This would represent about 10 % of normal supplies. In case of some products or some countries the supply shortfall may be higher depending on the characteristics of the supply disruption. The entire market is concerned, as companies which will have to give up or receive oil will take their overall supply situation into account when forwarding offers and requests to ISAG.
(27) The concerted practice will affect trade between Member States. Allocating oil among countries signatory to an international agreement involves direct transactions across frontiers. The obligation of international solidarity among participating countries laid down in the IEP implies that oil companies in each of the participating countries will be affected and asked for assistance in one way or another in case of activation. The usual flow of oil supplies will be modified in order to meet allocation rights and obligations. Such rights and obligations relate to the individual participating countries and not to the companies involved. The joint effort of the oil companies to redistribute available oil will have an appreciable effect on trade between Member States.
B. Article 85 (3) of the EEC Treaty (28) Under Article 85 (3), the provisions of Article 85 (1) may be declared inapplicable in the case of any concerted practice which contributes to improving the production or distribution of goods or to promoting technical or economic progress, while allowing consumers a fair share of the resulting benefit, and which does not: (a) impose on the undertakings concerned restrictions which are not indispensable to the attainment of these objectives;
(b) afford such undertakings the possibility of eliminating competition in respect of a substantial part of the products in question.
(29) The concerted practice does contribute to improving the distribution of the relevant goods and to promoting economic progress.
The object of the concerted practice is to reallocate available oil supplies among the participating countries on an equitable basis as set out in the IEP. Because some countries might otherwise suffer more from supply disruptions than others it has been agreed to provide any country with a larger than average deficit with some degree of supply, taking normal supply and consumption patterns into account. This would not necessarily happen as a result of free market forces in a supply situation serious enough to activate the emergency oil allocation system. Only some kind of intervention in the market can secure this. This is the task of the oil companies. As a result of their concerted practice oil and/or oil products will be directed as far as is necessary to destinations where they might not otherwise have gone.
The restrictions on competition contained in the concerted practice of the oil companies are more likely than competition itself to achieve the aims of the IEP, namely a reduction of the inconvenience and a sharing of the difficulties.
(30) The concerted practice allows the consumer a fair share of the resulting benefit.
Because supply cuts are likely to affect the participating countries differently they are also likely to affect consumers differently. Consumers will benefit from the emergency oil allocation process the aim of which is to share available supplies among the participating countries. The consumers may not obtain the equivalent of usual supplies, but they will be assured that their country has proportionally equal supplies. Furthermore, the concerted practice can be expected to minimize the impact of the shortage on the general economy of the participating countries with immediate benefit to the consumers.
(31) The concerted practice does not impose on the undertakings concerned restrictions which are not indispensable to the attainment of these objectives.
The concerted practice which takes place both before and after the activation of the emergency allocation system or without the actual activation of the system is aimed at matching participating countries' allocation rights and obligations and redirecting oil and/or products as far as necessary for that purpose. The actions concerned are : consultations with oil companies before the activation of the allocation sharing as provided for in the IEP, or without the actual activation ; submission to the IEA and to national governments by the companies of data such as that on imports ; exports, indigenous production and inventories ; Type 1 transactions, to the extent to which Article 85 (1) may apply to them, when the companies concerned with such transactions have taken into account participating countries' allocation rights and obligations and have reported such transactions to the IEA and the Commission ; Type 2 transactions and Type 3 transactions to the extent to which Article 85 (1) may apply to them.
The extent to which exchanges of specific data and information are needed to carry out the abovementioned transactions and the extent to which it will be necessary to redirect oil and/or products will depend upon the magnitude and characteristics of the supply disruption and vary from case to case. No behaviour which is not necessary to carry out the allocation system is exempted by this Decision. No exchange of price information will occur except what is necessary for individual supply transactions, including those in which ISAG may participate through solicitation of acceptance of offers. Any use of confidential or proprietary information obtained as a result of participation in the emergency allocations process is prohibited after the deactivation of that process.
Neither the rules laid down by governments on the handling of the allocation process nor the concertation between companies to achieve the allocation needed go beyond what is necessary for the fulfilment of the objectives of the IEP. The changes in patterns of trade will be the minimum found necessary in the circumstances.
(32) The concerted practice does not afford the undertakings the possibility of eliminating competition in respect of a substantial part of the products in question.
In a situation of oil shortage, the usual market situation will change. Competitors will make efforts to secure their own supply arrangements using all available possibilities. The concerted practice which is intended to take care of the reallocation process is likely in practice to affect directly only about 10 % in total of normal supplies to the IEA countries. Although this percentage will depend on the nature of the supply disruption oil companies will take their overall supply situation into account when forwarding voluntary offers and requests to ISAG. Competition between the oil companies will continue in all other respects apart from their obligation to fulfil allocation rights and obligations. Even as far as Type 1 and Type 2 transactions are concerned the companies themselves will establish the commercial terms including prices of the oil and/or product to be delivered. Therefore the requirement of Article 85 (3) (b) is fulfilled.
(33) All the requirements of Article 85 (3) are therefore satisfied in respect of the oil companies' concertation in the event of a supply disruption prior to or without the activation of the IEP emergency sharing system as provided for in Article 19 (6) and (7) and Article 55 (3) of the IEP, and in respect of submission to the IEA and to national governments of data such as that on imports, exports, indigenous production and inventories ; and after activation in respect of continued consultation with the IEA and submission of data as well as their concertation with a view to implementing Types 1, 2 and 3 activities, both as to reporting and non-reporting companies, ISAG and NESOs, subject to the conditions and obligations of this Decision.
C. Article 8 of Regulation No 17 (34) In accordance with Article 8 (1) of Regulation No 17, a Decision in application of Article 85 (3) shall be issued for a specific period and conditions and obligations may be attached thereto. In addition, under Article 8 (2) of the said Regulation, the Commission has a duty to ensure that the requirements of Article 85 (3) continue to be satisfied.
(35) The concerted practice as notified qualifies for exemption. A long-term protection of consumer interests is needed. The Decision should thus remain in force for any activation of the IEP emergency sharing system which might occur during a period of 10 years. At the end of that period the Decision will be reviewed.
(36) Conditions on the oil market are constantly changing. The rules governing the participation of the oil companies in the allocation process are modified at regular intervals by the Governing Board to take account of that. Four test runs of these rules have taken place so far. Experience gained during those test runs also leads to modifications of the rules. It is important that the Commission be informed immediately of any such changes in order for it to assess whether the conditions for an Article 85 (3) Decision are still fulfilled.
(37) The Commission must be informed about consultations with oil companies with a view to activation of the IEP, any activated emergency or any test run of the IEP emergency oil allocation system. It must have access for representatives of the Commission to allocation sharing or test runs, to all documents or other information available in connection with sharing procedures or test runs and to meetings attended by industry representatives relating to the emergency oil allocation system or test runs,
HAS ADOPTED THIS DECISION:
Article 1
1. The provisions of Article 85 (1) of the EEC Treaty are, pursuant to Article 85 (3), hereby declared inapplicable to all concerted practices between all oil companies, reporting and non-reporting, to which this Decision applies and which are necessary to carry out the emergency oil allocation system of the International Energy Program. In particular, Type 1 activities are hereby exempted, to the extent to which Article 85 (1) may apply to them, only where the companies which are parties to such activities take into account participating countries' allocation rights and obligations or other information supplied by the International Energy Agency and report such activities to the International Energy Agency and the Commission. All Type 2 activities are exempted. Type 3 activities are exempted to the extent to which Article 85 (1) may apply to them.
2. The provisions of Article 85 (1) are, pursuant to Article 85 (3), hereby declared inapplicable to all concerted practices between all oil companies, reporting and non-reporting, to which this Decision applies and which are necessary for the purposes of: (a) consultations with oil companies prior to or without activation of the system provided for in Article 19 (6) and (7) and Article 55 (3) of the International Energy Program ; or
(b) submission to the International Energy Agency and to national governments by the companies of data such as that on imports, exports, indigenous production and inventories, at the request of the Executive Director of the International Energy Agency in connection with the consultations referred to in point (a) or in the event of a supply disruption ; or
(c) test runs of the emergency oil allocation system or test runs of the emergency data system organized by the International Energy Agency.
3. The exemption hereby granted shall apply to the concerted practices of the Industry Supply Advisory Group and its subgroups, and of reporting and non-reporting oil companies, including their participation and that of their employees in the work of National Emergency Sharing Organizations, in so far as such concertation may be necessary to carry out the emergency oil allocation system of the International Energy Program. The exemption shall apply to concertation during meetings of the Industry Advisory Board and subcommittees for the purposes of the pre-emergency consultations provided for in Article 19 (6) and (7), and Article 55 (3) of the International Energy Program and to meetings of any of the foregoing during an emergency and during test runs of the emergency oil allocation system or of the emergency data system.
Article 2
The exemption hereby granted shall not apply to: 1. Any exchange of price information, except in so far as necessary for negotiation of individual bilateral transactions;
2. Concerted practices which are not necessary to carry out the emergency oil allocation system of the International Energy Program;
3. Concerted practices at a time when the emergency oil allocation system is not in operation, with the exception of the consultations held prior to or without activation of the system and provided for in Article 19 (6) and (7) and Article 55 (3) of the International Energy Program, submission to the International Energy Agency and to national governments by the companies of data such as that on imports, exports, indigenous production and inventories, and concerted practices for the purpose of test runs of the said system or test runs of the emergency data system.
Article 3
The exemption shall be granted subject to the obligation that the Commission be informed at the earliest possible moment by the oil companies to which this Decision is addressed or by any representative nominated by the Industry Advisory Beard of: 1. Any changes adopted by the Governing Board or National Emergency Sharing Organizations to the rules governing the emergency oil allocation system and the participation of oil companies therein;
2. Any consultations with oil companies provided for in Article 19 (6) und (7) or Article 55 (3) of the International Energy Program or submission by the companies to the International Energy Agency or national governments pursuant to the foregoing rules of data such as that on imports, exports, indigenous production and inventories;
3. The declaration of the beginning of any emergency;
4. Any proposals or arrangements for a test run of the emergency oil allocation system or of the data system.
The exemption shall be granted subject to the obligation that the Commission shall have access for its representatives to any consultations with oil companies provided for in Article 19 (6) and (7) or Article 55 (3) of the International Energy Program which may take place, and to any meetings of the Industry Supply Advisory Group or its subgroups or of the Industry Advisory Board or its subcommittees which may take place when the emergency oil allocation system is being implemented or when test runs are being carried out. The Commission's representatives shall have made available to them upon request all documents and other information in connection with such consultations, meetings and test runs in the possession or under the control of any company to which this Decision applies, and all documents and other information in such possession or control in connection with Type 2 and Type 3 activities and with Type 1 activities that are reported to the Commission.
Article 4
This Decision shall apply to the oil companies to which it is addressed. It shall also apply to any oil company which may be asked by the International Energy Agency or by any government or National Emergency Sharing Organization to participate in the emergency oil allocation system, in any consultations provided for by Article 19 (6) and (7) and Article 55 (3) of the International Energy Program, or in any test run of the emergency oil allocation system, or the emergency data system, or to provide any information for the purpose of the emergency oil allocation system or of any such consultation or test run, and to any company under the control of any such company, or which controls any such company, or which is under the same control as such company.
Article 5
This Decision shall apply with effect from 5 January 1982 until 31 December 1993.
This Decision is addressed to the following oil companies:
Atlantic Richfield Company, Arco Petroleum Products Company, 515 South Flower Street, Los Angeles, CA 90071, USA
The British National Oil Corporation, 29 Bolton Street, London W1Y 8BN, England
British Petroleum Company PLC, Britannic House, Moor Lane, London EC2Y 9BU, England
Cities Service Company, 110 West Seventh Street, PO box 300, Tulsa, OK 74102, USA
Conoco Inc., 1007 Market Street, Wilmington, DE 19898, USA
Daikyo Oil Co., Ltd, Jyowa-Yaesu Building, 4-1 Yaesu, 2-Chome, Chuo-ku, Tokyo 104, Japan
Exxon Corporation, 1251 Avenue of the Americas, New York, NY 10020, USA
Gulf Oil Corporation, Gulf Trading & Transportation Co., PO box 3726, Houston, TX 77001, USA
Hispanica de Petroleos, SA (Hispanoil), Pez Volador, 2, Madrid 30, Spain
Idemitsu Kosan Co., Ltd, 1-1, 3-Chome, Marunouchi, Chiyoda-ku, Tokyo 100, Japan
Mabanaft GmbH, Kattrepelsbrücke 1, D-2000 Hamburg 1, Federal Republic of Germany
Maruzen Oil Co., Ltd, 6-1-20, Akasaka, Minato-ku, Tokyo 107, Japan
Mobil Oil Corporation, 150 East 42nd Street, New York, NY 10017, USA
Murphy Oil Company, 200 Jefferson Avenue, El Dorado, AR 71730, USA
Nippon Mining Co., Ltd, 10-1, Toranomon, 2-Chome, Minato-ku, Tokyo 107, Japan
Occidental Petroleum Corp., PO box 1183, Houston, TX 77001, USA
Petrofina SA, 33, rue de la Loi, B-1040 Brussels, Belgium
Petroleos de Portugal, EP (Petrogal), Avenue Fontes Pereira de Melo 6-2, 1000 Lisboa, Portugal
Phillips Petroleum, 252 Phillips Building Annex, Bartlesville, OK 74004, USA
Saarbergwerke AG, Hafenstraße 25, 6600 Saarbrücken, Federal Republic of Germany
Shell International Petroleum Co., Ltd, Shell Centre, London SE1 7NA, England
Standard Oil Company of California, 225 Bush Street, San Francisco, CA 94104, USA
Standard Oil Company (Indiana), 200 East Randolph Drive, PO box 5910A, Chicago, IL 60680, USA
Standard Oil Company of Ohio, Sohio Supply Company, 1000 Midland Building, Cleveland, OH 44115, USA
Statoil, Breidablikkveien 3, Mariero, PO box 300, N-4001 Stavanger, Norway
Sun Company, 100 Matsonford Road, Radnor, PA 19087, USA
Svenska Petroleum AB, Wahrendorffsgatan 4, Box 16101, S-103 23 Stockholm, Sweden
Texaco Inc., 2000 Westchester Avenue, White Plains, NY 10650, USA
Union Rheinische Braunkohlen Kraftstoff AG, 5047 Wessling, Postfach 8, Federal Republic of Germany
Union Oil Company of California, Union Oil Center, 461 South Boylston Street, PO box 7600, Los Angeles, CA 90051, USA
Veba Öl AG, Pawikerstraße 30, D-4660 Gelsenkirchen-Buer, Federal Republic of Germany
Wintershall AG, Friedrich-Ebert-Straße 160, 3500 Kassel, Postfach 10 40 20, Federal Republic of Germany
Done at Brussels, 12 December 1983. | [
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COMMISSION DECISION of 20 December 1995 refusing Germany's application for protective measures with regard to pharmaceutical products coming from Spain (Only the German text is authentic) (96/320/EC)
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to the Act of Accession of Spain and Portugal, and in particular Article 379 thereof,
Having regard to the application by Germany,
Whereas Germany, by letter of 29 September 1995, applied to the Commission for authorization to invoke Article 379 of the Act of Accession for safeguard measures, aimed at solving the problem caused by the expiry of the transitional period provided for by Article 47 of the Act of Accession, concerning pharmaceutical products coming from Spain, which are protected in Germany by a product patent but not in Spain;
Whereas in their request, the German authorities provided the Commission with the material facts to enable it to evaluate the validity of the application;
Whereas the German authorities base their application upon the economic difficulties to which the pharmaceutical products market in Germany would, according to them, be subjected as a result of the expiry of the transitional period provided for by Article 47 of the Act of Accession, namely as from 7 October 1995; whereas the specialists argue that since the price of pharmaceuticals on the Spanish market is lower by 50 to 75 % than the observed price for the same speciality products on the German market, the expiry of the transitional period will lead to an appreciable increase in parallel imports from Spain into Germany;
Whereas Article 379 of the Act of Accession derogates from a fundamental principle of the EC Treaty, that of the free movement of goods; whereas consequently in accordance with the well-established case-law of the Court of Justice it should be restrictively interpreted;
Whereas consequently, in accordance with that case-law and with the established practice of the Commission in the past, Article 379 of the Act of Accession cannot apply;
Whereas the purpose of Article 379 is to rectify and adjust to the economy of the common market a given economic sector experiencing economic difficulties which are serious and liable to persist;
Whereas an analysis of the economic data provided by the German authorities has shown that the conditions for the application of Article 379 are not fulfilled; whereas, more particularly, it has revealed that the German pharmaceutical industry is not experiencing economic difficulties which are serious and liable to persist; whereas an increase in the volume of imports coming from Spain of pharmaceutical products patented in Germany but not in Spain would not appear to be so significant in the long run as to bring about, by itself, serious economic difficulties on the German pharmaceutical market,
HAS ADOPTED THIS DECISION:
Article 1
The application for safeguard measures made by Germany under Article 379 of the Act of Accession, aimed at solving the problem caused by the expiry of the transitional period provided for by Article 47 of the Act of Accession, concerning pharmaceutical products coming from Spain, which are protected by a product patent in Germany but not in Spain, is rejected.
Article 2
This Decision is addressed to the Federal Republic of Germany.
Done at Brussels, 20 December 1995. | [
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THIRD COUNCIL DIRECTIVE of 19 December 1978 on the harmonization of provisions laid down by law, regulation or administrative action relating to the rules governing turnover tax and excise duty applicable in international travel (78/1032/EEC)
THE COUNCIL OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Economic Community, and in particular Article 99 thereof,
Having regard to the proposal from the Commission (1),
Having regard to the opinion of the European Parliament (2),
Having regard to the opinion of the Economic and Social Committee (3),
Whereas the action in respect of tax exemptions granted to individuals in international travel should be continued so that people in the Member States become more aware of the reality of the common market;
Whereas travel between Member States should be facilitated by an increase in exemptions from turnover tax and excise duty, the amounts of which, as fixed by Directive 69/169/EEC (4), as amended by Directive 72/230/EEC (5), have moreover been reduced, in real terms, by the rise in the cost of living in the Community as a whole;
Whereas the introduction of the European unit of account in the legal acts adopted by the institutions of the European Communities in the field of tax exemptions must not have the effect of reducing the amounts expressed in national currency at present eligible for exemption;
Whereas the rules governing tax remission at the retail stage should be harmonized in order to prevent instances of double taxation such as those resulting from the current provisions;
Whereas on account of the present economic situation a temporary derogation concerning both the unit value of goods to be imported into the Kingdom of Denmark and into Ireland and the quantitative restriction on still wines to be imported into the Kingdom of Denmark should be granted,
HAS ADOPTED THIS DIRECTIVE:
Article 1
Article 2 of Directive 69/169/EEC is hereby amended as follows: (a) Paragraph 1 shall be replaced by the following:
"1. Exemption from turnover tax and excise duty on imports shall apply to goods contained in the personal luggage of travellers coming from Member States of the Community provided that they fulfil the conditions laid down in Articles 9 and 10 of the Treaty, have been acquired subject (1)OJ No C 31, 8.2.1977, p. 5. (2)OJ No C 133, 6.6.1977, p. 44. (3)OJ No C 114, 11.5.1977, p. 33. (4)OJ No L 133, 4.6.1969, p. 6. (5)OJ No L 139, 17.6.1972, p. 28.
to the general rules governing taxation on the domestic market of one of the Member States and have no commercial character and that the total value of the goods does not exceed 180 European units of account per person."
(b) In paragraph 2, "30 units of account" shall be replaced by "50 European units of account".
(c) In paragraph 3, "125 units of account" shall be replaced by "180 European units of account".
(d) The following paragraphs shall be added:
"4. Where the travel referred to in paragraph 1: - involves transit through the territory of a third country ; overflying without landing shall not, however, be regarded as transit within the meaning of this Directive,
- begins in a part of the territory of another Member State in which turnover tax and/or excise duty is not chargeable on goods consumed within that territory,
the traveller must be able to establish that the goods transported in his luggage have been acquired subject to the general conditions governing taxation on the domestic market of a Member State and do not qualify for any refunding of turnover tax and/or excise duty, failing which Article 1 shall apply.
5. Under no circumstances may the total value of the goods exempted exceed the amount provided for in paragraph 1 or 2."
Article 2
Article 4 of Directive 69/169/EEC is hereby amended as follows: (a) In paragraph 1 (b), second indent, column II "to a total of three litres" shall be replaced by "to a total of four litres".
(b) Paragraph 2 shall be replaced by the following:
"2. Exemption of the goods mentioned in paragraph 1 (a) and (b) shall not be granted to travellers under 17 years of age.
Exemption for the goods mentioned in paragraph 1 (d) shall not be granted to travellers under 15 years of age."
(c) The following paragraphs shall be added:
"4. Where the travel referred to in Article 2 (1): - involves transit through the territory of a third country ; overflying without landing shall not, however, be regarded as transit within the meaning of this Directive,
- begins in a part of the territory of another Member State in which turnover tax and/or excise duty is not chargeable on goods consumed within that territory,
the traveller must be able to establish that the goods transported in his luggage have been acquired subject to the general conditions governing taxation on the domestic market of a Member State and do not qualify for any refunding of turnover tax and/or duty, failing which the quantities set out in paragraph 1, column I, shall apply.
5. Under no circumstances may the total quantity of goods exempted exceed the quantities provided for in paragraph 1, column II."
Article 3
Article 6 of Directive 69/169/EEC is hereby amended as follows: (a) Paragraph 2 shall be replaced by the following:
"2. Without prejudice to rules relating to sales made at airport shops under customs control and on board aircraft, Member States shall take the necessary steps with regard to sales at the retail stage to permit in the cases and under the conditions provided for in paragraphs 3 and 4 the remission of turnover tax on deliveries of goods carried in the personal luggage of travellers leaving a Member State. No remission may be granted in respect of excise duty."
(b) The third subparagraph of paragraph 3 shall be replaced by the following:
"Member States may exclude their residents from the benefit of this tax remission."
Article 4
Article 7 of Directive 69/169/EEC shall be replaced by the following:
"Article 7
1. For the purposes of this Directive, "European unit of account" (EUA) shall be as defined in the Financial Regulation of 21 December 1977 (1).
2. The EUA equivalent in national currency which shall apply for the implementation of this Directive shall be fixed once a year. The rates applicable shall be those obtaining on the first working day of October with effect from 1 January of the following year.
3. Member States may round off the amounts in national currency resulting from the conversion of the amounts in EUA provided for in Articles 1 and 2, provided such rounding-off does not exceed 2 EUA.
4. Member States may maintain the amounts of the exemptions in force at the time of the annual adjustment provided for in paragraph 2 if, prior to the rounding-off provided for in paragraph 3, conversion of the amounts of the exemptions expressed in EUA would result in a change of less than 5 % in the exemption expressed in national currency.
(1)OJ No L 356, 31.12.1977, p. 1."
Article 5
1. By way of derogation from Article 2 (1) of Directive 69/169/EEC, as amended by Article 1 (a) of this Directive: - the Kingdom of Denmark may, until 31 December 1981, exclude from tax exemption goods whose unit value is in excess of 135 EUA,
- Ireland may, until 31 December 1983, exclude from tax exemption goods whose unit value is in excess of 77 EUA.
2. During the period of implementation of the derogations referred to in paragraph 1, the other Member States shall take the necessary steps to permit the remission of tax, in accordance with the procedures referred to in Article 6 (4) of Directive 69/169/EEC, on goods imported into the Kingdom of Denmark and into Ireland which are excluded from exemption in those countries.
3. By way of derogation from Article 4 (1) (b) of Directive 69/169/EEC, as amended by Article 2 (a) of this Directive, with regard to the import of still wines with exemption from turnover tax and excise duty, the Kingdom of Denmark may maintain, until 31 December 1983, the quantitative limit of three litres.
Article 6
1. Member States shall bring into force the measures necessary to comply with this Directive no later than 1 January 1979.
2. Member States shall inform the Commission of the provisions which they adopt to implement this Directive. The Commission shall inform the other Member States thereof.
Article 7
This Directive is addressed to the Member States.
Done at Brussels, 19 December 1978. | [
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COMMISSION REGULATION (EC) No 13/2005
of 6 January 2005
implementing Regulation (EC) No 1177/2003 of the European Parliament and of the Council concerning Community statistics on income and living conditions (EU-SILC) as regards the list of target secondary variables relating to ‘social participation’
(Text with EEA relevance)
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Regulation (EC) No 1177/2003 of the European Parliament and the Council of 16 June 2003 concerning Community statistics on income and living conditions (EU-SILC) (1), and in particular Article 15(2)(f) thereof,
Whereas:
(1)
Regulation (EC) No 1177/2003 established a common framework for the systematic production of Community statistics on income and living conditions, encompassing comparable and timely cross-sectional and longitudinal data on income and on the level and composition of poverty and social exclusion at national and European Union levels.
(2)
Under Article 15(2)(f) of Regulation (EC) No 1177/2003, implementing measures are necessary for the list of target secondary areas and variables to be included every year in the cross-sectional component of EU-SILC. For 2006, the list of target secondary variables included in the module ‘Social participation’, (which relates particularly to participation in cultural events, integration with relatives, friends and neighbours, and participation in formal and informal activities) should be set out, together with variable codes and definitions.
(3)
The measures provided for in this Regulation are in accordance with the opinion of the Statistical Programme Committee,
HAS ADOPTED THIS REGULATION:
Article 1
The list of target secondary variables, the variable codes, and the definitions for the 2006 Module for ‘social participation’ to be included in the cross-sectional component of Community statistics on income and living conditions (EU-SILC) shall be as laid down in the Annex.
Article 2
This Regulation shall enter into force on the 20th 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 January 2005. | [
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COMMISSION REGULATION (EC) No 1189/2006
of 3 August 2006
amending for the 66th time Council Regulation (EC) No 881/2002 imposing certain specific restrictive measures directed against certain persons and entities associated with Usama bin Laden, the Al-Qaida network and the Taliban, and repealing Council Regulation (EC) No 467/2001
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Council Regulation (EC) No 881/2002 of 27 May 2002 imposing certain specific restrictive measures directed against certain persons and entities associated with Usama bin Laden, the Al-Qaida network and the Taliban, and repealing Council Regulation (EC) No 467/2001 prohibiting the export of certain goods and services to Afghanistan, strengthening the flight ban and extending the freeze of funds and other financial resources in respect of the Taliban of Afghanistan (1), and in particular Article 7(1), first indent, thereof,
Whereas:
(1)
Annex I to Regulation (EC) No 881/2002 lists the persons, groups and entities covered by the freezing of funds and economic resources under that Regulation.
(2)
On 25 July 2006, the Sanctions Committee of the United Nations Security Council decided to amend the list of persons, groups and entities to whom the freezing of funds and economic resources should apply. Annex I should therefore be amended accordingly,
HAS ADOPTED THIS REGULATION:
Article 1
Annex I to Regulation (EC) No 881/2002 is hereby amended as set out in the Annex to this Regulation.
Article 2
This Regulation shall enter into force on the day following its publication in the Official Journal of the European Union.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 3 August 2006. | [
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*****
COUNCIL DECISION
of 18 July 1988
on the conclusion of an Agreement in the form of an Exchange of Letters between the European Economic Community and the Republic of India on the guaranteed prices for cane sugar for the 1987/1988 delivery period
(89/193/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 implementation of the Agreement between the European Economic Community and the Republic of India on cane sugar (1) is carried out, in accordance with Article 1 (2) thereof, within the framework of the management of the common organization of the sugar market;
Whereas it is appropriate to approve the Agreement in the form of an Exchange of Letters between the European Economic Community and the Republic of India on the guaranteed prices for cane sugar for the 1987/1988 delivery period,
HAS DECIDED AS FOLLOWS:
Article 1
The Agreement in the form of an Exchange of Letters between the European Economic Community and the Republic of India on the guaranteed prices for cane sugar for the 1987/1988 delivery period is hereby approved on behalf of the Community.
The text of the Agreement is attached to this Decision.
Article 2
The President of the Council is hereby authorized to designate the person empowered to sign the Agreement in order to bind the Community.
Article 3
This Decision shall be published in the Official Journal of the European Communities.
Done at Brussels, 18 July 1988. | [
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COMMISSION REGULATION (EC) No 488/2005
of 21 March 2005
on the fees and charges levied by the European Aviation Safety Agency
(Text with EEA relevance)
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Regulation (EC) No 1592/2002 of the European Parliament and of the Council of 15 July 2002 on common rules in the field of civil aviation and establishing a European Aviation Safety Agency (1), and in particular Article 53(1) thereof,
After consulting the Management Board of the European Aviation Safety Agency,
Whereas:
(1)
The revenues of the European Aviation Safety Agency (hereinafter the Agency) consist of a contribution from the Community and from any European third country which has entered into the agreements referred to in Article 55 of Regulation (EC) No 1592/2002, the fees paid by applicants for certificates and approvals issued, maintained or amended by the Agency, and charges for publications, handling of appeals, training and any other service provided by the Agency.
(2)
The Agency’s revenue and expenditure should be in balance.
(3)
Fees and charges referred to in this Regulation should be demanded and levied by the Agency only, in euro. They should be set in a transparent, fair and uniform manner.
(4)
The fees levied by the Agency should not jeopardise the competitiveness of the European industries concerned. Furthermore, they should be established on a basis which takes due account of the ability of small undertakings to pay. Moreover, the geographical location of the undertakings in the territories of the Member States should not be a discriminatory factor.
(5)
The applicant should be informed, as far as possible, of the foreseeable amount to be paid for the service which will be provided and the way in which payment must be made before provision of the service starts. The criteria for determining the amount to be paid should be clear, uniform and public. Where it is impossible to determine this amount in advance, the applicant should be informed accordingly before provision of the service starts. In such a case, clear rules for assessing the amount to be paid during the provision of the service should be agreed before it is provided.
(6)
The amount of the fees to be paid by the applicant should depend on the complexity of the task carried out by the Agency and the workload involved.
(7)
The industry should enjoy good financial visibility and be able to anticipate the cost of the fees it will be required to pay. At the same time, it is necessary to ensure a balance between overall expenditure incurred by the Agency in carrying out certification tasks and overall income from the fees it levies. It should therefore be possible to review the levels of fees annually on the basis of the Agency’s financial results and forecasts.
(8)
The measures provided for in this Regulation are in accordance with the opinion of the Committee established by Article 54(1) of Regulation (EC) No 1592/2002,
HAS ADOPTED THIS REGULATION:
CHAPTER I
GENERAL PROVISIONS
Article 1
This Regulation shall apply to the fees and charges levied by the European Aviation Safety Agency (hereinafter the Agency) as compensation for the services it provides, including the supply of goods.
It determines in particular the matters for which fees and charges referred to in Article 48(1) of Regulation (EC) No 1592/2002 are due, the amount of those fees and charges and the way in which they are to be paid.
Article 2
For the purposes of this Regulation, the following definitions shall apply:
(a)
‘charges’ means the amounts levied by the Agency and payable by applicants for services, other than certification tasks, provided by the Agency;
(b)
‘fees’ means the amounts levied by the Agency and payable by applicants to obtain, maintain or amend the certificates and approvals referred to in Article 15 of Regulation (EC) No 1592/2002 which are issued, maintained or amended by the Agency;
(c)
‘certification tasks’ means all activities carried out by the Agency directly or indirectly for the purposes of issuing, maintaining or amending the certificates and approvals referred to in Article 15 of Regulation (EC) No 1592/2002;
(d)
‘applicant’ means any natural or legal person requesting to benefit from a service provided by the Agency, including the maintenance or amendment of a certificate or an approval;
(e)
‘direct costs’ means the wage bills of the staff directly involved in the certification tasks and the transport costs of such staff in the context of certification tasks;
(f)
‘specific costs’ means the costs of accommodation and meals, the incidental expenses and the travel allowances paid to staff in the context of certification tasks;
(g)
‘indirect costs’ means the share of the Agency’s general costs attributable to the performance of certification tasks, including those resulting from development of part of the regulatory material;
(h)
‘real cost’ means the expenditure actually incurred by the Agency;
(i)
‘regulatory material’ means any documentation drawn up by the Agency pursuant to Article 14(2) of Regulation (EC) No 1592/2002.
CHAPTER II
CHARGES
Article 3
Charges shall be levied by the Agency for all services, including the supply of goods, which it provides to applicants, except for:
(a)
certification tasks;
(b)
the transmission of documents and information, in whatever form, pursuant to Regulation (EC) No 1049/2001 of the European Parliament and of the Council (2);
(c)
the documents available free of charge on the Agency website.
The Agency shall also levy charges when an appeal is lodged against one of its decisions pursuant to Article 35 of Regulation (EC) No 1592/2002.
Article 4
1. The amount of the charges levied by the Agency shall be equal to the real cost of the service provided, including the cost of making it available to the applicant.
2. The charges payable when an appeal is lodged pursuant to Article 35 of Regulation (EC) No 1592/2002 shall take the form of a fixed-rate sum, the amount of which is specified in the Annex. If the appeal is concluded in favour of the person lodging the appeal, the fixed-rate sum shall be automatically refunded by the Agency to that person.
3. The amount of the charges shall be expressed in euro. It shall be communicated to the applicant before the service is provided, together with the terms for the payment of the charges.
Article 5
The charges shall be payable by the applicant or, where appropriate, the person lodging an appeal.
They shall be payable in euro.
In the absence of contractual agreement to the contrary, the charges shall be levied before the service is provided or, where appropriate, before the appeal procedure is launched.
CHAPTER III
FEES
Article 6
1. The fees shall ensure a total revenue which is sufficient to cover all the costs, direct, indirect and specific, arising out of the certification tasks, including costs arising from the related continuing oversight.
2. The Agency shall distinguish among its revenue and expenditure those which are attributable to certification tasks.
For this purpose:
(a)
the fees levied by the Agency as compensation for certification tasks shall be kept in a separate account and shall be the subject of a separate accounting procedure;
(b)
the Agency shall draw up analytical accounts of its revenue and expenditure; for each item of expenditure listed in the budget nomenclature, a scale shall be used to determine the proportion of that expenditure attributable to certification tasks.
3. The fees shall be the subject of an overall provisional estimate at the beginning of each financial year. This estimate shall be based on the Agency’s previous financial results, its estimate of expenditure and revenue and its forward working plan.
4. In order to avoid any discrimination between undertakings situated in the territories of the Member States, the transport costs related to the certification tasks carried out on behalf of such undertakings shall be aggregated and uniformly divided between the applicants.
5. The Annex shall be re-examined, and revised if necessary, within 14 months following the date of entry into force of this Regulation. It may be revised annually thereafter.
The amounts and coefficients set out in the Annex shall be published in the Agency’s official publication.
Article 7
The fees shall consist of one or more of the following elements:
(a)
a fixed part, the amount of which shall vary according to the complexity of the task carried out by the Agency; the different values of the fixed part and of the coefficients which affect them are set out in the Annex;
(b)
a variable part proportional to the workload involved, expressed as a number of hours multiplied by an hourly rate calculated in accordance with Article 9(2); the amount of the hourly rate is specified in the Annex;
(c)
the amount equal to the specific costs arising out of a certification task, which shall be recovered in full at real cost.
Article 8
1. The fees shall be established at levels such that:
Σ R = x D
where:
Σ R
=
annual amount of fees levied by the Agency
D
=
annual expenditure included in the Agency’s budget
x
=
percentage of annual expenditure directly or indirectly attributable to certification tasks.
2. During the transitional period referred to in the second subparagraph of Article 53(4) of Regulation (EC) No 1592/2002, part of the contribution referred to in Article 48(1)(a) of that Regulation may be used, if necessary, to cover costs incurred by the Agency for certification tasks. In such a case, the fees shall be established during that period in such a way that:
Σ R = xD - Cp
where:
Cp
=
share of the contribution referred to in Article 48(1)(a) of Regulation (EC) No 1592/2002 used to finance certification tasks carried out by the Agency.
From 1 January 2008 at the latest, Cp = 0.
Article 9
1. The amount of the fee shall depend on the complexity of the certification task and the workload involved. It shall be determined according to the following formula:
R = F + (nh * t) + S
where:
R
=
fee due
F
=
fixed part, depending on the kind of operation carried out (see Annex)
nh
=
number of hours invoiced (if applicable, see Annex)
t
=
hourly rate (if applicable, see Annex)
S
=
specific costs
2. The hourly rate (t) shall be determined by the overall annual wage bill of the Agency’s staff directly involved in the certification tasks. It shall be determined according to the following formula:
t = Cs/N
where:
Cs
=
overall annual wage bill (salaries, pension contributions and social security contributions) of the Agency’s staff directly involved in the certification tasks.
N
=
annual sum of the working hours of the Agency’s staff directly involved in the certification tasks.
Article 10
Without prejudice to Article 9, where a certification task is conducted, fully or in part, outside the territories of the Member States, the fee invoiced to the applicant shall include the costs of transport outside those territories. For that task, or part thereof, the amount of the fee due shall be determined according to the formula:
R = F + (nh * t) + S + V
where:
R
=
fee due
F
=
fixed part, depending on the kind of operation carried out (see Annex)
nh
=
number of hours invoiced (if applicable, see Annex)
t
=
hourly rate (if applicable, see Annex)
S
=
specific costs
V
=
additional transport costs
The additional transport costs invoiced to the applicant shall include the real costs of transport outside the territories of the Member States and the time spent by experts in those means of transport which shall be invoiced at the hourly rate.
Article 11
At the request of the applicant, a certification task may be carried out in a special way, with the agreement of the Executive Director.
In such a case, the certification task shall be carried out in the following way:
(a)
by assigning categories of staff to it which the Agency would not normally assign to it under its standard procedures, and/or
(b)
by assigning such human resources to it that the operation is performed faster than under the Agency’s standard procedures.
In such a case, an exceptional increase shall be applied to the fee levied in order to cover all of the costs incurred by the Agency in meeting the special request.
Article 12
1. The fee shall be payable by the applicant. It shall be payable in euro.
2. The issue, maintenance or amendment of a certificate or an approval shall be subject to payment of the full amount of the fee due. In the event of non-payment, the Agency may revoke the relevant certificate or approval after having given formal warning to the applicant.
3. The scale of fees applied by the Agency, and the terms of payment, shall be communicated to applicants when they submit their applications.
4. For all certification tasks which give rise to the payment of a variable part, the Agency shall provide the applicant with a quote which must be approved by the applicant before the task concerned starts. The quote shall be amended by the Agency if it appears that the task is simpler or can be carried out faster than initially foreseen or, on the contrary, if it is more complex and takes longer to carry out than the Agency could reasonably have foreseen.
5. For operations which only give rise to the payment of a fixed part, half of that part shall be payable before the task concerned starts, the balance being payable in exchange for issue of the certificate or approval.
6. For tasks which give rise to the payment of a variable part, 30 % of the total amount of the fee due (including any fixed part) shall be payable before the task concerned starts, and 40 % of the amount shall be payable as the task proceeds, in quarterly instalments. The balance of 30 % shall be payable in exchange for issue of the certificate or approval.
7. Fees for the maintenance of existing certificates and approvals shall be payable in accordance with a timetable decided by the Agency and communicated to the holders of such certificates and approvals. The timetable shall be based on the inspections carried out by the Agency to check that such certificates and approvals are still valid.
8. If, after a first check, the Agency decides not to accept an application, any fees already paid shall be returned to the applicant, with the exception of an amount to cover the administrative costs of handling the application. That amount shall be equivalent to the fixed fee D set out in the Annex.
9. If a certification task has to be interrupted by the Agency because the applicant has insufficient resources or fails to comply with the applicable requirements, the balance of any fees due shall be payable in full at the time the Agency stops working.
CHAPTER IV
TRANSITIONAL AND FINAL PROVISIONS
Article 13
From 1 June 2005, the fees shall be demanded and levied by the Agency only.
Member States shall not levy fees for certification tasks, even if they carry out those tasks on behalf of the Agency.
The Agency shall reimburse the Member States for the certification tasks they provide on its behalf.
For certification tasks carried out by Member States on behalf of the Agency which are ongoing on 1 June 2005, fees shall be levied by the Agency so as to avoid double payment by the applicant.
Article 14
For the purposes of the application of this Regulation, and at the latest 30 days before the date of application of Articles 1 to 13, the Agency shall confirm in writing to the Commission that it is able to assume the tasks imposed on it by this Regulation, and in particular to calculate and to invoice the amounts of fees due by the applicants and to reimburse the Member States.
Article 15
This Regulation shall enter into force on the third day following its publication in the Official Journal of the European Union.
Articles 1 to 13 shall apply from 1 June 2005.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 21 March 2005. | [
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COMMISSION REGULATION (EC) No 2808/98 of 22 December 1998 laying down detailed rules for the application of the agrimonetary system for the euro in agriculture
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Council Regulation (EC) No 2799/98 of 15 December 1998 establishing the agrimonetary arrangements for the euro (1), and in particular Article 9 thereof,
Whereas Regulation (EC) No 2799/98 establishes new agrimonetary arrangements following the introduction of the euro; whereas Commission Regulation (EEC) No 1068/93 of 30 April 1993 on detailed rules for determining and applying the agricultural conversion rates (2), as last amended by Regulation (EC) No 961/98 (3), and Commission Regulation (EC) No 805/97 of 2 May 1997 laying down detailed rules for compensation relating to appreciable revaluations (4), as amended by Regulation (EC) No 1425/98 (5), must be radically amended to bring them into line with Regulation (EC) No 2799/98; whereas, in order to facilitate implementation of the new agrimonetary arrangements, the Regulations in question should be repealed and the relevant provisions should be included in a new Regulation;
Whereas it is necessary to establish the operative events for the exchange rates applicable, without prejudice to any specific definitions or exemptions provided for in the rules for the sectors concerned on the basis of the criteria mentioned in Article 3 of Regulation (EC) No 2799/98;
Whereas for all the prices or amounts involved in trading transactions the acceptance of the customs declaration represents a suitable operative event; whereas in the case of prices and amounts linked to those prices the commercial objective of buying or selling operations is attained when the product is paid for or taken over and, in the case of withdrawal operations by producer groups, on the first day of the month concerned; whereas, in the case of aid paid for a given quantity of product and in particular where the aid is granted subject to a specific use of that product such as its processing, preservation, packaging or consumption, the commercial objective is attained when the product is taken over by the relevant operator and, where applicable, when the particular use of that product is guaranteed; whereas, in the case of private storage aid, products are no longer available on the market from the first day for which the aid is granted;
Whereas, in the case of aid granted per hectare, the commercial objective is attained when the product is harvested, usually at the beginning of the marketing year; whereas the operative event for structural aid should be established at 1 January;
Whereas, for amounts not linked to the market prices of agricultural products, the operative event can be established as a date to be determined on the basis of the period during which the operation occurs; whereas it should be stated that the operative event applicable for the recording of prices or offers on the market is to occur on the day on which the prices or offers themselves are applicable; whereas, in the case of advances and securities, the exchange rate must approximate to that applicable to the prices or amounts in question where this is known at the time the advances or securities are paid;
Whereas Regulation (EC) No 2799/98 allows Member States to grant compensation to farmers who have suffered the effects of an appreciable revaluation or an actual reduction in direct aid; whereas that Regulation lays down certain conditions for granting compensation and its phasing over time, and indicates the method for determining the maximum amount that may be allocated by a Member State; whereas the compensation concerned is partly financed by the Community budget;
Whereas it is necessary to define the operative event that determines the exchange rate used to convert amounts expressed in euros into the national currencies of the Member States; whereas, to facilitate financial management, the payment of more than one annual instalment of compensation in the same budget year should be avoided; whereas, to take account of the European Community's international commitments, and in the interests of administrative transparency, the procedures to be followed by Member States wishing to grant compensation should be laid down;
Whereas, in order to fulfil its purpose, the compensation must be granted directly to the beneficiaries, in principle farmers, within a fixed period and for amounts not exceeding the income losses concerned; whereas, however, to avoid administrative complications arising from the grant of small amounts to beneficiaries, simplified procedures may be used in certain cases;
Whereas the measures provided for in this Regulation are in accordance with the opinion of the relevant management committees,
HAS ADOPTED THIS REGULATION:
TITLE I
Exchange rate and operative events
Article 1
The exchange rate to be used shall be the rate most recently fixed by the European Central Bank (ECB) prior to the operative event.
Article 2
The operative event for the exchange rate for prices and amounts fixed in euros in Community legislation and to be applied in trade with third countries shall be the acceptance of the customs declaration.
Article 3
1. For prices or, without prejudice to Article l and paragraph 2 of this Article, amounts linked to those prices,
- fixed in ecus in Community legislation,
or
- fixed in euros by a tendering procedure,
the operative event for the exchange rate shall be:
- in the case of purchases or sales, the taking over by the purchaser of the batch of products concerned or the transfer of the first payment, whichever is earlier,
- in the case of withdrawals of products in the fruit and vegetable or fishery product sectors, the first day of the month in which the withdrawal takes place.
For the purposes of this Regulation, for purchases by intervention agencies, taking over shall be the commencement of physical delivery of the batch concerned or, where there is no physical movement, provisional acceptance of the seller's tender.
2. For aid granted by quantity of marketed product or by quantity of product to be used in a specific way, the operative event for the exchange rate shall be the first operation which:
- guarantees the appropriate use of the products in question and entails grant of the aid,
and
- occurs on or after the date of taking over of the products by the operator concerned and, where appropriate, before the date of specific use.
3. For private storage aid the operative event for the exchange rate shall be the first day in respect of which the aid relating to a particular contract is granted.
Article 4
1. Notwithstanding paragraph 2, in the case of aid per hectare the operative event for the exchange rate shall be the commencement of the marketing year in respect of which the aid is granted.
2. In the case of amounts of a structural or environmental character, in particular those granted under environmental protection, early retirement or afforestation schemes, the operative event for the exchange rate shall be 1 January of the year during which the decision to grant the aid is taken.
However, in cases where, under Community rules, payment of the amounts referred to in the first subparagraph is staggered over several years, the annual instalments shall be converted using the exchange rate applicable on l January of the year for which the instalment in question is paid.
Article 5
1. For costs of transport, processing or, without prejudice to Article 3(3), storage and for amounts allocated to studies or promotional measures, determined under a tendering procedure, the operative event for the exchange rate shall be the final day for the submission of tenders.
2. For the recording of prices, amounts or tenders on the market, the operative event for the exchange rate shall be the day in respect of which the price, amount or tender is recorded.
3. For advances:
(a) the operative event for the exchange rate shall be:
- the event applicable to the price or amount to which the advance relates, where this event has occurred by the time the advance is paid,
or
- in other cases, the date of fixing in euros of the advance or, failing that, the date of payment of the advance;
(b) the operative event for the exchange rate shall be applied without prejudice to application to the entire price or amount in question of the operative event determined for that price or amount.
4. The operative event for the exchange rate for securities shall be, for each separate operation:
- for advances, that defined for the amount of the advance, where this event has occurred by the time the security is paid,
- for the submission of tenders, the day on which the tender is submitted,
- for the execution of tenders, the closing date of the invitation to tender,
- in other cases, the date on which the security takes effect.
TITLE II
Compensation for appreciable revaluations
Article 6
1. This Title lays down the detailed rules for granting the compensatory aid referred to in Article 4 of Regulation (EC) No 2799/98.
2. The maximum amounts of compensatory aid shall be determined in accordance with Article 4(2) of Regulation (EC) No 2799/98.
Article 7
1. Without prejudice to Article 9:
(a) Member States may grant compensatory aid only by means of payments to beneficiaries and without conditions relating to its use;
and
(b) compensatory aid may be granted only to agricultural holdings, the definition of an agricultural holding being established by the Member State concerned on the basis of objective criteria.
2. The maximum level of the aid shall be converted into national currency using the average exchange rate for the year in which the appreciable revaluation occurred.
Article 8
1. The amount of compensatory aid granted to the beneficiary shall be linked to the size of the holding during a period to be stipulated in each case, according to the criteria laid down in the second subparagraph of Article 4(1) of Regulation (EC) No 2799/98.
In determining the size of the holding, account shall be taken only of the types of production referred to in point (1)(a) of the Annex to the said Regulation.
Member States may set minimum holding sizes only to the extent necessary to facilitate administration of the compensatory aid.
2. In all cases, the compensatory aid must be compatible with the international commitments of the Community.
Article 9
1. Where the amount of compensatory aid which is to be granted for any annual instalment divided by the estimated number of agricultural holdings concerned is below EUR 400, that amount may be granted for measures concerning the agricultural sector:
- which are collective and of general interest,
or
- for which Community provisions allow Member States to grant national aid, provided the intensities under the State aid policy are respected.
2. To be eligible for Community finance the measures shall be additional, either by their nature or in terms of aid intensity, to those which the Member State would have applied in the absence of the aid, and shall not benefit from other Community financing.
TITLE III
Compensation for reductions in the exchange rates applied to direct aid
Article 10
1. This Title lays down the detailed rules for granting the compensatory aid referred to in Article 5 of Regulation (EC) No 2799/98.
2. The maximum amounts of compensatory aid shall be determined in accordance with Article 5(2) of Regulation (EC) No 2799/98.
If, for the amounts mentioned in paragraph 3 of the present Article, an amount fixed in national currency is lower than the ceiling, a reduction of the ceiling which does not affect the fixed amount is not to be considered as a reduction.
3. For the purposes of Article 5 of Regulation (EC) No 2799/98, amounts of a structural or environmental character that are not:
- flat-rate aid fixed per hectare or per livestock unit,
or
- a compensatory premium per ewe or she-goat,
shall be those financed from the EAGGF Guidance Section or the Financial Instrument for Fisheries Guidance (FIFG), those referred to in Council Regulation (EEC) No 1992/93 (6) or those fixed in Council Regulations (EEC) No 2078/92 (7), (EEC) No 2079/92 (8) or (EEC) No 2080/92 (9).
4. The compensatory aid shall be granted for the 12-month period preceding the respective application of the reduced exchange rate.
5. Member States may grant compensatory aid only by means of additional payments to beneficiaries of aid as referred to in Article 5 of Regulation (EC) No 2799/98. They may not impose conditions as to the use of such payments.
6. The maximum level of aid shall be converted using the exchange rate which gave rise to that amount.
TITLE IV
General provisions
Article 11
1. The application for authorisation to grant compensatory aid as referred to in Titles II and III shall be submitted to the Commission by the Member State concerned before the end of the third month following that in which the appreciable revaluation or the reduction concerned occurred. The application must include sufficient information for the Commission to check the compatibility of the measure with the rules as provided in paragraph 2.
2. In accordance with the procedure laid down in Article 93(3) of the Treaty and with this Regulation, the Commission shall check the compatibility of the aid applications with the rules in force concerning compensation for appreciable revaluations and for reductions.
3. The total amount of compensatory aid granted must be proportionate to the loss affecting each sector in the Member State concerned. How the aid is distributed within a given sector must not alter the conditions of competition to an extent detrimental to the common interest.
4. The Commission may take up to two months from the date of receipt of the full application referred to in paragraph l to approve the compensatory aid. If the Commission has not delivered an opinion within that period, the measures planned may be implemented provided that the Member State gives the Commission prior notification of its intention.
5. Any Member State intending to grant compensatory aid shall adopt the necessary national measures within three months of the date of the Commission decision or the prior notification by the Member State provided for in paragraph 4.
Article 12
1. Payment to the same beneficiary of an amount of the same compensatory aid instalment may not be made during the same budget year as payment of the corresponding amount of another instalment.
2. Payment of the amount of the first instalment of compensatory aid as referred to in:
- Title II shall be made within one year following the date of the appreciable revaluation which gave entitlement to the aid concerned,
- Title III shall be made within a period beginning on the date of the operative event and ending:
- 18 months later in the case of recipients of a cattle premium,
- 12 months later in the case of recipients of amounts of a structural or environmental character, or
- nine months later in the case of recipients of other direct aid as referred to in Article 5(1) of Regulation (EC) No 2799/98.
3. The time limits referred to in Article 11(1) and (5) and in paragraph 2 of this Article may be amended by the Commission at the duly justified request of Member States.
4. The Commission shall have two months in which to approve the measures referred to in Article 8 of Regulation (EC) No 2799/98 from the date of receipt of such measures envisaged by a non-participating Member State. If the Commission fails to deliver an opinion within that time the measures may be implemented provided that the Commission has been notified in advance by the Member State.
Article 13
Every year the Member State concerned shall submit to the Commission a report on the implementation of the compensatory aid measures, giving details of the amounts paid out. The first of these reports shall be submitted not later than 18 months after the decision or the notification by the Member State referred to in Article 11(4).
Article 14
Amounts quoted in tenders submitted in response to invitations to tender organised under an instrument forming part of the common agricultural policy shall, with the exception of amounts the Community contribution to which is financed from the EAGGF Guidance Section, be expressed in euros.
Article 15
1. The percentage of appreciability of an appreciable revaluation and the reduction in the exchange rate shall be expressed to three decimal places, the third decimal being rounded off. The average annual exchange rate shall be established to six significant figures, the sixth figure being rounded off.
2. For the purposes of this Regulation 'significant figures` means:
- all figures, in the case of a number whose absolute value is greater than or equal to 1,
or
- all decimal places starting from the first one which is not zero, in other cases.
The roundings-off referred to in this Article shall be effected by increasing the figure concerned by one unit in cases where the following figure is greater than or equal to five and by leaving it unchanged in other cases.
Article 16
Regulations (EEC) No 1068/93 and (EC) No 805/97 are hereby repealed
Article 17
This Regulation shall enter into force on the day following its publication in the Official Journal of the European Communities.
It shall apply from 1 January 1999.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 22 December 1998. | [
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Commission Regulation (EC) No 307/2001
of 14 February 2001
establishing unit values for the determination of the customs value of certain perishable goods
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code(1), as last amended by Regulation (EC) No 2700/2000 of the European Parliament and of the Council(2),
Having regard to Commission Regulation (EEC) No 2454/93 of 2 July 1993 laying down provisions for the implementation of Council Regulation (EEC) No 2913/92 establishing the Community Customs Code(3), as last amended by Regulation (EC) No 1602/2000(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 16 February 2001.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 14 February 2001. | [
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COUNCIL DECISION
of 5 July 2004
on the existence of an excessive deficit in Cyprus
(2005/184/EC)
THE COUNCIL OF THE EUROPEAN UNION,
Having regard to the Treaty establishing the European Community, and in particular Article 104(6) thereof,
Having regard to the recommendation from the Commission,
Having regard to the observations made by Cyprus,
Whereas:
(1)
According to Article 104 of the Treaty, Member States are to avoid excessive government deficits; this applies also to Member States with a derogation, the case of all countries that joined the European Union on 1 May 2004.
(2)
The Stability and Growth Pact is based on the objective of sound government finances as a means of strengthening the conditions for price stability and for strong sustainable growth conducive to employment creation.
(3)
The excessive deficit procedure under Article 104 provides for a decision on the existence of an excessive deficit and the Protocol on the excessive deficit procedure annexed to the Treaty sets out further provisions relating to the implementation of the excessive deficit procedure. Council Regulation (EC) No 3605/93 (1) of 22 November 1993 on the application of the Protocol on the excessive deficit procedure annexed to the Treaty establishing the European Community lays down detailed rules and definitions for the application of the provision of the said Protocol.
(4)
Article 104(5) of the Treaty requires the Commission to address an opinion to the Council if the Commission considers that an excessive deficit in a Member State exists or may occur. Having examined all relevant factors taken into account in its report in accordance with Article 104(3) and having regard to the opinion of the Economic and Financial Committee in accordance with Article 104(4), the Commission concluded in its opinion of 24 June 2004 that there exists an excessive deficit in Cyprus.
(5)
Article 104(6) of the Treaty lays down that the Council should consider any observations which the Member State concerned may wish to make before deciding, after an overall assessment, whether an excessive deficit exists.
(6)
The overall assessment leads to the following conclusions. The general government deficit reached 6,3 % of GDP in 2003 in Cyprus, above the 3 % of GDP Treaty reference value. The excess of the general government deficit over the reference value did not result from an unusual event outside the control of the Cypriot authorities, nor was it the result of a severe economic downturn, within the meaning of the Stability and Growth Pact. The general government deficit is likely to remain above 3 % of GDP in 2004. In particular, according to the Commission Spring 2004 forecast, the deficit is projected to reach 4,6 % of GDP in 2004, while the convergence programme of Cyprus forecasts a deficit of 5,2 % of GDP. The debt ratio, which was 72,2 % in 2003, is likely to further diverge from the 60 % of GDP Treaty reference value in 2004,
HAS ADOPTED THIS DECISON:
Article 1
From an overall assessment it follows that an excessive deficit exists in Cyprus.
Article 2
This Decision is addressed to the Republic of Cyprus.
Done at Brussels, 5 July 2004. | [
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COMMISSION REGULATION (EEC) No 3990/88 of 21 December 1988 concerning the stopping of fishing for hake by vessels flying the flag of Spain
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 3977/87 of 21 December 1987, fixing, for certain fish stocks and groups of fish stocks, total allowable catches for 1988 and certain conditions under which they may be fished (3), as last amended by Regulation (EEC) No 3472/88 (4), provides for hake quotas for 1988;
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 hake in the waters of ICES divisions V b (EC zone), VI, VII, XII, XIV and VIII a, b, d and e by vessels flying the flag of Spain or registered in Spain have reached the quotas allocated for 1988,
HAS ADOPTED THIS REGULATION:
Article 1 Catches of hake in the waters of ICES divisions V b (EC zone), VI, VII, XII, XIV and VIII a, b, d and e by vessels flying the flag of Spain or registered in Spain are deemed to have exhausted the quotas allocated to Spain for 1988.
Fishing for hake in the waters of ICES divisions V b (EC zone), VI, VII, XII, XIV and VIII a, b, d and e by vessels flying the flag of Spain or registered in Spain in prohibited, as well as the retention on board, the transhipment and the landing of such stocks 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 that 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, 21 December 1988. | [
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COUNCIL DECISION
of 23 January 2006
appointing eight members of the Court of Auditors
(2006/36/EC, Euratom)
THE COUNCIL OF THE EUROPEAN UNION,
Having regard to the Treaty establishing the European Community, and in particular Article 247(3) thereof,
Having regard to the Treaty establishing the European Atomic Energy Community, and in particular Article 160b(3) thereof,
Having regard to the opinions of the European Parliament (1),
Whereas:
(1)
The terms of office of Mr Giorgio CLEMENTE, Mr Juan Manuel FABRA VALLÉS, Ms Máire GEOGHEGAN-QUINN, Mr Morten Louis LEVYSOHN, Mr Robert REYNDERS, Mr Aunus SALMI, Mr Vítor Manuel da SILVA CALDEIRA and Mr Lars TOBISSON expire on 28 February 2006.
(2)
New appointments should therefore be made,
HAS DECIDED AS FOLLOWS:
Article 1
The following are hereby appointed members of the Court of Auditors for the period from 1 March 2006 to 29 February 2012:
-
Mr Olavi ALA-NISSILÄ,
-
Ms Máire GEOGHEGAN-QUINN,
-
Mr Lars HEIKENSTEN,
-
Mr Morten Louis LEVYSOHN,
-
Mr Karel PINXTEN,
-
Mr Juan RAMALLO MASSANET,
-
Mr Vítor Manuel da SILVA CALDEIRA,
-
Mr Massimo VARI.
Article 2
This Decision shall be published in the Official Journal of the European Union.
Done at Brussels, 23 January 2006. | [
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COMMISSION REGULATION (EC) No 609/1999 of 19 March 1999 laying down detailed rules for granting aid to hop producers
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Council Regulation (EEC) No 1696/71 of 26 July 1971 on the common organisation of the market in hops (1), as last amended by Regulation (EC) No 1554/97 (2), and in particular Article 13(4) thereof,
Having regard to Council Regulation (EC) No 1098/98 of 25 May 1998 introducing special temporary measures for hops (3), and in particular Article 3 thereof,
Whereas Commission Regulation (EEC) No 1350/72 of 28 June 1972 on rules for granting aid to hop producers (4), as last amended by Regulation (EC) No 1136/98 (5), has been substantially amended on several occasions; whereas since further amendments are to be made, it should be recast in the interests of clarity;
Whereas Article 3 of Council Regulation (EEC) No 1037/72 of 18 May 1972 laying down general rules for granting and financing aid for hop producers (6), as amended by Regulation (EEC) No 1604/91 (7), provides for the introduction by the Member States of a system of declarations and registration of areas planted; whereas, with a view to ensuring that the systems in the various Member States are in conformity, the particulars to be shown in producers' declarations must be specified;
Whereas Regulation (EC) No 1098/98 provides for compensation to be granted for the years 1998 to 2002 in respect of areas where temporary resting and/or grubbing-up measures are applied; whereas such areas should therefore be declared in the same way as areas planted;
Whereas areas planted must be declared no later than 31 May of the year of harvest; whereas this poses problems in the United Kingdom because of developments in production methods, whereby plants propagated from cuttings can be harvested in the same year as planting; whereas planting finishes in June and not in May; whereas the harvesting of hops propagated by this method involves only a small percentage of the total area under hops in the United Kingdom; whereas care should nevertheless be taken to prevent discrimination against producers applying that method and losing the aid as a result; whereas, to that end, provision should be made for a derogation for the United Kingdom, involving fixing the deadline for declaring areas at 30 June of the year of harvest;
Whereas methods for determining areas under hops can vary from region to region; whereas the concept of 'area planted` should therefore be defined at Community level to ensure that the areas on which production aid is payable are calculated in the same way;
Whereas caution must increasingly be exercised in the administration of pesticides and growers should accordingly be able to spray the outer rows of hopfields towards the inside of plantations in order to avoid affecting other crops; whereas allowance should accordingly be made for an extra strip of land along each side of hopfields; whereas hop-growing is easier if the length of the two headlands located at the ends of the hop rows and needed for manoeuvring agricultural machinery are set at eight metres, since the machines used nowadays are longer and require more manoeuvring space;
Whereas the aid should be payable on hop cones only and not on whole young plants grown in nurseries;
Whereas aid payments should also be subject to conditions ensuring that only producers who have properly tended and harvested their hops are eligible;
Whereas an effective system for ensuring that the aid is justified and no duplicate payments are made should be introduced along the lines of the system provided for in Council Regulation (EEC) No 3508/92 of 27 November 1992 establishing an integrated administration and control system for certain Community aid schemes (8), as last amended by Regulation (EC) No 820/97 (9), and Commission Regulation (EEC) No 3887/92 of 23 December 1992 laying down detailed rules for applying the integrated administration and control system for certain Community aid schemes (10), as last amended by Regulation (EC) No 1678/98 (11); whereas on-the-spot checks should be carried out on a significant sample of applications;
Whereas the Commission must know the names and addresses of the bodies responsible for registering areas and the measures adopted by the Member States for the application of the system of aid for hop producers;
Whereas in certain cases the aid may be granted directly to recognised producer groups and associations thereof; whereas in such cases provision should be made for the Commission to be informed either about the way the aid is managed or how the aid is used to achieve various aims of recognised producer groups;
Whereas, under the new common organisation of the market in hops, 31 December is the most appropriate deadline for the Member States to provide information on the management of the aid by producer groups;
Whereas it is necessary to ensure that the areas declared are correct; whereas provisions should be adopted to prevent and impose effective penalties on irregularities and fraud which are graduated in accordance with the gravity of the irregularity;
Whereas the measures provided for in this Regulation are in accordance with the opinion of the Management Committee for Hops,
HAS ADOPTED THIS REGULATION:
Article 1
1. By 31 May - and, in the United Kingdom, 30 June - of the year of harvest, hop producers shall lodge declarations of areas planted and of areas subject to special temporary resting and/or grubbing-up measures as provided for in Regulation (EC) No 1098/98.
2. Declarations shall include at least:
(a) the name and address of the declarant;
(b) for each variety or experimental strain:
(i) the area planted or covered by special resting and/or grubbing-up measures,
(ii) the land-register reference of the area or the reference under the integrated administration and control system provided for in Regulation (EC) No 3887/92; where no such references exist for the area concerned, equivalent official identification and, where necessary, further details enabling the variety or experimental strain to be located;
(c) the name of the recognised producer group where the declarant is a member of such a group for the purposes of hop production.
3. 'Area planted` shall mean:
(a) without prejudice to the terms of point (b), the parcel bounded by a line joining the outer stays of the poles; where there are hop plants on that line, an additional strip of a width corresponding to the average width of an alleyway within that parcel shall be added to each side of that area; the additional strip must not form part of a public right of way;
(b) the two headlands at the ends of the hop rows that are needed for manoeuvring agricultural machinery, provided that the length of neither headland exceeds eight metres and they do not form part of a public right of way.
Article 2
1. Aid applications and, in Member States which decide to apply temporary resting measures, applications for compensation in accordance with Article 2 of Regulation (EC) No 1098/98 shall be submitted by the individual producers or, on their behalf, by their producer groups, within a time limit fixed by the Member State which shall be no later than 31 October of the year of harvest. In the event of definitive grubbing-up, applications for compensation shall be submitted not later than 31 October of the first year in which the scheme is applied.
2. The aid shall be granted only on registered areas referred to in Article 1(3)(a) which, for the harvest in question:
(a) have been planted at a uniform density of at least 1 500 plants per hectare in the case of double stringing/wiring, or 2 000 plants per hectare in the case of single stringing/wiring;
(b) have been declared in accordance with Article 1;
(c) have undergone normal tending and harvesting operations; young hop plants grown chiefly as nursery products shall be excluded.
Compensation shall be granted only on registered areas which:
(a) have been declared in accordance with Article 1 for the harvest in question;
(b) were in production in 1997 and have been the subject of special resting and/or grubbing-up measures.
Article 3
1. Applications for aid or compensation shall include at least the information referred to in Article 1(2) in respect of the areas covered by the application and, in the case of areas as referred to in Article 2(2), first paragraph, a declaration to the effect that the crops on those areas have been harvested.
2. The Member States may provide that applications for aid or compensation can comprise a duplicate of the declaration in accordance with Article 1, with a declaration added to the effect that the crops on the areas covered by the application have been harvested.
Article 4
Administrative and on-the-spot checks shall be carried out to verify compliance with the conditions for granting the aid and compensation.
The administrative checks shall also entail cross-checking parcels declared as under hops against the database provided for in Article 2 of Regulation (EEC) No 3508/92.
On-the-spot checks shall be carried out after a risk analysis and shall cover a significant sample of declarations and applications amounting to at least 5 % of the declarations of areas and 5 % of applications for aid or compensation.
Article 5
1. Each Member State shall notify the Commission of the names and addresses of the bodies designated in accordance with the second subparagraph of Article 13(1) of Regulation (EEC) No 1696/71 and of the measures it has taken to apply the system of aid and compensation for hop producers.
2. Each year the Member States shall send the Commission all relevant information in respect of recognised producer groups established in their territory, covering the way in which those groups have managed the aid and the compensation paid to them and, where appropriate, details of measures they have taken in accordance with Article 7(1)(e) of Regulation (EEC) No 1696/71. That information shall be forwarded by 31 December of the year following the year of the harvest in question.
Article 6
1. Where the area determined is found to be greater than the area declared, aid or compensation shall be calculated on the basis of the area declared.
2. Where the area declared is found to exceed the area determined, aid and compensation shall be calculated on the basis of the area determined during the inspection. However, except in cases of force majeure, the area determined shall be reduced by twice the difference from the area declared where that difference is more than 3 % or two hectares but is not more than 20 % of the area as determined.
Where the difference from the area declared is more than 20 % of the area determined, no area-linked aid or compensation shall be granted.
The reductions shall not be made where growers can prove that in their declaration they have made correct use of information accepted by the competent authority.
3. In the event of an incorrect declaration made as a result of serious negligence, the grower in question shall not qualify under the system of aid and compensation in respect of the harvest in question.
In the event of an incorrect declaration made deliberately, the grower in question shall not qualify under the system of aid and compensation in respect of the harvest in question and the following harvest.
Article 7
The following provisions of Regulation (EEC) No 3887/92 shall apply mutatis mutandis:
(a) the second subparagraph of Article 6(3), where significant irregularities are discovered in a region or a part of a region;
(b) the first subparagraph of Article 8(1), where declarations of areas and/or applications for aid or compensation are submitted late;
(c) Article 11 as regards cases of force majeure;
(d) Article 12 as regards inspection visit reports;
(e) Article 13 as regards cases where on-the-spot checks cannot be made;
(f) Article 14 as regards wrong payments.
Article 8
Regulation (EEC) No 1350/72 is repealed.
References to the repealed Regulation shall be construed as references to this Regulation.
Article 9
This Regulation shall enter into force on the third day following that 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, 19 March 1999. | [
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Commission Regulation (EC) No 1143/2001
of 11 June 2001
establishing the standard import values for determining the entry price of certain fruit and vegetables
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Commission Regulation (EC) No 3223/94 of 21 December 1994 on detailed rules for the application of the import arrangements for fruit and vegetables(1), as last amended by Regulation (EC) No 1498/98(2), and in particular Article 4(1) thereof,
Whereas:
(1) Regulation (EC) No 3223/94 lays down, pursuant to the outcome of the Uruguay Round multilateral trade negotiations, the criteria whereby the Commission fixes the standard values for imports from third countries, in respect of the products and periods stipulated in the Annex thereto.
(2) In compliance with the above criteria, the standard import values must be fixed at the levels set out in the Annex to this Regulation,
HAS ADOPTED THIS REGULATION:
Article 1
The standard import values referred to in Article 4 of Regulation (EC) No 3223/94 shall be fixed as indicated in the Annex hereto.
Article 2
This Regulation shall enter into force on 12 June 2001.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 11 June 2001. | [
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*****
COUNCIL REGULATION (EEC) No 3659/84
of 19 December 1984
extending the period of application of Council Regulation (EEC) No 3310/75 on agriculture in the Grand Duchy of Luxembourg
THE COUNCIL OF THE EUROPEAN
COMMUNITIES,
Having regard to the Treaty establishing the European Economic Community,
Having regard to the Protocol on the Grand Duchy of Luxembourg annexed thereto,
Having regard to Council Regulation (EEC) No 3310/75 of 16 December 1975 on agriculture in the Grand Duchy of Luxembourg (1), as last amended by Regulation (EEC) No 3606/83 (2), and in particular Article 2 (2) thereof,
Having regard to the proposal from the Commission,
Whereas, under the second subparagraph of Article 1 (1) of the Protocol on the Grand Duchy of Luxembourg, Belgium and the Netherlands are to apply the system provided for in the third paragraph of Article 6 of the Convention on the Economic Union of Belgium and Luxembourg of 25 July 1921; whereas the period of application of this system was last extended by Regulation (EEC) No 3606/83; whereas the Council has to decide to what extent these provisions should be retained, amended or discontinued;
Whereas the application of the said system in favour of Luxembourg wines will continue to be of benefit to the agricultural income of the Grand Duchy of Luxembourg in the sector concerned;
Whereas, having regard to the other reasons set out in Regulation (EEC) No 3310/75, the period of application of the latter Regulation should be extended,
HAS ADOPTED THIS REGULATION:
Article 1
In the first paragraph of Article 2 of Regulation (EEC) No 3310/75, '31 December 1984' is hereby replaced by '31 December 1985'.
Article 2
This Regulation shall enter into force on 1 January 1985.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 19 December 1984. | [
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COMMISSION REGULATION (EC) No 2023/2006
of 22 December 2006
on good manufacturing practice for materials and articles intended to come into contact with food
(Text with EEA relevance)
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Regulation (EC) No 1935/2004 of the European Parliament and the Council of 27 October 2004 on materials and articles intended to come into contact with food (1), and in particular Article 5(1) thereof,
Whereas:
(1)
Groups of materials and articles listed in Annex I to Regulation (EC) No 1935/2004 and combinations of those materials and articles or recycled materials and articles used in those materials and articles should be manufactured in compliance with general and detailed rules on good manufacturing practice (GMP).
(2)
Some sectors of industry have established GMP guidelines, while others have not. Consequently, it appears necessary to ensure uniformity among Member States as regards GMP for materials and articles intended to come into contact with food.
(3)
In order to ensure such conformity, it is appropriate to lay down certain obligations on business operators.
(4)
All business operators should operate an effective quality management of their manufacturing operations which should be adapted to their position in the supply chain.
(5)
The rules should apply to materials and articles intended to be brought into contact with food, or already in contact with food and were intended for this purpose, or those which can reasonably be expected to be brought into contact with food or to transfer their constituents to food under normal or foreseeable conditions of use.
(6)
The rules on GMP should be applied proportionately to avoid undue burdens for small businesses.
(7)
Detailed rules should now be set for processes involving printing inks and should be established for other processes as necessary. For printing inks applied to the non-food contact side of a material or article GMP should in particular ensure that substances are not transferred into food by set-off or transfer through the substrate.
(8)
The measures provided for in this Regulation are in accordance with the opinion of the Standing Committee on the Food Chain and Animal Health,
HAS ADOPTED THIS REGULATION:
Article 1
Subject matter
This Regulation lays down the rules on good manufacturing practice (GMP) for the groups of materials and articles intended to come into contact with food (hereafter referred to as materials and articles) listed in Annex I to Regulation (EC) No 1935/2004 and combinations of those materials and articles or recycled materials and articles used in those materials and articles.
Article 2
Scope
This Regulation shall apply to all sectors and to all stages of manufacture, processing and distribution of materials and articles, up to but excluding the production of starting substances.
The detailed rules set out in the Annex shall apply to the relevant individually mentioned processes, as appropriate.
Article 3
Definitions
For the purpose of this Regulation, the following definitions shall apply:
(a)
‘good manufacturing practice (GMP)’ means those aspects of quality assurance which ensure that materials and articles are consistently produced and controlled to ensure conformity with the rules applicable to them and with the quality standards appropriate to their intended use by not endangering human health or causing an unacceptable change in the composition of the food or causing a deterioration in the organoleptic characteristics thereof;
(b)
‘quality assurance system’ means the total sum of the organised and documented arrangements made with the purpose of ensuring that materials and articles are of the quality required to ensure conformity with the rules applicable to them and the quality standards necessary for their intended use;
(c)
‘quality control system’ means the systematic application of measures established within the quality assurance system that ensure compliance of starting materials and intermediate and finished materials and articles with the specification determined in the quality assurance system;
(d)
‘non-food-contact side’ means the surface of the material or article that is not directly in contact with food;
(e)
‘food-contact side’ means the surface of a material or article that is directly in contact with the food.
Article 4
Conformity with good manufacturing practice
The business operator shall ensure that manufacturing operations are carried out in accordance with:
(a)
the general rules on GMP as provided for in Article 5, 6, and 7,
(b)
the detailed rules on GMP as set out in the Annex.
Article 5
Quality assurance system
1. The business operator shall establish, implement and ensure adherence to an effective and documented quality assurance system. That system shall:
(a)
take account of the adequacy of personnel, their knowledge and skills, and the organisation of the premises and equipment such as is necessary to ensure that finished materials and articles comply with the rules applicable to them;
(b)
be applied taking into account the size of the business run by the operator, so as not to be an excessive burden on the business.
2. Starting materials shall be selected and comply with pre-established specifications that shall ensure compliance of the material or article with the rules applicable to it.
3. The different operations shall be carried out in accordance with pre-established instructions and procedures.
Article 6
Quality control system
1. The business operator shall establish and maintain an effective quality control system.
2. The quality control system shall include monitoring of the implementation and achievement of GMP and identify measures to correct any failure to achieve GMP. Such corrective measures shall be implemented without delay and made available to the competent authorities for inspections.
Article 7
Documentation
1. The business operator shall establish and maintain appropriate documentation in paper or electronic format with respect to specifications, manufacturing formulae and processing which are relevant to compliance and safety of the finished material or article.
2. The business operator shall establish and maintain appropriate documentation in paper or electronic format with respect to records covering the various manufacturing operations performed which are relevant to compliance and safety of the finished material or article and with respect to the results of the quality control system.
3. The documentation shall be made available by the business operator to the competent authorities at their request.
Article 8
Entry into force
This Regulation shall enter into force on the 20th day following that of its publication in the Official Journal of the European Union.
It shall apply from 1 August 2008.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 22 December 2006. | [
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COUNCIL REGULATION (EEC) No 1175/93 of 10 May 1993 opening and providing for the administration of Community tariff quotas for certain agricultural products originating in Austria, Norway and Sweden
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 signed Bilateral Agreements on certain arrangements in agriculture in the form of exchanges of letters with Austria, Finland, Iceland, Norway, Sweden and Switzerland at Oporto on 2 May 1992;
Whereas these Agreements were negotiated and signed at the same time as the Agreement on the European Economic Area between the European Economic Community, the European Coal and Steel Community and their Member States, of the one part, and the European Free Trade Association (EFTA) countries, of the other part; whereas the aim of all the parties was to bring the EEA Agreement and the Bilateral Agreements on agriculture into force at the same time;
Whereas, as a result of the postponement of the entry into force of the EEA Agreement following Switzerland's decision not to ratify it, Agreements in the form of exchanges of letters were signed on 17 March 1993 between the Community and, respectively, Austria, Finland, Iceland, Norway and Sweden with the aim of bringing forward implementation of the bilateral agreements on agriculture with these countries for the period running from 15 April until 31 December 1993;
Whereas the Council has approved, by the Decision of 15 March 1993 (1), the said Agreements;
Whereas on the basis of the arrangements annexed to the Bilateral Agreements on agriculture concluded between the Community of the one part and Austria, Norway and Sweden, respectively, of the other part, which were signed on 2 May 1992, the Community is to open annual reduced-duty and zero-duty tariff quotas for certain agricultural products originating in the abovementioned countries; whereas under Annex III to the arrangement between the Community and Austria, imports into Portugal of wine originating in Austria are subject to duties equal to those applied by Portugal to imports from the Community as constituted on 31 December 1985;
Whereas the provisions annexed to the arrangements concerned provide that, should the date of entry into force of the said arrangements not coincide with the beginning of the calendar year, the provisions concerning the opening of tariff quotas shall be applied on a pro rata basis for the first year; whereas it is advisable in the interests of clarity to group together all the agricultural products which benefit from tariff quotas in Annex I to this Regulation according to their place of origin, specifying for each product the volume of tariff quotas and the rates of customs duty applicable; whereas in establishing the volume of these tariff quotas, account should be taken that during 1992 and/or 1993 some products have received the benefit of a reduced duty or zero-duty tariff quota by application to the agreements currently in force with the countries in question; whereas it is consequently appropriate to repeal, with effect from 15 April 1993, Regulations (EEC) No 1694/92 (2) and (EEC) No 221/93 (3) in their entirety and those parts of Regulation (EEC) No 303/93 (4) relating to the tariff quotas under order No 09.0801; whereas it is necessary, in particular, to ensure equal and uninterrupted access for all Community importers to the said quotas and to ensure the uninterrupted application of the rates laid down for the quotas to all imports of the products concerned into all Member States until the quotas have been used up;
Whereas the decision opening tariff quotas should be taken by the Community in pursuance of its international obligations; whereas, to ensure the efficient common administration of the quotas, there is no reason why Member States should not be allowed to draw from the quota-volumes the necessary quantities corresponding to actual imports; whereas this method of administration nonetheless requires close cooperation between the Member States and the Commission and the latter must in particular be able to monitor the rate at which the quotas are used up and inform the Member States accordingly;
Whereas, since the Kingdom of Belgium, the Kingdom of the Netherlands and the Grand Duchy of Luxembourg are united within and jointly represented by the Benelux Economic Union, any operation concerning the administration of these quotas may be carried out by any of its members,
HAS ADOPTED THIS REGULATION:
Article 1
1. From 15 April until 31 December 1993, the customs duties applicable to imports of the products listed in Annex I shall be suspended under certain conditions at the levels and within the limits of the Community tariff quotas shown below.
2. Within the time limit of the quotas referred to in Annex I (a) under order Nos 09.0803 to 09.0805, Portugal shall apply duties equal to those that it applies to imports from the Community as constituted on 31 December 1985.
3. Admission under the tariff quotas referred to in paragraph 1 under order Nos 09.0803 and 09.0805 shall be reserved for wines accompanied by the following documents:
- Document VI 1 or and extract VI 2, completed in accordance with Commission Regulation (EEC) No 3590/85 (5). In this case, the document must include in Box 15 the following endorsement, certified by the competent Austrian organization:
'This is to certify that the wine referred to in this document is a quality wine/quality sparkling wine (a) originating in Austria and in conformity with the 1985 Wine Law of the Republic of Austria.
(a) Delete as appropriate.'
4. Imports of the wines in question shall be subject to the free-at-frontier reference price. Access for these wines to the tariff quotas shall be conditional on compliance with Article 54 of Regulation (EEC) No 822/87 (6).
Article 2
The tariff quotas referred to in Article 1 shall be managed by the Commission, which may take any appropriate administrative measures to ensure that they are managed efficiently.
Article 3
Where an importer presents a product covered by this Regulation for release for free circulation in a Member State, applying to take advantage of the preferential arrangements, and the entry is accepted by the customs authorities, the Member State concerned shall, by notifying the Commission, draw an amount corresponding to its requirements from the quota volume.
Requests for drawings, indicating the date on which the entries were accepted, must be sent to the Commission without delay.
Drawings shall be granted by the Commission in chronological order of the dates on which the customs authorities of the Member States concerned accepted the entries for release for free circulation, to the extent that the available balance so permits.
If a Member State does not use a drawing in full, it shall return any unused portion to the corresponding quota volume as soon as possible.
If the quantities requested are greater than the available balance of the quota volume, the balance shall be allocated among applicants pro rata. The Commission shall inform the Member States accordingly.
Article 4
Each Member State shall ensure that importers of the products in question have equal and continuous access to the quotas for as long as the balance of the relevant quota volume so permits.
Article 5
Member States and the Commission shall cooperate closely to ensure that this Regulation is complied with.
Article 6
Regulations (EEC) No 1694/92 and (EEC) No 221/93 shall be repealed with effect from 15 April 1993. The tariff quota under order No 09.0801 provided by Regulation (EEC) No 303/93 shall cease to apply as from the same date.
Article 7
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, 10 May 1993. | [
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POLITICAL AND SECURITY COMMITTEE DECISION EUJUST LEX/1/2009
of 3 July 2009
appointing the Head of Mission for the European Union Integrated Rule of Law Mission for Iraq, EUJUST LEX
(2009/596/CFSP)
THE POLITICAL AND SECURITY COMMITTEE,
Having regard to the Treaty on European Union, and in particular the third paragraph of Article 25 thereof,
Having regard to Council Joint Action 2009/475/CFSP of 11 June 2009 on the European Union Integrated Rule of Law Mission for Iraq, EUJUST LEX (1), and in particular Article 9(2) thereof,
Whereas:
(1)
On 11 June 2009, the Council adopted Joint Action 2009/475/CFSP on the European Union Integrated Rule of Law Mission for Iraq, EUJUST LEX. That Joint Action expires on 30 June 2010.
(2)
Article 9(2) of Joint Action 2009/475/CFSP authorises the Political and Security Committee to take decisions regarding the appointment of the Head of Mission.
(3)
Mr Stephen WHITE should be appointed as Head of Mission of EUJUST LEX until 31 December 2009,
HAS DECIDED AS FOLLOWS:
Article 1
Mr Stephen WHITE is hereby appointed as Head of Mission of the European Union Integrated Rule of Law Mission for Iraq, EUJUST LEX, with effect from 1 July 2009.
Article 2
This Decision shall take effect on the day of its adoption.
It shall apply until 31 December 2009.
Done at Brussels, 3 July 2009. | [
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COMMISSION REGULATION (EEC) No 1734/92 of 30 June 1992 amending Regulations (EEC) No 3540/85 as regards certain transitional measures relating to peas, field beans and sweet lupins
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Economic Community,
Having regard to Council Regulation (EEC) No 1431/82 of 18 May 1982 laying down special measures for peas, field beans and sweet lupins (1), as last amended by Regulation (EEC) No 1624/91 (2), and in particular Article 3 (7) thereof,
Having regard to Council Regulation (EEC) No 1789/89 of 19 June 1989 amending Regulation (EEC) No 2036/82 adopting general rules concerning special measures for peas, field beans and sweet lupins (3), and in particular Article 2 thereof,
Whereas, by Regulation (EEC) No 1789/89, the Council decided to step up and simplify checks; whereas those changes must result in particular in the introduction of arrangements for the approval of first buyers which will allow certain administrative documents, such as certificates of purchase at the minimum price, to be done away with;
Whereas the immediate introduction of the approval arrangements and concomitant abolition of certificates of purchase at the minimum price would lead to excessive changes in administrative procedures; whereas the existing procedures should be maintained provisionally until a new system is devised which in this respect fully complies with the guidelines laid down by the Council; whereas, in addition, the Commission forwarded to the Council a proposal for a Council Regulation establishing a support system for producers of certain arable crops (4), which entails substantial changes in the present system as from the 1992/93 marketing year, and this will affect peas, field beans and sweet lupins;
Whereas Commission Regulation (EEC) No 3540/85 (5), as last amended by Regulation (EEC) No 3685/91 (6), should be amended accordingly;
Whereas the measures provided for in this Regulation are in accordance with the opinion of the Management Committee for Dried Fodder,
HAS ADOPTED THIS REGULATION:
Article 1
The third subparagraph of Article 6 (2) of Regulation (EEC) No 3540/85 is hereby replaced by the following:
'The term of validity of such certificates shall be 24 months starting from the month following that in which they are issued. In any case, certificates may only be used for aid applications for peas, field beand and sweet lupins which have entered the premises of approved users and have been identified by 30 June 1993 at the latest.'
Article 2
This Regulation shall enter into force on the day of its publication in the Official Journal of the European Communities.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 30 June 1992. | [
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*****
COMMISSION REGULATION (EEC) No 1186/86
of 23 April 1986
re-establishing the levying of customs duties on gramophone records and other sound or similar recordings, falling within heading No 92.12, originating in Hong Kong, to which the preferential tariff arrangements set out in Council Regulation (EEC) No 3599/85 apply
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Economic Community,
Having regard to Council Regulation (EEC) No 3599/85 of 17 December 1985 applying generalized tariff preferences for 1986 in respect of certain industrial products originating in developing countries (1), and in particular Article 13 thereof,
Whereas, pursuant to Articles 1 and 10 of that Regulation, suspension of customs duties shall be accorded to each of the countries or territories listed in Annex III other than those listed in column 4 of Annex I, within the framework of the preferential tariff ceiling fixed in column 9 of Annex I;
Whereas, as provided for in Article 11 of that Regulation, as soon as the individual ceilings in question are reached at Community level, the levying of customs duties on imports of the products in question originating in each of the countries and territories concerned may at any time be re-established;
Whereas, in the case of gramophone records and other sound or similar recordings falling within heading No 92.12, originating in Hong Kong, the individual ceiling was fixed at 5 475 000 ECU; whereas, on 21 April 1986, imports of these products into the Community originating in Hong Kong reached the ceiling in question after being charged thereagainst; whereas it is appropriate to re-establish the levying of customs duties in respect of the products in question against Hong Kong,
HAS ADOPTED THIS REGULATION:
Article 1
As from 27 April 1986, the levying of customs duties, suspended pursuant to Regulation (EEC) No 3599/85, shall be re-established on imports into the Community of the following products originating in Hong Kong:
1.2 // // // CCT heading No // Description // // // 92.12 (NIMEXE code 92.12 all numbers) // Gramophone records and other sound or similar recordings; matrices for the production of records, prepared record blanks, film for mechanical sound recording, prepared tapes, wires, strips and like articles of a kind commonly used for sound or similar recording // //
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, 23 April 1986. | [
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COMMISSION DIRECTIVE 94/17/EC of 22 April 1994 amending Council Directive 70/524/EEC concerning additives in feedingstuffs (Text with EEA relevance)
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Council Directive 70/524/EEC of 23 November 1970 concerning additives in feedingstuffs (1), as last amended by Directive 93/114/EC (2), and in particular Article 7 thereof,
Whereas Directive 70/524/EEC provides for regulart amendment of the content of its Annexes to take account of advances in scientific and technical knowledge; whereas the Annexes were consolidated by Commission Directive 91/248/EEC (3);
Whereas the use of certain additives belonging to the groups of emulsifiers, stabilizers, thickeners and gelling agents, colouring matters including pigments and acidity regulators has been widely tested in various Member States; whereas, on the basis of experience gained, it appears that these new uses can be authorized throughout the Community;
Whereas new uses for additives belonging to the groups of colouring matters including pigments, binders, anti-caking agents and coagulants, enzymes and micro-organisms have been successfully tested in certain Member States; whereas the new uses should be authorized provisionally at national level in anticipation of their approval at Community level;
Whereas the measures provided for in this Directive are in accordance with the opinion of the Standing Committee on Feedingstuffs,
HAS ADOPTED THIS DIRECTIVE:
Article 1
The Annexes to Directive 70/524/EEC are hereby amended as set out in the Annex to this Directive.
Article 2
Member States shall bring into force the laws, regulations or administrative provisions necessary to comply with this Directive by 30 November 1994 at the latest. They shall immediately 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 at the time of their official publication. The procedure for such reference shall be adopted by Member States.
Article 3
This Directive shall enter into force on the third day following its publication in the Official Journal of the European Communities.
Done at Brussels, 22 April 1994. | [
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COMMISSION REGULATION (EC) No 2270/95 of 27 September 1995 amending Regulations (EEC) No 388/92 and (EEC) No 1727/92 laying down detailed rules for implementation of the specific arrangements for the supply of cereal products to the French overseas departments (FOD) and the Azores and Madeira respectively and establishing the respective forecast supply balances
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Council Regulation (EEC) No 3763/91 of 16 December 1991 introducing specific measures in respect of certain agricultural products for the benefit of the French overseas departments (1), as last amended by Regulation (EC) No 3290/94 (2), and in particular Article 2 (6) thereof,
Having regard to Council Regulation (EEC) No 1600/92 of 15 June 1992 introducing specific measures in respect of certain agricultural products for the benefit of the Azores and Madeira (3), as last amended by Regulation (EC) No 3290/94, and in particular Article 10 thereof,
Whereas Commission Regulation (EEC) No 388/92 (4), as last amended by Regulation (EC) No 1563/95 (5), lays down the detailed rules for implementation of the specific arrangements for the supply of cereal products to the French overseas departments (FOD); whereas, in order to prevent the amount of the aid becoming excessive in relation to the appropriate amount during the change-over from one marketing year to the next, Article 6 of that Regulation provides for automatic adjustments in the amount of the aid based on the date on which the products are charged against the certificate; whereas, as a result of an error, the adjustment resulting from the change in marketing year corresponding to the aid granted for the supply of maize and grain sorghum was laid down for supplies charged from 1 November onwards, whereas the change in intervention prices for those products occurs on 1 October; whereas, therefore, Regulation (EEC) No 388/92 should be amended;
Whereas Commission Regulation (EEC) No 1727/92 (6), as last amended by Regulation (EC) No 1590/95 (7), lays down the detailed rules for implementation of the specific arrangements for the supply of cereal products to the Azores and Madeira; whereas, in order to prevent the amount of the aid becoming excessive in relation to the appropriate amount during the change-over from one marketing year to the next, Article 6 of that Regulation provides for automatic adjustments in the amount of the aid based on the date on which the products are charged against the certificate; whereas, as a result of an error, the adjustment resulting from the change in marketing year corresponding to the aid granted for the supply of maize and grain sorghum was laid down for supplies charged from 1 November onwards, whereas the change in intervention prices for those products occurs on 1 October; whereas, therefore, Regulation (EEC) No 1727/92 should be amended;
Whereas the measures provided for in this Regualtion are in accordance with the opinion of the Management Committee for Cereals,
HAS ADOPTED THIS REGULATION:
Article 1
Article 6 (e) of Regulation (EEC) No 388/92 is hereby replaced by the following:
'(e) in the case of maize and grain sorghum, where the term of validity of the aid certificate extends beyond the end of September, for all supplies charged against the certificate from 1 October, as follows: the aid shall be reduced by an amount equal to the difference between the intervention price, not including monthly increases, for the former and the new marketing years and by an amount equal to the monthly increase for the former marketing year, multiplied by the number of months from November inclusive to the month in which the aid application is submitted.`
Article 2
Article 6 (e) of Regulation (EEC) No 1727/92 is hereby replaced by the following:
'(e) in the case of maize and grain sorghum, where the term of validity of the aid certificate extends beyond the end of September, for all supplies charged against the certificate from 1 October, as follows: the aid shall be reduced by an amount equal to the difference between the intervention price, not including monthly increases, for the former and the new marketing years and by an amount equal to the monthly increase for the former marketing year, multiplied by the number of months from November inclusive to the month in which the aid application is submitted.`
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, 27 September 1995. | [
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Commission Regulation (EC) No 2195/2003
of 16 December 2003
opening tariff quotas for the year 2004 for imports into the European Community of certain processed agricultural products originating in Norway
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Council Regulation (EC) No 3448/93 of 6 December 1993 laying down the trade arrangements applicable to certain goods resulting from the processing of agricultural products(1), as last amended by Regulation (EC) No 2580/2000(2) and, in particular, Article 7(2) thereof,
Having regard to Council Decision 2002/981/EC of 11 November 2002 concerning the conclusion of an Agreement in the form of an Exchange of Letters between the European Community, of the one part, and the Kingdom of Norway, of the other part, on Protocol 2 to the Agreement between the European Economic Community and the Kingdom of Norway(3) and, in particular, Article 2 thereof,
Whereas:
(1) The annual quotas for certain processed agricultural products originating in Norway provided for in the Agreement in the form of an Exchange of Letters between the European Community, of the one part, and the Kingdom of Norway, of the other part, on Protocol 2 to the Agreement between the European Economic Community and the Kingdom of Norway should be opened for 2004.
(2) 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 Common Customs Code(4), as last amended by Regulation (EC) No 1335/2003(5), lays down rules for the management of tariff quotas. It is appropriate to provide that the tariff quota opened by this Regulation is to be managed in accordance with those rules.
(3) The measures provided for in this Regulation are in accordance with the opinion of the Management Committee for horizontal questions concerning trade in processed agricultural products not listed in Annex I,
HAS ADOPTED THIS REGULATION:
Article 1
The Community tariff quotas for imports of processed agricultural products originating in Norway, as specified in the Annex, shall be opened duty-free from 1 January to 31 December 2004.
Article 2
The Community tariff quota referred to in Article 1 shall be managed by the Commission in accordance with Articles 308a, 308b and 308c of Regulation (EEC) No 2454/93.
Article 3
This Regulation shall enter into force on the third day following that of its publication in the Official Journal of the European Union.
It shall be applicable from 1 January 2004.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 16 December 2003. | [
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COUNCIL REGULATION (EEC) NO 3949/92
of 21 December 1992
relating to the organization of a survey of labour costs in industry and the services sector
THE COUNCIL OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Economic Community, and in particular Article 213 thereof,
Having regard to the proposal from the Commission,
Whereas, in order to carry out the tasks assigned to it by the Treaty, in particular those set out in Articles 2, 3, 117, 118, 122 and 123 thereof, the Commission must be kept informed of labour costs and workers' incomes in the Member States;
Whereas the statistical information available in each Member State does not provide a valid basis for comparisons, in particular because of the differences between the laws, regulations and administrative practices of the Member States, and whereas surveys must therefore be carried out and the results processed on the basis of uniform definitions and methods;
Whereas the best method of assessing the level, composition and trends of both labour costs and of workers' incomes is to carry out specific surveys, as was most recently done in 1989 in implementation of Council Regulation (EEC) No 1612/88 of 9 June 1988 relating to the organization of a survey of labour costs in industry, wholesale and retail distribution, banking and insurance (1), on the basis of accounting data relating to 1988;
Whereas, because of the major changes in the level and structure of expenditure by undertakings on wages and related employers' contributions, a new survey must be carried out based on accounting data for 1992 in industry, trade, banking and insurance, in order to bring up to date the results of the previous survey;
Whereas, because of the changes in the economic structures and the unemployment situation in the Member States the range of economic activities covered must be extended, particularly in the services sector;
Whereas, because of the size of the field covered, the survey must be based on a sample in order to avoid placing an excessive burden on the undertakings and the budgets of the European Communities and the Member States,
HAS ADOPTED THIS REGULATION:
Article 1
As part of its periodic surveys on labour costs and workers' incomes, the Commission shall conduct a survey on labour costs in industry and certain services sectors in 1993 on the basis of accounting data relating to 1992.
Article 2
1. The survey shall cover undertakings or local units with at least 10 employees carrying out the activities defined in sections C, D, E, F, G, H and K, divisions 65 and 66, and group 63.3 of the Statistical Classification of Economic Activities within the European Communities, NACE (Rev. 1), taking account of the special provisions set out in the Annex to this Regulation.
2. The survey shall be carried out by sampling.
Article 3
Employers shall, in respect of the undertakings or local units in the sample, provide the information needed to determine labour costs on the basis of accounting data for 1992 under the conditions set out below.
Article 4
The survey shall cover:
1.
wage costs, including bonuses and allowances, and all incidental expenditure, including in particular employers' contributions to social security and supplementary schemes and other social payments, including the cost of vocational training and any taxes and subsidies directly related to labour costs;
2.
the total staff employed by the undertakings or local units; and
3.
working hours.
Article 5
1. The information shall be collected by the statistical offices of the Member States, which shall draw up appropriate questionnaires.
In cooperation with those offices, the Commission shall determine the list of characteristics and definitions to be used for the surveys.
The Commission shall also, under the same conditions, stipulate the starting and closing dates for the survey and deadlines for replying to the questionnaires.
2. Persons required to supply information shall reply to the questionnaires truthfully, completely and within the time limits set.
Article 6
1. The statistical offices of the Member States shall process the replies to the questionnaires.
After verification, and in accordance with the utilization programme defined by the Commission, they shall forward the results of the survey, including the data declared confidential by the Member States pursuant to domestic legislation or practice concerning statistical confidentiality, in accordance with the provisions of Council Regulation (Euratom, EEC) No 1588/90 of 11 June 1990 on the transmission of data subject to statistical confidentiality to the Statistical Office of the European Communities (2). The said Regulation governs the confidential treatment of information.
2. The results shall be broken down by sector of economic activity according to NACE (Rev. 1), by region and by size category of undertaking or local unit.
Article 7
Individual items of information supplied for purposes of the survey may be used for statistical purposes only.
They may not be used for tax or other purposes or be communicated to third parties.
Article 8
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, 21 December 1992. | [
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Commission Decision
of 9 April 2002
declaring a concentration to be compatible with the common market and the EEA Agreement
(Case COMP/M.2568 - Haniel/Ytong)
(notified under document number C(2002) 1396)
(Only the German text is authentic)
(Text with EEA relevance)
(2003/292/EC)
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, and in particular Article 57(2)(a) thereof,
Having regard to Council Regulation (EEC) No 4064/89 of 21 December 1989 on the control of concentrations between undertakings(1), as last amended by Regulation (EC) No 1310/97(2), and in particular Article 8(2) thereof,
Having regard to the Commission Decision of 30 November 2001 to initiate proceedings in this case,
Having regard to the opinion of the Advisory Committee on Concentrations(3),
Having regard to the final report of the Hearing Officer in this case(4),
Whereas:
(1) On 16 October 2001 Haniel Bau-Industrie Porenbeton Holding GmbH, which belongs to the Haniel group ("Haniel"), notified the Commission under Article 4 of Regulation (EEC) No 4064/89 ("the Merger Regulation") of a planned concentration whereby Haniel was, by share acquisition, to acquire sole control of Ytong Holding AG ("Ytong").
(2) The Commission examined the notification and found that the notified transaction fell within the scope of the Merger Regulation and raised serious doubts as to its compatibility with the common market and the EEA Agreement.
(3) On 30 November 2001, the Commission therefore decided to initiate proceedings under Article 6(1)(c) of the Merger Regulation. In so far as the proposed concentration concerned Germany, the Commission adopted a decision on the same day referring the case to the competent German authorities under Article 9(3) of the Merger Regulation.
(4) Following a detailed investigation of the case, the Commission has now come to the conclusion that by itself the proposed concentration would indeed create or strengthen a dominant position as a result of which effective competition would be significantly impeded in a substantial part of the common market. But the commitments entered into by Haniel allow the competition concerns identified in respect of the concentration to be resolved.
I. THE PARTIES AND THE TRANSACTION
(5) Haniel is active in the construction materials industry, and specifically the manufacture and sale of wall-building materials such as sand-lime bricks, aerated concrete and ready-mixed concrete. Haniel's main centre of activities is Germany, but it is also active in the Netherlands through its indirect stake in the Dutch joint venture Coöperatieve Verkoop- en Produktievereniging van Kalkzandsteenproducenten ("CVK"). Haniel has a stake in around 30 sand-lime brick factories in Germany, eight in the Netherlands, one in Belgium and two in Poland. It operates a sand-lime facing brick factory in Denmark, and has stakes in three ready-mixed concrete plants in France.
(6) On 4 September 2001 Haniel notified its acquisition of Fels-Werke GmbH ("Fels"), a subsidiary of the German firm Preussag AG ("Preussag"), to the Commission as a concentration (COMP/M.2495 - Haniel/Fels). With regard to the German market, the Commission referred the case to the competent German authorities under Article 9 of the Merger Regulation on 30 November 2001. For the rest, the Commission declared the concentration compatible with the common market under Article 8(2) of that Regulation by decision dated 21 February 2002.
(7) Fels manufactures and sells - either itself or through its subsidiary Hebel AG ("Hebel") - building materials such as aerated concrete, lime products, plaster fibre plates and dry mortar. The firm is also active in the manufacture and sale of prefabricated houses made of aerated concrete and in the planning and construction of aerated concrete production plants.
(8) Haniel is party to another concentration too, notified on 24 January 2002 by Haniel and Cementbouw Handel & Industrie BV ("Cementbouw") (COMP/M.2650 - Haniel/Cementbouw/JV (CVK)). That notification had been requested by the Commission: Haniel and Cementbouw had acquired joint control of the Dutch sand-lime brick maker CVK. On 25 February 2002 the Commission took a decision initiating proceedings in the case under Article 6(1)(c) of the Merger Regulation. The proceedings are still pending.
(9) Ytong is a subsidiary of Rheinisch-Westfälische Kalkwerke AG, which in turn is controlled by the British firm RMC plc. Ytong manufactures and sells aerated concrete products and prefabricated houses in Germany, the Netherlands, Belgium, France and Austria.
(10) Haniel intends to acquire all Ytong's business shares.
II. CONCENTRATION
(11) Haniel intends to acquire all the business shares in Ytong and hence sole control of that firm. The transaction therefore constitutes a concentration within the meaning of Article 3(1)(b) of the Merger Regulation.
III. COMMUNITY DIMENSION
(12) The undertakings concerned have an aggregate worldwide turnover of over EUR 5 billion(5) (Haniel: EUR 18,7 billion, Ytong: EUR 0,4 billion). Both Haniel and Ytong have a Community-wide turnover of over EUR 250 million (Haniel: EUR 17,5 billion, Ytong: EUR 0,3 billion). Neither undertaking achieves more than two thirds of its aggregate Community-wide turnover within one and the same Member State. The notified concentration thus has a Community dimension.
IV. PROCEDURE
(13) On 13 November 2001 the Commission received a request from the competent German competition authority, the Bundeskartellamt, to refer the planned concentration to it in so far as it concerned Germany. The request for referral concerns the market in wall-building materials for rising back-up masonry in Germany, but not the markets in wall-building materials outside Germany. By decision of 30 November 2001 the Commission referred the part of the case relating to Germany to the competent German authorities.
(14) On 30 November 2001 the Commission decided under Article 6(1)(c) of the Merger Regulation to initiate proceedings in respect of that part of the case not referred to the German authorities.
(15) A hearing took place on 21 February 2002. Haniel and Ytong attended, as did Cementbouw and CVK.
V. COMPATIBILITY WITH THE COMMON MARKET
A. THE RELEVANT PRODUCT MARKETS
(16) The parties' operations overlap in the production and sale of wall-building materials. Haniel produces and sells sand-lime bricks and sand-lime blocks; in the Netherlands it does so via the Dutch joint venture CVK. Ytong produces aerated concrete. Besides sand-lime, aerated concrete and gypsum products, concrete products and clay bricks are also used in wall-building, as are, to a limited extent, steel plates and wooden panels.
1. THE PRODUCTS
(17) Sand-lime bricks are masonry units prepared from lime and sand by adding water and then compressing and hardening them under steam pressure. The bricks are used exclusively for building walls. They are generally rendered, filled in with thin plaster or hidden from view by a facing wall. When sand-lime masonry is visible, it generally consists of facing bricks, which are produced only in small formats(6). These form a separate market, which will not be discussed in detail here, as the parties produce such facing bricks only in small quantities. Besides sand-lime bricks, other, larger sand-lime walling units are used (usually measuring up to 900 mm x 625 mm x 300 mm in the Netherlands).
(18) Aerated concrete is a building material made from sand, lime and cement, to which aluminium powder is added during the manufacturing process. The powder reacts with water to form a fine porous structure. Aerated concrete products (bricks, blocks and other units) are used mainly in the construction of buildings. They can be used for both load-bearing walls - particularly in the case of blocks and very dense units - and non-load-bearing walls.
(19) Gypsum is a light wall-building material used only for non-load-bearing walls, as it has a very low load-bearing capacity. It is used in the form of gypsum plasterboards and planks.
(20) Concrete is another widely used wall-building material. Concrete walls can be made by pouring mixed concrete on site ("in-situ concrete") or by using precast concrete walling units. A third form of concrete comes in small-format concrete blocks. Concrete walls are built almost exclusively as load-bearing walls.
(21) In-situ concrete can be cast either by the traditional method of using formworks specially made on site or by "tunnel-forming" (tunnelgietbouw in Dutch) using prefabricated tunnel formworks, whereby walls and ceilings are cast in a single process.
(22) Precast concrete walling units are produced in factories to precise specifications, then transported on site and built into the building for which they are intended. They generally constitute entire walls and are thus considerably larger than the sand-lime bricks or blocks predominantly used in masonry work and require heavy equipment.
(23) Brick - the classic masonry material - is manufactured from a mixture of clay and water by firing at temperatures of over 1000 °C. However, the size of individual bricks is limited, as the firing process causes deformations such as shrinkage and warpage. Jointing is therefore generally necessary when working with these products in order to offset these deformations.
(24) Steel plates are used mainly in non-residential construction, and to a lesser extent in residential construction. For example, they are used to fill in wall space in load-bearing concrete or steel structures. In such cases the wall usually consists of two steel plates with insulating material between them (metal sandwich plates).
(25) Wooden panels are employed in industrial and residential construction, mainly in the form of prefabricated walling units used to close off the building on the outside where there are no load-bearing walls. In the Netherlands wood is used for load-bearing walls only in exceptional cases.
2. DEFINITION OF THE RELEVANT PRODUCT MARKET
(26) In determining the extent of a product market, the Commission has to consider various product market definitions. In this case it has to be borne in mind that the use and exchangeability of various wall-building materials depend to a not inconsiderable extent on national building practices and traditions and are thus in some respects very different in some EEA member countries. In its investigation, the Commission has focused essentially on conditions in the Netherlands since it is only in that Member State that the concentration leads to additional market shares which are significant from a competition point of view.
(a) Market definition proposed by the notifying party (wall-building materials)
(27) Haniel claims there is a single market in wall-building materials, given the existing conditions of competition, in particular the lack of any price difference based on use and the fact that they are invariably sold via the building-materials trade. This market includes all products which are used in the construction of walls: clay bricks, concrete blocks, sand-lime bricks, aerated concrete blocks, precast concrete walling units, other sand-lime and aerated concrete units, masonry mortar, in-situ concrete, steel plates, gypsum plasterboards and planks, and wooden panels. Haniel argues that, when a building is designed, there is generally a choice of various solutions for constructing the walls.
(28) Haniel states that the architect or project developer generally defines the requirements to be met in relation to the building's load-bearing capacity, age resistance, ease of maintenance, thermal insulation, fire protection and noise insulation. In some cases the architect also makes a selection of building materials in the building's specifications, but, according to Haniel, these specifications leave ample room for alternative solutions. Building contractors have a free choice of building materials, provided that the specifications are met. In the project proposal they can opt for a specific building material or put forward several possible solutions.
(29) Haniel does concede, however, that the various wall-building materials are not entirely interchangeable for every purpose. In view of the considerable differences in the demands made on building materials, depending on whether they are used for load-bearing or non-load-bearing walls, Haniel considers that there is a case for dividing the market in wall-building materials into materials for load-bearing and for non-load-bearing walls.
(b) Previous Commission practice (masonry/load-bearing masonry)
(30) In its decision on Preussag/Hebel(7), the Commission looked at two alternative product market definitions, but without adopting any firm position. On the one hand, it considered the possibility of a market for all materials that can be used to build up walls by the "brick-on-brick" method (masonry), including clay bricks, sand-lime bricks, aerated concrete blocks and pumice blocks. Its investigations at that time suggested that these products were interchangeable at the building planning stage. Within this market definition, the Commission also considered that a further distinction could be made between load-bearing and non-load-bearing walls (load-bearing masonry). It took no account of precast concrete walling units or in-situ concrete.
(c) Practice of the German Bundeskartellamt (masonry)
(31) The Bundeskartellamt has consistently defined the relevant market in wall-building materials in a similar manner to the Commission in its decision on Preussag/Hebel. In its decisions, the Bundeskartellamt assumes the existence of a market in building materials for rising back-up masonry which takes in aerated concrete products, sand-lime products, bricks, pumice blocks and concrete blocks (masonry). The Bundeskartellamt does not distinguish between load-bearing and non-load-bearing walls. As far as the Bundeskartellamt is aware, the materials used in Germany for both types of wall are essentially the same.
(d) Practice of the Dutch competition authority, the NMa (building materials for load-bearing walls)
(32) By contrast, the Nederlandse Mededingingsautoriteit ("NMa", the Dutch competition authority) draws a distinction between load-bearing and non-load-bearing walls because, to its knowledge, different materials are used for each type of wall in the Netherlands(8). Because of this difference in uses, sand-lime bricks, which are used for both types of wall, are in competition with different materials in each case. The NMa has included all wall-building materials used for load-bearing walls in its definition of the market in wall-building materials for load-bearing materials. This covers not only the wall-building materials for masonry mentioned in recital 31 (the "brick-on-brick" method), but also precast concrete units and in-situ concrete. However, it should also be pointed out that, in a subsequent decision, the NMa opened up the possibility of a distinction between in-situ concrete and other wall-building materials(9).
3. ASSESSMENT
(33) On the basis of the information available to it and, in particular, the market investigation it carried out in this case, the Commission, like the NMa, concludes (as it did in its decision of 21 February 2002 in Case COMP/M.2495 - Haniel/Fels) that there is a relevant product market in the Netherlands for building materials for load-bearing walls and a separate one for building materials for non-load-bearing walls, but that within these markets a further subdivision into masonry building materials and other materials (concrete products in particular) is not appropriate. The market in wall-building materials for load-bearing walls includes all building materials used for load-bearing walls, such as clay bricks, sand-lime bricks, aerated concrete, concrete blocks, precast concrete wall units and, possibly, in-situ concrete. The result of the market investigation suggests that in-situ concrete, in particular that cast by tunnel-forming, should be excluded. However, it is not necessary to settle this matter conclusively since it does not affect the assessment of the concentration. Likewise, the market for building materials for non-load-bearing walls thus covers all building materials used for non-load-bearing walls, such as sand-lime bricks, aerated concrete, gypsum plasterboards and planks, steel sheets and wood. This result is based on the following key factors.
(34) All the building materials included by Haniel in its proposed market definition are suitable for the building of walls and are actually used for this purpose. The Commission's market investigation in the Netherlands has shown, however, that not all of these materials are in competition with one another.
(a) Properties of the various wall-building materials
(35) Each of the abovementioned wall-building materials has specific properties that are taken into account in the selection of a specific wall-building material for a specific building project.
(36) Sand-lime bricks are in themselves a cheap building material which, though they cannot achieve the size of aerated concrete precast products, nevertheless, with dimensions of up to 900 mm x 625 mm x 300 mm, are larger than traditional bricks. Furthermore, sand-lime bricks, like aerated concrete, have a smooth surface that does not have to be evened out by jointing. The units can be cemented together. In addition, sand-lime products can be cut to shape at the factory in accordance with the building plans, so that units forming the gable or window openings can be pre-prepared. All these factors mean that less time and less expenditure on wage costs are needed than in the case of, for example, ordinary bricks. At the same time, sand-lime bricks do not require any large-scale investment in heavy cranes, as in the case of precast concrete wall units, or casting moulds, as in the case of in-situ concrete. In the Netherlands, because of their excellent load-bearing properties, sand-lime bricks are used for load-bearing walls and, to a lesser extent, also for non-load-bearing walls. In the Netherlands, something of the order of [60 to 80](10) % of sand-lime bricks are used in load-bearing walls. When they are used in non-load-bearing walls, sand-lime bricks have the disadvantage of being relatively heavy (about twice as heavy as aerated concrete). However, the material does have good sound-insulating properties and is suitable in particular for high, non-load-bearing walls, such as those often required in non-residential construction. Sand-lime bricks are the traditional and most popular wall-building material in the Netherlands.
(37) Precast concrete sections do not require masonry work as they are already the size of the wall to be produced. Concrete as a product can be produced from relatively simple raw materials. However, fairly large-scale resources such as cranes must be used in erecting such walls, and this in its turn involves some investment costs. Precast concrete walling units are therefore used primarily for somewhat larger projects, chiefly in non-residential construction (utiliteitsbouw, abbreviated to u-bouw in Dutch) rather than residential construction (woningbouw, abbreviated to w-bouw). Even so, savings can also be made in medium-sized residential construction projects where around 10 or more units are used, since the wall is produced at the factory and erection at the building site requires relatively little labour and takes relatively little time. The bigger the project, the lower the costs for the precast wall.
(38) In-situ concrete requires the largest amount of on-site investment in its use, particularly in-situ concrete used in tunnel-forming. The manufacture and use of the frameworks required for repeated casting in the tunnel-forming method are so costly that this method is worthwhile only if there is a minimum of 30 to 50 residential units and only if the latter are identical in form and size. There is therefore relatively little flexibility as to form and size in construction using in-situ concrete in the tunnel-forming method. However, flexibility is an important criterion in the Netherlands, even in the case of fairly large projects, so as to avoid uniformity. Tunnel-forming is therefore not a suitable alternative for smaller construction projects or those not involving rectangular shapes or repeated applications. In-situ concrete is also used in the construction of high-rises if their load-bearing capacity is ensured by means of a cast concrete skeleton to which non-load-bearing wall-building materials are attached.
(39) Aerated concrete is in itself an expensive wall-building material. It is produced from high-grade, expensive basic materials with high energy costs. Large sections must be reinforced with steel, which further increases the price, since reinforced sections entail significant costs in the manufacture of the reinforcing elements. In contrast to steel reinforcement in the case of ordinary concrete, the steel used for reinforcement here has to be coated in order to protect against corrosion. The constructional properties of aerated concrete are somewhat more limited than those of sand-lime bricks, but it is possible to use it to build up to two stories with load-bearing walls. Aerated concrete does, however, have excellent thermal insulation properties. In Germany, some 80 % of the aerated concrete products used in wall-building is used for load-bearing walls, while only 20 % is used in non-load-bearing walls. In the Netherlands, however, the ratio is the reverse: something like 80 to 85 % of aerated concrete is used in non-load-bearing walls.
(40) Gypsum is a light material. Because of this property, it is very well suited to non-load-bearing walls. The load-bearing demands placed on floors are small, and space is saved. Because of its lack of load-bearing capacity, gypsum is used only for non-load-bearing walls.
(41) Bricks are relatively small wall-building materials, and because of their uneven surface they are usually jointed. Their use entails relatively high labour costs and is relatively time consuming, and this makes bricks unsuitable for industrial construction.
(b) The distinction between wall-building materials for load-bearing and non-load-bearing walls
(42) The market investigation showed that the decision as to which building material to use for a specific project is influenced both by the client and the architect and by the building contractor. Exactly how much influence on the choice of wall-building material is exercised by each of these three groups of persons varies from case to case.
(43) The client's precise preferences regarding, for example, aesthetics and buildings costs are factors here, as are the architect's specifications. Criteria which are of relevance in the selection of the various wall-building materials are quality, constructional properties, flexibility of use, appearance, the purchase price of the material and the costs involved in using it. The special requirements of the building project must be taken into account in this respect, as must the use to which the building is to be put, the necessary load-bearing capacity, resistance to ageing, fire protection, sound insulating properties, other technical capabilities, timetable and the overall costs of the project. The building contractor's main criteria, in so far as he has any options regarding the choice of wall-building materials, are costs and building speed. These in turn are influenced by his experience with specific building materials and the resources and facilities (e.g. cranes) available to him. As far as the cost factor is concerned, it must be borne in mind that the cost of materials is always just one part of the overall costs of erecting a wall.
(44) In its market investigation, therefore, the Commission surveyed all these decision-makers to determine the basis of their conduct in selecting wall-building materials. Similarly, the manufacturers of the various building materials were asked to provide information. In the Netherlands, the survey showed that, in selecting building materials, a fundamental distinction was made between the choice of building materials for load-bearing walls and building materials for non-load-bearing walls.
(45) The difference between load-bearing and non-load-bearing walls, as the terms already suggest, is the load-bearing function of the relevant wall-building material. Load-bearing walls ensure the stability of a building. The relevant walls are often external walls. However, internal walls too may perform a load-bearing function. Such walls must be distinguished from walls which do not have any function in supporting the building, but merely divide up the space or fill gaps inside a load-bearing framework (external or internal walls). Building materials used in load-bearing walls must meet certain requirements as to resistance to pressure, load-bearing capacity and stiffness. Building materials used in non-load-bearing walls, by contrast, must meet other, possibly contrary requirements. Lighter, non-load-bearing walls, for example, have the advantage of making fewer demands on the load-bearing capacity of the ceilings. Thin non-load-bearing walls for their part save space.
(46) These varying requirements in respect of load-bearing and non-load-bearing walls result, in the Netherlands, in different building materials being selected for these different purposes. In the Netherlands, the main material used in load-bearing walls is sand-lime bricks. Sand-lime bricks are used in [50 to 60]* % of all load-bearing walls. Concrete is the next largest building materials category. In-situ concrete is used in 12 % of all load-bearing walls. At least two fifths of this building material is used in tunnel-forming(11). A total of 8 % is accounted for by load-bearing walls made from precast concrete wall units. Aerated concrete and bricks, accounting for proportions of 2 % and 5 % respectively, play a very minor role.
(47) In the case of non-load-bearing walls, by contrast, gypsum products are the main materials used. They account for 44 % of the materials used in non-load-bearing walls. Next comes aerated concrete with 20 %, followed by sand-lime bricks with [15 to 20]* %.
(48) This demand-side pattern is typical of the Netherlands and differs fundamentally from that in other countries, such as Germany. In Germany, the proportions in the use of aerated concrete for load-bearing and non-load-bearing walls are just the reverse of those in the Netherlands. Whereas in Germany 80 % of all aerated concrete products are used to construct load-bearing walls, in the Netherlands 85 to 90 % of all aerated concrete products are used in non-load-bearing walls. In Germany, concrete plays a minor role in load-bearing walls in residential construction, while bricks and other masonry units feature prominently. In Belgium, by contrast, concrete blocks appear to be much more widespread than in the Netherlands, and together with bricks to be the most common wall-building material. The use of in-situ concrete in tunnel-forming is much less widespread in Germany and Belgium than in the Netherlands.
(49) The reasons for these differences in demand-side behaviour stem, firstly, from differences in building traditions and aesthetic approaches and, secondly, from the advanced industrialised building methods used in the Netherlands.
(50) In the Netherlands, building and construction activity is based on large-scale projects even in the residential sector. Less than 20 % of all new residential building relates to individual house building. In Germany, by contrast, the figure is more than 90 %. In the Netherlands, large areas are released by the Government for building purposes, and on such areas the building and construction industry erects as much as several thousand residential units (e.g. VINEX locaties). In building projects on this scale, building materials that require high investment but involve lower wage costs, such as in-situ concrete using the tunnel-forming method, are profitable. Consequently, bricks, which are labour intensive at the building site (small size and need for jointing, though methods of cementing bricks do exist) and hence entail higher wage costs and are more time consuming, are used to only a minor extent.
(51) Sand-lime bricks are the traditional building material in the Netherlands; they are relatively cheap, and can be used with great flexibility, speed and on favourable cost terms in the building process (large units, cut to the required shape in the factory, no jointing necessary).
(52) Aerated concrete, which is very widely used in Germany in load-bearing walls because of its good heat-insulating properties, is, despite this advantage, not so widely used in the Netherlands because of its substantially higher price compared to sand-lime. In Germany, 30 cm-thick aerated concrete units are used for load-bearing walls. These have then only to be plastered and painted to produce a complete wall that meets high heat-insulation requirements. There are no costs for facing masonry and additional insulation. In the Netherlands, by contrast, smooth, plastered external walls are not customary. The preference there is for facades which give the impression of brickwork. This is done by means of brickwork facing in front of the load-bearing wall. This means that the cost advantage of aerated concrete, which does not need insulation and facing, is forfeited and hence that aerated concrete is a much more expensive building material than sand-lime. Consequently, aerated concrete is used only to a limited extent in the Netherlands for load-bearing walls in residential construction.
(53) However, since aerated concrete costs about the same as gypsum walls, is relatively light, but affords better heat insulation, aerated concrete products are used in the Netherlands for non-load-bearing walls. Sand-lime is also used here. This is because it has very good sound-insulating properties which may, in some cases, offset its disadvantages as a heavy building material. In addition, because of its constructional properties, it is particularly suitable for high, non-load-bearing walls, such as are required primarily in non-residential construction.
(54) There is therefore only limited competition in the Netherlands between, on the one hand, products used in load-bearing walls and, on the other, those used in non-load-bearing walls. This prompts the Commission to draw a distinction in the Netherlands between a relevant product market in load-bearing walls and one in non-load-bearing walls. This is despite the fact that some wall-building materials that are suitable for load-bearing walls may also be used in non-load-bearing walls and vice-versa. Sand-lime especially is in this category: it is the only wall-building material which is used to any significant extent equally in load-bearing and non-load-bearing walls. Firms which make products suitable for both types of wall are, in the market in load-bearing walls, in competition with a largely different set of competitors and faced with different competitive conditions than in the market in non-load-bearing walls.
(55) In setting its prices for products used in load-bearing walls, CVK, as the only sand-lime brick producer in the Netherlands, is not restricted by prices charged on the market in products intended for non-load-bearing walls. The Commission's market investigation shows that CVK often knows the specific use of its products(12) and might therefore be in a position to determine its prices on the basis of whether its sand-lime products are being used in load-bearing or non-load-bearing walls. If this is not the case, it is to be assumed that CVK tailors its pricing strategy primarily to the requirements of the market in load-bearing walls, since it sells [60 to 80]* % of its products on that market.
(56) The results of the market investigation raise the question of whether and to what extent in-situ concrete is also to be included in the market in wall-building materials for load-bearing walls. This applies in particular to in-situ concrete cast by tunnel-forming. As already explained in recital 38, this technique involves high fixed investment costs which become worthwhile only if at least some 30 to 50 residential units of identical form and size are to be built. This means that this method does not represent an alternative, not only in the case of small projects, but also in the case of large projects in which, for aesthetic and social reasons, a repetitive building style is to be avoided. Furthermore, as already explained, the tunnel-forming method allows not only walls but also, as part of the same process, ceilings to be produced. For these reasons, a decision to opt for the tunnel-forming method is not so much a price decision as a decision in favour of a particular system. However, the question of the inclusion of in-situ concrete and, in particular, in-situ concrete cast by tunnel-forming in the market in wall-building materials for load-bearing walls can be left open, as it does not affect the result of the assessment.
4. THE RESPONSE OF THE PARTIES TO THE STATEMENT OF OBJECTIONS
The views of the parties
(57) In its answer to the statement of objections, and at the hearing, Haniel said it maintained its view that the relevant market had to include all wall-building materials. Haniel conceded, however, that a case could be made for the distinction drawn by the Commission between building materials for load-bearing and non-load-bearing walls.
(58) The criticism Haniel regarded as essential concerned the possibility - which the Commission had raised but left open - that the product market might not include in-situ concrete, and more especially in-situ concrete cast by the tunnel-forming method. Haniel argued that these in-situ concrete products were in direct competition with other building products for load-bearing walls. Contrary to the view put forward by the Commission, this method of building did not entail any additional costs, and was not confined to large projects. The smallest number of residential units needed to make tunnel-forming worthwhile was 15, and not 30 to 50, as the Commission had stated. Tunnel-forming offered sufficient design flexibility to ensure that residential units built using it need not be identical in appearance.
(59) Cementbouw and CVK agreed.
Assessment
(60) In the statement of objections, the Commission left open the question whether and to what extent in-situ concrete ought to be included in the relevant market, and it will do so again in this decision. There is no need in this decision to settle the question since, even if one were to accept the broader definition of the relevant product market advocated by the parties, which includes all classes of in-situ concrete, Haniel would in any event hold a dominant position in the Netherlands, and that dominant position would be strengthened by the merger at issue here. Nevertheless, the Commission's market investigation does provide evidence to suggest the possibility that in-situ concrete, and particularly in-situ concrete cast using the tunnel-forming method, does not form part of the relevant market.
(61) The main grounds for this assertion have already been set out in detail. In addition, it should be borne in mind that if a builder working on a project decides to change over from sand-lime products for example to tunnel-formed in-situ concrete, the change will affect not only the wall-building materials but the flooring and roofing materials too. Thus changing over to tunnel-forming will mean changing the entire design of the building. For builders currently using sand-lime products, therefore, tunnel-formed in-situ concrete is a rather remote alternative.
(62) It has also to be borne in mind that tunnel-formed in-situ concrete can be used only for fairly large projects. The parties have admitted this, but say that the smallest number of residential units for which this material is economical is about 15 rather than the 30 to 50 alleged by the Commission. In any event, though, it is clear that on smaller building projects sand-lime bricks do not face competition from in-situ concrete(13). Aerated concrete in particular, which is produced by Ytong, may be used in smaller building projects of one to two residential units.
5. CONCLUSION CONCERNING THE RELEVANT PRODUCT MARKETS
(63) On the basis of the above considerations, the Commission takes the view that, for the purposes of assessing the notified concentration, a distinction has to be made in the Netherlands between a market in building materials for load-bearing walls and a market in building materials for non-load bearing walls. As far as the market in building materials for load-bearing walls is concerned, the question of whether in-situ concrete, in particular that used in tunnel-forming, is to be included in this market may be left open.
(64) In so far as the activities of Haniel and Ytong overlap in other Member States which, following the referral of part of the case to the German Bundeskartellamt, are still within the scope of the Commission's inquiries, the precise definition of the relevant product market can remain open, because whichever way the market is defined no competition concerns arise.
B. RELEVANT GEOGRAPHIC MARKETS
(65) Leaving aside Germany, the activities of Haniel and Ytong overlap in the Netherlands, Belgium and, possibly, France. As regards the part of the merger not referred to the Bundeskartellamt, the merger results in additions of market shares that are significant from a competition law point of view only in the Netherlands.
(66) Haniel defines the relevant geographic market with regard to the Netherlands as national. Although a few firms involved in the building-materials trade tend to operate on a regional basis, it argues, transport costs in the Netherlands are not of such significance that building materials cannot be supplied throughout the entire territory of the Netherlands. Haniel says that wall-building materials are transported by lorry, usually from the production site direct to the building site.
(67) The investigations have confirmed that the Dutch market is national. The market investigation has shown that the prices charged for most wall-building materials are calculated free at production site for delivery throughout the Netherlands, even though transport costs represent a not insignificant cost factor. CVK, as the only producer and supplier of sand-lime, can moreover supply any building site in the Netherlands direct from the nearest sand-lime works.
(68) Although in the Dutch border areas there are evidently imports of wall-building materials from Belgium and Germany into the Netherlands, these are marginal and do not justify the inclusion of parts of Belgium and Germany in the relevant geographic markets. The market investigation has revealed the existence of barriers to market entry based, in particular, on building and industrial safety regulations. For example, bricks laid manually may not weigh more than 18 kg in the Netherlands which is not the case in other Member States. On the other hand, building standards in Germany mean that walls of comparable wall thickness must be stronger and, given the extra materials that requires, are more expensive than in the Netherlands. All the important undertakings that operate on the Dutch market in wall-building materials are also established in the Netherlands. Belgian and German producers operating in the Netherlands also do so via Dutch subsidiaries.
(69) Accordingly, the Commission takes the view that the relevant geographic market, as far as the Netherlands is concerned is, for the purposes of this Decision, national.
C. COMPETITIVE ASSESSMENT
(70) The Commission considers that, through its shareholding in CVK - the only sand-lime brick manufacturer - Haniel already occupies a dominant position on the Dutch market in wall-building materials for load-bearing walls. This holds true irrespective of whether in-situ concrete as a whole or in-situ concrete cast by the tunnel-forming method is to be included in this market. This dominant position would be strengthened by the acquisition of Ytong. If Haniel also acquires Fels, this strengthening of a dominant position will be further accentuated.
(71) Haniel's and Ytong's activities overlap not only in the Netherlands but also in Germany, but the German markets are outside the scope of the Commission's inquiries in these proceedings. There is some small overlap in Belgium, and possibly in France too.
1. NETHERLANDS
(a) Control of CVK by Haniel
(72) The assessment of the merger in the Netherlands in the light of competition law depends on whether the market shares of the CVK cooperative, in which Haniel has an indirect shareholding of 50 %, are to be ascribed to Haniel.
(aa) Structure of CVK
(73) In the Netherlands there are altogether 11 sand-lime brickworks, all of which are members of CVK. Of these brickworks, five are wholly owned by Haniel, three are wholly owned by the Dutch building-materials group Cementbouw and the remaining three are owned 50/50 by Haniel and Cementbouw. The shares in CVK are apportioned among the 11 sand-lime brickworks that make it up in such a way that the wholly owned subsidiaries of Haniel and the wholly owned subsidiaries of Cementbouw together have equal-sized shareholdings in CVK, with the result that Haniel and Cementbouw each indirectly has a 50 % stake in CVK.
(74) CVK was originally set up to carry out joint marketing on behalf of its members; a pooling agreement concluded in 1999 transferred the management of the member companies to CVK. In the pooling agreement and in the statutes (statuten) of CVK, it is stipulated that CVK members are to be bound by CVK's instructions. There is only limited scope for the appointment of representatives of the shareholders to the governing bodies of CVK. On the managing board (Raad van Bestuur), no member may at the same time perform any function in a business belonging to any of the shareholders, and on the supervisory board (Raad van Commissarissen) only a minority of the members may do so. CVK member companies are also required to appoint CVK as one of not more than two managers of the particular company. The other manager is appointed by the company's own shareholders.
(75) Strategic decisions concerning CVK are taken by its managing board (Raad van Bestuur) by a simple majority. Members of the Raad van Bestuur and of the supervisory board (Raad van Commissarissen) are appointed and removed by the members' meeting. Pursuant to the pooling agreement and the statutes, no member of the Raad van Bestuur may perform any function in one of the parent companies of the CVK members (Haniel and Cementbouw), and no persons who perform any function in Haniel or Cementbouw may form a majority on the Raad van Commissarissen. The day-to-day management of CVK and its members is in the hands of the Raad van Bestuur; the Raad van Commissarissen exercises the supervisory powers normally vested in such an organ under Dutch company law without being able to exert a direct influence over strategic corporate decisions.
(bb) Joint control by Haniel and Cementbouw
(76) Haniel takes the view that, owing to CVK's corporate structure as described above, the cooperative is, despite the 50 % indirect interest which Haniel and Cementbouw each have in it, controlled exclusively by itself and not by its member companies and/or their shareholders.
(77) Pursuant to Article 3(3) of the Merger Regulation, the control of an undertaking consists in the possibility of exercising decisive influence on it. The question is whether the person or persons exercising control are in a position, alone or jointly, to determine the undertaking's strategic decisions. The decisive factor here as a rule is the composition and decision-making procedures of the body responsible for appointing and removing the management and approving any other strategic decisions.
(78) In CVK's case, strategic corporate decision-making is a matter solely for the Raad van Bestuur. Whoever determines the composition of the Raad van Bestuur is therefore in a position to control the undertaking, for it is to be expected that, when taking strategic decisions, the members of the Raad van Bestuur take into account the interests of the person or persons who decide whether to appoint or remove them. Since the members of the Raad van Bestuur are appointed by the CVK members' meeting by a simple majority, and since in the members' meeting the representatives of the member undertakings in which Haniel holds the entire share capital and the representatives of the member undertakings in which Cementbouw holds the entire share capital each have the same number of votes and hence the representatives of the member undertakings in which Haniel and Cementbouw each have a 50 % share have a casting vote, both Haniel and Cementbouw can indirectly block the appointment and removal of members of the Raad van Bestuur. Their joint agreement is accordingly needed for every appointment or removal of a member of the Raad van Bestuur.
(79) This means that Haniel and Cementbouw jointly control CVK within the meaning of Article 3(3) of the Merger Regulation.
(cc) The response of the parties to the statement of objections
The views of the parties
(80) In its answer to the statement of objections, and at the hearing, Haniel maintained its view that the rules of the pooling agreement and the statutes ensure that Haniel cannot exercise control over CVK. Haniel referred in particular to a decision taken by the Dutch competition authority, the NMa, dated 20 October 1998, which cleared a transaction giving CVK control of its member companies. At that time the shares in CVK's member companies were in the hands of three shareholders, namely Haniel, Cementbouw and RAG AG ("RAG").
(81) In its decision the NMa found that the pooling agreement and the corresponding changes to the CVK statutes broke the original economic and organisational links between the member companies and their owners in such a way that CVK would now have control of its members. This also meant that the member companies would not be under the control of their shareholders (Haniel, Cementbouw and RAG). The NMa attached decisive importance to the fact that, under the rules laid down, no member of the Raad van Bestuur and only a minority of the members of the Raad van Commissarissen were permitted to perform any function in businesses belonging to the shareholders.
(82) In support of its view, Haniel also refers to correspondence with the NMa in the first half of 1999, in which the NMa was informed that RAG proposed to withdraw from CVK and sell its shares in CVK member companies to Haniel and Cementbouw and was asked to indicate whether this constituted a concentration under Dutch law. The NMa confirmed that the reduction in the number of shareholders in the CVK member companies from three to two did not in any event constitute a concentration under Dutch law if it took place after the transaction which the NMa had approved. The decisive consideration, in the NMa's view, was that after that transaction the shareholders would not be able to exercise control over the CVK member companies, so that the number of shareholders would no longer affect the question of control.
(83) A further criticism made was that in its statement of objections the Commission had failed to consider the NMa decision and its reasoning. In addition, the Commission's decision would "negate" a decision of a national competition authority.
(84) This criticism was put forward by Haniel, Cementbouw and CVK jointly.
Assessment
(85) In examining the question of control of CVK, the Commission applied the tests of the Merger Regulation in conjunction with the practice established in its own decisions. It considered the relevant agreements between CVK and its members and between the shareholders, and other relevant documents such as the statutes of the CVK and the correspondence between the parties and the NMa referred to.
(86) The Commission concluded that control of CVK was exercised jointly by its shareholders Haniel and Cementbouw because each had a indirect 50 % holding in CVK and consequently a veto at the members' meeting, which acted by simple majority. It was the members' meeting that determined who would sit on CVK's governing bodies, which decided the strategy to be pursued by CVK, so that the veto rights at members' meetings gave their holders joint control of CVK: appointments could be decided only by the two acting in agreement.
(87) The decisive test applied by the Commission to determine who controlled CVK, namely the right to decide appointments to its governing bodies, is therefore different from the test applied by the NMa, namely the composition of the governing bodies. The two authorities consequently came to different conclusions on the question of control. RAG's withdrawal from CVK was assessed differently for the same reason. In the NMa's view, RAG's withdrawal after the restructuring of CVK - an exercise it had examined and allowed to happen - was irrelevant once CVK's member companies had been deprived of control whereas, in the Commission's view, it was RAG's withdrawal which conferred control on Haniel and Cementbouw. When there were three shareholders majorities at the members' meeting could shift. When one shareholder withdrew, the remaining shareholders were left with a 50 % holding each: it was this which gave them veto rights at the members' meeting, which was the point that decided the question of control. Under the system of the Merger Regulation, therefore, RAG's withdrawal was the transaction by which the two shareholders acquired control of CVK. The Commission does not question the fact that the pooling agreement and the amendments to CVK's statutes gave CVK control of its member companies, as the parties have pointed out and as was made clear in the NMa decision. But that does not affect the Commission's conclusion. The effect of CVK's acquisition of control of its member companies is rather that Haniel and Cementbouw, instead of exercising separate control of the member companies which are their respective wholly owned subsidiaries, and joint control of the member companies which they own jointly, now through their joint control of CVK exercise indirect joint control of all the member companies.
(88) In its statement of objections the Commission set out the reasons for its conclusion. The European Court of Justice has held consistently and in a wide variety of cases that the Commission is not in its reasoning obliged specifically to counter differing views or to answer objections that might conceivably be raised against the measures it proposes to take(14).
(89) Nor will the present decision negate a decision of a national competition authority. There is no need here to consider questions of the primacy of Community law and the exclusion of national powers to vet a transaction in the event that Community powers exist: this is because the Commission has concluded that the planned transaction which was approved by the Dutch competition authority is not the transaction entered into by Haniel and Cementbouw.
(90) In 1998 a planned concentration was notified to the NMa by which the 11 member companies of CVK, which were owned by three shareholders, were to be brought under the control of CVK; CVK was not controlled by the shareholders because alternative majorities were possible at the members' meeting. But, by means of a single set of agreements concluded on 9 August 1999, the parties did in fact bring the 11 member companies under CVK's control and at the same time - by selling RAG's shares in CVK member companies to Haniel and Cementbouw - convert CVK from an undertaking with three indirect shareholders to an undertaking with two shareholders with an indirect 50 % holding each, with these shareholders acquiring control of CVK. As part of this set of agreements, Haniel and Cementbouw also concluded a "cooperation agreement" on cooperation in CVK which contained, inter alia, arrangements for the closure of plants. This agreement was not in the NMa's possession when it took its decision in 1998.
(91) Even if one were to regard these steps as two separate transactions with a lapse of time in between, they are interdependent to a point where they have to be regarded as a single concentration. The legal steps which gave Haniel and Cementbouw joint control of CVK and the legal steps which gave CVK control of the 11 sand-lime brickworks were performed on the same day, 9 August 1999, and were recorded by the notary in a single document. The parties to the agreement wanted to link the two changes of control so that one could not take place without the other. The conclusion of the agreements that had been submitted to the Dutch competition authority was accordingly postponed until the negotiations on the transfer of RAG's shares were complete. Answering questions on this point put by the Commission at the hearing, Haniel expressly confirmed that the agreements that had been submitted for the NMa's approval were not implemented immediately in view of the desire that had since been expressed by RAG to withdraw from CVK. The implementation of these agreements was postponed until the negotiations with RAG regarding the transfer of its shares were complete since RAG did not want to take part in the new CVK structure. In economic terms, therefore, the two acquisitions of control form a unity and are to be regarded as a single concentration distinct from the concentration approved by the NMa.
(92) Even if one assumes that CVK's acquisition of control over its member companies and the acquisition by Haniel and Cementbouw of control over CVK were two distinct mergers, this would not alter the assessment that, on completion of the transactions described, Haniel and Cementbouw acquired joint control of CVK.
(dd) Conclusion
(93) The Commission is therefore of the opinion that for the purposes of this decision CVK's market shares must be assigned to Haniel.
(b) The market in wall-building materials for load-bearing walls
(94) Through its indirect holding in CVK, the sole manufacturer of sand-lime bricks, Haniel already holds a dominant position on the Dutch market in wall-building materials for load-bearing walls. This dominant position would be strengthened by the acquisition of Ytong. The grounds for this conclusion are set out below.
(aa) The structure of the market
(95) In 2000 the Dutch market in wall-building materials as a whole had a total volume quantity-wise of 3,8 million m3 and value-wise of some EUR 640 million. The market in wall-building materials for load-bearing walls had a volume of 2,1 million m3 and was worth EUR 356 million. If in-situ concrete is excluded from the load-bearing walls market, the size of the market shrinks to 1,8 million m3 and EUR 276 million. If only in-situ concrete cast by the tunnel-forming method is excluded, the market has a volume of 1,9 million m3 and a value of EUR 322 million(15).
(96) Below are the market shares (by volume) of the parties and of their main competitors including all load-bearing wall-building materials and, alternatively, excluding in-situ concrete and in-situ concrete cast by the tunnel-forming method(16):
TABLE
(bb) Existing dominant position of Haniel (CVK)
1. Grounds for assuming the existence of a dominant position
(97) The Commission considers that, through its holding in CVK, Haniel has a dominant position on the Dutch market in wall-building materials for load-bearing walls. This applies regardless of whether or not in-situ concrete should be included in this market.
(98) The European Court of Justice has defined a dominant position as a position of economic strength enjoyed by an undertaking which enables it to prevent effective competition being maintained on the relevant market by affording it the power to behave to an appreciable extent independently of its competitors, customers and ultimately consumers. Such a position does not preclude some competition, but enables the undertaking which profits by it, if not to determine, at least to have an appreciable influence on the conditions under which that competition will develop, and in any case to act largely in disregard of it so long as such conduct does not operate to its detriment.
(99) The existence of a dominant position may derive from several factors which, taken separately, are not necessarily decisive, but among which the existence of very large market shares is highly important. Important evidence of the existence of a dominant position is, moreover, the relationship between the market shares of the undertakings involved in the concentration and their competitors, especially those of the next largest(17).
(100) Haniel (CVK) has a share of more than [50 to 60]* % of the market in wall-building materials for load-bearing walls. Its main competitor is Cementbouw(18), with a market share of just under [2 to 5]* %. This figure does not take account of Cementbouw's stake in CVK, which for the purposes of this assessment is assigned in its entirety to Haniel. Cementbouw's market share of approximately [2 to 5]* % is based solely on its precast concrete walling unit and in-situ concrete activities. The next-largest competitor is the in-situ concrete manufacturer Mebin, with a market share of around [2 to 5]* %. Other competitors have market shares of 2 % or less.
(101) The market share of Haniel (CVK) is therefore more than 10 times bigger than that of the leading competitor. In view, however, of the close structural links between, and common interests of, Haniel and Cementbouw in CVK, it is by no means clear how far Cementbouw and Haniel are in competition with one another. The largest competitor with no links with Haniel is, with its [2 to 5]* % or so market share, much smaller, Haniel being [10 to 15]* times bigger than this competitor.
(102) If in-situ concrete were not to be included in the definition of the market in wall-building materials for load-bearing walls, the market share of Haniel (CVK) would be [60 to 70] % as Haniel (CVK) does not supply in-situ concrete. Furthermore, the largest independent competitor, Mebin, would then not be active in the relevant product market. This would leave only a limited number of much smaller competitors whose market shares do not exceed 2 %, or much less, even, in some cases. If only in-situ concrete cast by the tunnel-forming method is excluded from the market definition, the market share of Haniel (CVK) would be [50 to 60] %.
(103) None of Haniel's competitors in the Netherlands is active in the sand-lime brick sector. CVK is the only producer and supplier of this building material in the Netherlands. In that country, sand-lime bricks are, however, for the reasons given above, the traditional and, what is more, most popular wall-building material. Furthermore, they are the only wall-building material to be used to a significant extent in both load-bearing and non-load-bearing walls.
(104) Substantial market entry barriers exist. CVK controls all the sand-lime brick works in the Netherlands and hence the production of by far the most important wall-building material assignable to the relevant product market. The Commission's market investigation has shown that it would be possible for manufacturers of other wall-building materials to undertake the manufacture of sand-lime brick products only at great expense in terms of time and investment; the same is also true of other wall-building materials such as aerated concrete. The production processes and hence the production plants are different for each wall-building material. For these reasons, a switch of production by competitors is not considered a serious possibility.
(105) The customers of Haniel (CVK) have no buyer power. No one customer is potentially the buyer of a substantial part of CVK's output. In the case of sand-lime bricks, which are by far the most important of all the wall-building materials assignable to the relevant product market, there are no alternative suppliers.
(106) Haniel's market position can thus be summed up as follows: Haniel (CVK) has, at well over [50 to 60]* %, by far the biggest market share and is linked to the next-largest competitor, which is 10 times smaller, through CVK. The remaining market volume is fragmented and divided among competitors with market shares of just a few percent. Haniel controls, moreover, in the form of CVK, the only Dutch supplier of the most important building material in the Netherlands. The market power available to Haniel (CVK) is not offset by buyer power on the other side of the market. The combination of all these factors gives Haniel (CVK) a dominant position on the market in wall-building materials for load-bearing walls in the Netherlands.
2. The response of the parties to the statement of objections
The views of the parties
(107) In their answer to the statement of objections, and at the hearing, Haniel, Cementbouw and CVK maintained that CVK and hence Haniel did not have a dominant position in the Netherlands. They gave four main reasons for this:
- in-situ concrete is a material that exerts considerable competitive pressure on sand-lime bricks. In-situ concrete producers are invariably large enterprises,
- CVK's direct customers - building-material dealers - have considerable buyer power. Of CVK's sales, [60 to 80]* % is accounted for by the five largest building-material dealers, the biggest customer alone being responsible for about 21 %,
- market entry barriers are low. Haniel states that the investment in a sand-lime brickworks comes to about EUR [...]* million. An in-situ concrete producing plant costs as little as EUR [...]* million,
- in its pricing, CVK must take into account competitive conditions on the neighbouring market in wall-building materials for non-load-bearing walls, in which it has a weaker market position, inasmuch as in regard to a substantial part of its sales it does not know to what end use its products are put.
(108) To back up these arguments, CVK points out that in recent years it has lost market share to its competitors.
(109) Cementbouw takes the view that, despite its 50 % holding in CVK, it is to be regarded as a competitor independent of the latter.
Assessment
(110) The arguments advanced by the parties do not negate the grounds on which the Commission finds that CVK is in a dominant position. The following points are conclusive in this respect:
- in-situ concrete cannot be regarded as a material with which substantial competitive pressure can be brought to bear on CVK. In-situ concrete's share of the market in wall-building materials as a whole comes to only 12 %, Cementbouw's share being approximately [0 to 2] %. As indicated above, competitors on the wall-building-materials market are thinly spread. If, in line with the intervening parties' thinking, in-situ concrete is to be included in the relevant market, the largest competitor, the in-situ concrete producer Mebin, has a market share of only [2 to 5]* %, while the other competitors have less than 2 %. This can be contrasted with a [50 to 60]* % market share for CVK, the only supplier of sand-lime bricks. The competitive pressure on such a market depends not only on a product's market position but also on competitors' market positions. Of relevance to the market position of competitors is what products they supply. This is especially true in the present case because the relevant market is a differentiated product market in which different products compete for the same end-uses. The possibility of supplying a certain product that may be particularly appreciated by certain consumers or for certain uses may be of importance as far as a firm's position on such a market is concerned,
- the large building material dealers do not have any buyer power. First of all, even a [20 to 30]* % share of total purchases does not confer any buyer power on the largest customers because there are a sufficient number of other building-material dealers available as an alternative. A few of these building-material dealers are, moreover, purchasing cooperatives (in Dutch: inkoopcombinaties). What matters is that building-material dealers are dependent on trade in CVK's products. Sand-lime bricks are the most important wall-building material in the Netherlands. The next most important wall-building material is - also in the parties' opinion - concrete. But this is not an alternative as far as the building-materials trade is concerned as neither in-situ concrete nor - in appreciable quantities - precast concrete walling units are distributed via that trade. No other building-material can therefore, from the building-material dealer's point of view, replace the distribution of sand-lime bricks. Moreover, CVK has more influence over pricing vis-à-vis building contractors than the parties admit. The following points are significant in this respect. Building-material dealers bear the financial risk inherent in distribution. It is not building-material dealers that choose the building material, but building contractors. As already indicated, CVK is generally well informed about the identity of users and the destination of its products. Deliveries are made direct from whichever sand-lime brickworks is closest to the building site. According to CVK, discounts are granted to building-material dealers, whereby the latter may be required to supply the goods to specific building contractors or for specific building projects. Building contractors are, however, dispersed and not in a position to exercise any buyer power themselves,
- the arguments adduced by Haniel to the effect that there are no market entry barriers are not sound. The investment costs to which Haniel refers are contradicted by competitors surveyed by the Commission in the course of its market investigation, who state unanimously that it is only with the greatest difficulty that they could expand their existing production capacities or embark upon the manufacture of another wall-building material. During the market investigation, even Cementbouw's estimate of the investment costs was significantly higher than Haniel's. According to the competitors, there had been a small number of market entries, but they were confined to the concrete segment. Entries in the sand-lime brick segment were non-existent,
- according to the information in the Commission's possession, CVK is in a position, in its pricing, to take account of whether its products are used in either load-bearing or non-load-bearing walls. As stated above, sand-lime bricks are used essentially in load-bearing walls. CVK is aware of the specific use to which its products are put partly through its knowledge of the building site that is being supplied. It also has access, as far as sand-lime units are concerned, to the architects' plans for the building projects supplied by it. Haniel has pointed out, moreover, that the thickness of a substantial part of sand-lime brick products indicates whether they are being used in load-bearing or in non-load-bearing walls.
(111) There is no evidence in the Commission's possession to suggest that there has been any weakening of CVK's market position in favour of its competitors. On the contrary, Haniel has stated more than once in its correspondence with the Commission that operators' market shares have scarcely changed in recent years. Nor is there any evidence to suggest that the situation will change in the foreseeable future.
(112) The Commission does not agree with Cementbouw's assertion that it is to be regarded as a competitor independent of CVK. The Commission has already explained at length above that Cementbouw controls CVK jointly with Haniel and, for that reason alone, cannot be regarded as an independent competitor. Even if, as is maintained by the intervening parties, Cementbouw does not control CVK, a 50 % stake in a company with a [50 to 60]* % market share is so important a source of revenue that it is improbable that Cementbouw would not take this into account in its behaviour in relation to its other activities.
(cc) Strengthening of the dominant position of Haniel (CVK) through the merger
(113) The Commission is of the opinion that the concentration would strengthen the dominant position of Haniel (CVK) on the Dutch market in wall-building materials for load-bearing walls. The reasons for this are as follows:
1. Acquisition of Ytong
(114) On the assumption that Haniel acquires only Ytong, Haniel's market share would be increased by only around [0 to 2]* % to [50 to 60]* % as a result of the concentration. If in-situ concrete were deemed not to form part of the market in wall-building materials for load-bearing walls, Haniel's market share would be increased by [0 to 2]* % to [60 to 70]* %; and if only in-situ concrete cast by the tunnel-forming method were to be excluded from the relevant market, the increase would be [0 to 2]* % and the joint market share [60 to 70]* %. An additional factor is that, with sand-lime bricks, CVK controls by itself the most important wall-building material in the Netherlands. Owing to the abovementioned high market entry barriers, it is not to be expected that other suppliers will enter this segment. All of Haniel's competitors supply other products as wall-building materials for load-bearing walls. Cementbouw, the only supplier on the relevant market with a share of just under [2 to 5]* %, is itself a controlling shareholder of CVK and cannot therefore be considered an independent competitor. The remaining competition is widely dispersed, no one competitor having a market share in excess of [2 to 5]* %. None of the competitors is thus of appreciably greater significance on this market than Ytong. This means that positions on the Dutch market are already so well established that very little in the way of competition takes place there. Consequently, even a small increase in Haniel's market position in conjunction with other factors may significantly reduce the few remaining opportunities still open to competitors.
(115) The strengthening of the existing dominant position of Haniel (CVK) through the acquisition of Ytong cannot be assessed on the basis of the size of the increase in market share alone. In the wall-building materials sector as a whole, Ytong is the largest competitor operating independently of Haniel without structural links to Haniel. Ytong is, moreover, the leading supplier of aerated concrete in the Netherlands, a material which is used both in load-bearing and in non-load-bearing walls. With a total of some [...]* m3, Ytong sold more than five times as much aerated concrete in the Netherlands in 2000 as the only other supplier, Fels. As a result of the concentration, Haniel would therefore, with Ytong, acquire the largest producer of aerated concrete. In a differentiated product market, Haniel would thus be not only the sole supplier of sand-lime bricks, which is by far the most important wall-building material in the Netherlands, but, with [ > 80]* % of sales, would also become the main supplier of aerated concrete. It is true that aerated concrete is, in principle, in competition with sand-lime bricks and the other products belonging to the market in load-bearing wall-building materials. However, in a differentiated product market such as the present market, in which different products are in competition with one another for the same types of use, the ability to offer a specific product which is perhaps preferred by certain users or for certain purposes may be important to the market position of a firm.
(116) Customers surveyed as part of the market investigation stated that they saw a danger of significant price increases if Ytong, as an independent active supplier of aerated concrete, were to depart from the market.
(117) The market investigation has shown that Ytong is well established in particular as a supplier to the leading Dutch building-materials trading groups. The other supplier of aerated concrete in the Netherlands, Fels, has difficulties supplying them as well. Consequently, Fels is currently reliant on the "independent" dealers, who make fewer sales and are less strong financially. Furthermore, in contrast to Fels, Ytong has its own production facilities in the Netherlands and does not operate on the market solely through imports.
(118) Ytong's favourable position is based on its strong position on the neighbouring market in non-load-bearing wall-building materials. As has already been pointed out, aerated concrete is the only other significant wall-building material apart from sand-lime bricks which is used both for load-bearing and for non-load-bearing walls. In 2000 the Dutch market in wall-building materials for non-load-bearing walls had a volume of 1,7 million m3 and was worth EUR 282 million. The following table shows the market shares (by volume) of the parties and of their main competitors, all non-load-bearing wall-building materials being included(19):
Non-load-bearing wall-building materials
TABLE
(119) After Haniel, Ytong is the strongest competitor on the market in non-load-bearing wall-building materials. As the only supplier of sand-lime bricks, Haniel (CVK) is once again the strongest competitor here, with a market share of more than [15 to 20]* %. Ytong is with aerated concrete the second strongest competitor with almost [15 to 20]* %. As a result of a concentration, Haniel (CVK)/Ytong would thus become about [2 to 5]* times as large as the next largest competitor. That competitor, GIBO, has a market share of [10 to 15]* %. Fels, the only alternative supplier of aerated concrete, has a market share of around [2 to 5]* %. All the other competitors supply only gypsum products.
(120) This strong position of Ytong on the market in non-load-bearing wall-building materials has a direct impact on its position on the market in load-bearing wall-building materials. Its turnover on the market in non-load-bearing wall-building materials gives Ytong access to customers for load-bearing wall-building materials too, since they are the same on both markets. The marketing structure and distribution system can therefore be used equally on both markets. Other suppliers which - apart from Haniel and Fels - operate on only one of the two markets do not have this possibility. The same applies to investment in production facilities, which can be used for supplying both markets.
(121) Prior to the merger, Haniel (CVK) can supply only one wall-building material, sand-lime bricks. Following the merger, Haniel (CVK) plus Ytong would be in a position, through the supply of sand-lime bricks and aerated concrete, to cover the bulk of demand from building-material dealers for wall-building materials both for load-bearing and for non-load-bearing walls. This would increase Haniel's lead over the suppliers of materials competing with sand-lime bricks on the market in wall-building materials for load-bearing walls, since none of its competitors is similarly able to cover its customers' requirements so comprehensively.
(122) In these circumstances, it is to be expected that, through the takeover of Ytong, Haniel will be placed in a position to induce customers to a significant extent to obtain all their wall-building-material requirements from itself and thus to further restrict the scope of other suppliers. As a result, the competitive pressure emanating from other suppliers of wall-building materials for load-bearing walls would be further diminished, leading to higher prices.
2. Acquisition of Ytong and Fels
(123) If, as a result of exemption by the Commission and the Bundeskartellamt, Haniel is allowed to take over not only Ytong, but also Fels, competitors would be even less able to stand up to a market leader consisting of Haniel/Ytong/Fels. On the market in load-bearing wall-building materials, the market share of Haniel (CVK)/Fels amounting to [50 to 60]* % (or alternatively: [50 to 60]* % or [60 to 70]* %)(20) would be increased by about [0 to 2]* % through the acquisition of Ytong. On the market in non-load-bearing walls, the market share of Haniel (CVK)/Fels amounting to [20 to 30]* % would increase through the acquisition of Ytong to [40 to 50]* %.
(124) In the circumstances, Haniel would accordingly control not only the sole supplier of sand-lime bricks in the Netherlands, but also all producers of aerated concrete. As a result, the remaining competitive pressure exerted by aerated concrete on sand-lime bricks would disappear altogether. Haniel would then by itself be in control of the only two most important wall-building materials that can be used in both load-bearing and non-load-bearing walls. Moreover, Haniel would, through Fels, also supply what is currently the most important wall-building material used in non-load-bearing walls, i.e. gypsum. As the only competitor, Haniel would thus be in a position to supply these three important wall-building materials from one source.
3. The response of the parties to the statement of objections
The views of the parties
(125) In its answer to the statement of objections, and at the hearing, Haniel maintained that the acquisition of Ytong would not lead to any strengthening of a dominant position. Haniel gave three main reasons for this:
- Haniel asserts that a [0 to 2]* % increase in market share is too small to justify the claim that a dominant position will be strengthened. It points to a number of Commission decisions in which market share additions of this order of magnitude were not considered sufficient for such a strengthening. It finds the Commission's attitude in this case to be inconsistent with its decision in Case COMP/M.2495 - Haniel/Fels. The Commission cleared Haniel's acquisition of Fels because it did not consider Fels's market position to be sufficient to strengthen a dominant position. Fels has a market share of [0 to 2]* %,
- the position of Ytong on the neighbouring market in non-load-bearing wall-building materials is not such as to influence Ytong's position on the market in load-bearing wall-building materials. Like the producers of other wall-building materials, Ytong has for decades had access to the building-material trade's distribution system. Owing to its considerable market share in the sand-lime brick segment, Haniel is already present in the neighbouring market in wall-building materials for non-load bearing walls, so any advantages stemming from a simultaneous presence in both markets already existed and would not be increased by the acquisition of Ytong. Moreover, apart from sand-lime bricks, aerated concrete is not the only wall-building material to be used in both load-bearing and non-load-bearing walls, as this also applies to clay bricks, concrete blocks and precast concrete units,
- Haniel can derive no advantage from being able to supply aerated concrete in addition to sand-lime bricks as in the building-materials trade a full product range includes more than just wall-building materials. There is, moreover, no commercial incentive to supply such a combination as only 50 % of profits on CVK's sales go to Haniel, whereas Haniel would receive all of the profit on Ytong's sales.
Assessment
(126) The arguments advanced by the parties cannot refute the grounds on which the Commission finds that CVK is in a dominant position. The reasons for this are as follows:
- the small size of the market share increase is not decisive as a means of excluding the strengthening of a dominant position. Haniel itself points out in its reply to the statement of objections that the market position cannot be inferred schematically from the market shares. As explained in detail above, the Commission was also influenced by this aspect when making its assessment. It focused on all factors constituting Ytong's market position, and explained in detail in this connection why the market positions of Ytong and Fels differ in such a way that it can rule out a strengthening in one case and rule it in in the other. The factors mentioned include the fact that Ytong is the leading supplier of aerated concrete in the Netherlands and sells five times more aerated concrete than Fels. Moreover, in assessing the size of the market shares and their ability to strengthen an existing dominant position, the size of the other market players has to be taken into account. None of the competitors is substantially larger than Ytong. Ytong's market share is twice the size of Fels's and there are a large number of substantially smaller suppliers of wall-building materials whose market shares are low, being well below [0 to 2]* %. The present case is characterised, furthermore, by a differentiated relevant product market. Every wall-building material has specific characteristics (see above for a detailed description), and any given wall-building material may be more suitable for some uses than for others. In-situ concrete, and in particular that cast by the tunnel-forming method, is, for example, better suited to larger projects, while aerated concrete is used in load-bearing walls in the Netherlands primarily in houses and hence in smaller-sized projects. On a scale depicting the magnitude of projects, in-situ concrete cast by tunnel-forming would therefore be right at the top, followed by in-situ concrete made by other methods. Aerated concrete would be at the bottom end of the scale, while sand-lime bricks would fill almost the entire scale. The acquisition of a product such as aerated concrete will therefore, by adding a further product, very likely strengthen an existing dominant position based on a single product such as sand-lime bricks,
- the arguments adduced by the intervening parties do not refute the considerations demonstrating that Ytong's position on the neighbouring market in non-load-bearing wall-building materials is quite likely to influence its position on the load-bearing walls market. The fact that Haniel already has, through CVK, a considerable market share on this neighbouring market with sand-lime bricks does not invalidate the above conclusion. As a result of the acquisition, Haniel could offer a further product in the form of aerated concrete on both markets. Ytong's established access to the large building-material dealers, through whom, as Haniel points out, almost all aerated concrete is distributed in the Netherlands, was expressly emphasised by the Commission, whereas Fels clearly does not have such access. Such access is, however, useful for purposes of distribution in both markets, with the result that a strong position on one of the two markets definitely strengthens the position on the other market. In contrast to other wall-building products such as clay bricks or concrete, aerated concrete is one of the three leading wall-building materials for non-load-bearing walls apart from sand-lime bricks, which are supplied by Haniel alone, and gypsum. These three products together make up more than [ > 80]* % of the wall-building materials used in the non-load-bearing wall sector. Of these, only sand-lime bricks and aerated concrete are also used in load-bearing walls,
- nor does the fact that the building-materials trade supplies a large number of products stand in the way of the above advantages. On the contrary, the acquisition of the largest aerated concrete producer in the Netherlands would increase building-material dealers' existing dependence on CVK's sand-lime brick products even further as they would henceforth have to rely extensively on CVK also for the distribution of aerated concrete. Since, as has already been explained, concrete products are not distributed via the building-materials trade, the building-materials trade would have to obtain a substantial part of the wall-building materials it distributes from Haniel through CVK. An economic incentive for the parties stems from the fact that the total attainable earnings can be increased by selling both products under one roof.
4. Result
(127) The Commission therefore concludes that the merger will strengthen the existing dominant position of Haniel (CVK) in the market for wall-building materials for load-bearing walls in the Netherlands - all the more so if Haniel simultaneously acquires Fels.
(c) The market in wall-building materials for non-load-bearing walls
(128) As stated in recital 115, Haniel has in the Netherlands, through its indirect stake in CVK, the only producer of sand-lime bricks, a strong, though not dominant, position on the market in wall-building materials for use in non-load-bearing walls. The acquisition of Ytong would not lead to the creation of a dominant position on this market. This would also be the case if Haniel were in addition to acquire Fels as well. The reasons for drawing this conclusion are as follows.
(129) Haniel (CVK) is, with a market share of [15 to 20]* %, the market leader on the market in wall-building materials for non-load-bearing walls and - as already stated - the only supplier of sand-lime bricks, the main building material for both load-bearing and non-load-bearing walls. As the leading producer of aerated concrete for non-load-bearing walls, Ytong, with a [15 to 20]* % market share, is very close to the market position of Haniel (CVK), and the three main gypsum producers, GIBO, Lafarge and Gyproc, have substantial market shares of between [5 to 10]* % and [10 to 15]* %. Given this market structure prior to the merger, the possibility of Haniel (CVK) having a dominant position can be ruled out.
(130) As a result of the merger with Ytong - a supplier of aerated concrete with a not insignificant market share of [15 to 20]* % - Haniel's market share would increase to [30 to 40]* %, thus widening the gap between it and its next largest competitors. Haniel would extend its product range to include aerated concrete, an important product for non-load-bearing walls. However, given the existence of strong competitors, especially in the gypsum segment, it is not to be expected that, as a result of the takeover of Ytong, Haniel would increase its competitive room for manoeuvre to such an extent that a dominant position would be created by the concentration.
(131) The same points apply if Haniel were in addition to acquire Fels as well. Haniel's market share would admittedly then increase to [40 to 50]* % and its product range would be extended to include gypsum. Haniel would thereby not only consolidate its position as market leader, but it would also be the only competitor to be able to supply all three essential wall-building materials for non-load-bearing walls. Nevertheless, the market structure outlined in the preceding recital suggests that, even in these circumstances, Haniel would not acquire a dominant position on the market in wall-building materials for non-load-bearing walls.
2. OTHER NATIONAL MARKETS
(132) Apart from in Germany, whose markets are not being examined by the Commission in these proceedings, and the Netherlands, the concentration would also lead to additions of market shares in Belgium, France and, if Haniel were to take over Fels, Austria.
(133) In Belgium, Haniel has one sand-lime brick factory. Ytong owns one aerated concrete plant there. The combined share of Haniel and Ytong in the sale of wall-building materials is [2 to 5]* % and, if all wall-building materials are included (including precast concrete products and in-situ concrete), less than [2 to 5]* %. Fels (Hebel) sells wall-building materials there but does not have any production plants of its own. The combined share of Haniel, Ytong and Fels in the sale of wall-building materials is [5 to 10]* % and, if all wall-building materials are included (including precast concrete products and in-situ concrete), less than [2 to 5]* %. Even if a distinction is made between building materials for load-bearing and non-load-bearing walls, these market shares are such that the possibility of their reaching competitively critical thresholds can be ruled out.
(134) In France, Haniel has a stake in ready-mixed concrete plants. Ytong owns one aerated concrete plant there. Market share additions will arise only if one assumes a larger market for wall-building materials that includes precast concrete products and in-situ concrete. In that case, the combined market share amounts to about [0 to 2]* %. Fels (Hebel) operates three aerated concrete plants in France. The combined share of Haniel, Ytong and Fels in the sale of wall-building materials is less than [2 to 5]* % and, if all wall-building materials are included (including precast concrete products and in-situ concrete), less than [2 to 5]* %. Even if a distinction is made between building materials for load-bearing and non-load-bearing walls and/or if a possible regional market definition is applied, these market shares are such that the possibility of their reaching competitively critical levels can be ruled out.
(135) Haniel is not active in Austria. Fels distributes in Austria, through a subsidiary, aerated concrete products and gypsum plasterboards. However the market is defined, Fels thus has market shares of less than 2 %. In the market in masonry materials, that market share is even less than [0 to 2]* %. Ytong operates one plant and sells aerated concrete products. In the market in masonry materials, the combined market share of Haniel, Fels and Ytong is about [5 to 10]* %, and in the market in wall-building materials about [2 to 5]* %. Even if a distinction is made between building materials for load-bearing and non-load-bearing walls, these market shares are such that the possibility of their reaching competitively critical levels can be ruled out.
(136) The concentration will not therefore lead to the creation or strengthening of a dominant position in Belgium, France and Austria.
3. RESULTS OF THE COMPETITIVE ASSESSMENT
(137) The Commission accordingly comes to the conclusion that the takeover of Ytong by Haniel would lead to a strengthening of a dominant position on the Dutch market in wall-building materials for load-bearing walls. If Haniel were in addition to acquire Fels as well, this strengthening of a dominant position would be even further accentuated. The Commission draws this conclusion irrespective of whether in-situ concrete cast by the tunnel-forming method or in-situ concrete as a whole is to be included in this market.
VI. COMMITMENTS SUBMITTED BY HANIEL
(138) In order to remove the Commission's objections in relation to the market in wall-building materials for load-bearing walls in the Netherlands, Haniel has submitted the commitments described below. They are set out in full in the Annex.
(139) Ytong Holding AG holds all the shares in Ytong Nederland BV (hereinafter called "Ytong Nederland"). Haniel undertakes to cause this shareholding in Ytong Nederland to be sold within a period fixed for that purpose. The purchaser must be in a position to operate Ytong Nederland as an active force in competition with Haniel.
(140) Haniel undertakes, moreover, to ensure that, in the contracts to be concluded with the purchaser of the shareholding in Ytong Nederland, a provision is included to the effect that Ytong Nederland may control permanently the "Durox" trademark and, in the Netherlands for a transitional period provided for in the commitment, the "Ytong" trademark.
(141) The period for fulfilment of the commitments starts to run at the time of service of the Commission decision in Case COMP/M.2650 - Haniel/Cementbouw/JV (CVK) (hereinafter called the CVK decision). If an action is brought against the CVK decision under Article 230 of the EC Treaty or if applications for suspension of execution or other interim measures are made under Articles 242 and 243 of the EC Treaty, the period will start to run at the time of service of the order on the applications for suspension of execution or other interim measures pursuant to Article 107 of the Rules of Procedure of the Court of First Instance.
(142) The commitments will be without effect if, within the period referred to in recital 141 and within the framework of proceeding COMP/M.2650 Haniel/Cementbouw/JV (CVK), CVK is dissolved or undertakings in which Haniel has a direct or indirect interest no longer have a stake in CVK. If these circumstances obtain after the sale of the shares in Ytong Nederland by Haniel, the Commission may at Haniel's request annul the obligation to sell or amend it in Haniel's favour.
(143) With the Commission's agreement, Haniel may be granted a repurchase right in the sales contracts should the circumstances referred to in recital 141 obtain.
(144) The commitments also contain standard clauses on separate administration of the company to be sold and rules on trusteeship.
VII. COMPETITIVE ASSESSMENT OF THE NOTIFIED TRANSACTION IN THE LIGHT OF HANIEL'S COMMITMENT
A. ASSESSMENT OF THE COMMITMENT TO SELL THE SHAREHOLDING IN YTONG NEDERLAND
(145) In the Commission's opinion, the commitments described in recitals 135 to 141 suffice suitably to remove the objections regarding the Dutch market in wall-building materials for load-bearing walls. This has also been confirmed by the market investigation.
(146) As a result of the sale of Ytong's shareholding in Ytong Nederland, the combination, due to the concentration, of the market positions of Haniel (CVK) and Ytong on the relevant market will no longer occur. After the sale, Ytong Nederland will be in a position, as an independent competitor on the Dutch market in wall-building materials for load-bearing walls, to limit the room for manoeuvre of Haniel (CVK) in the same way as before the concentration.
(147) Ytong is active on the Dutch market exclusively through Ytong Nederland, so that after the sale the combination, due to the concentration, of the market shares of Haniel (CVK) and Ytong on the relevant market will be completely eliminated. Ytong Nederland is a legally independent undertaking with two production plants for aerated concrete products and an independent marketing structure. Prior to its being taken over by Ytong, it was, moreover, active on the Dutch market as an independent undertaking with no parent company.
(148) Ytong Nederland will be able to continue to use the "Ytong" trademark, under which its products are currently marketed, for a limited period only. Nevertheless, the Commission is convinced that the period provided for will enable Ytong Nederland to switch from using the "Ytong" trademark for marketing purposes to using the "Durox" trademark. The "Durox" trademark, under which the Dutch undertaking used to market its products before it was taken over by Ytong, continues to enjoy an excellent reputation among consumers of wall-building materials on the Dutch market.
B. TERMINATION OF THE OBLIGATION TO SELL YTONG NEDERLAND IF THE COMPETITION CONCERNS PUT FORWARD BY THE COMMISSION IN CASE COMP/M.2650 - HANIEL/CEMENTBOUW/JV (CVK) ARE RESOLVED
(149) The Commission is currently seeking to establish whether the acquisition of joint control of CVK by Haniel and Cementbouw in 1999 is to be considered a concentration within the meaning of the Merger Regulation with respect to its effects on the Dutch market in wall-building materials (Case COMP/M.2650 - Haniel/Cementbouw/JV (CVK)). On 25 February 2002 it decided to intimate proceedings in that case under Article 5(1)(c) of the Merger Regulation. The Commission must take a final decision on the compatibility of that concentration with the common market by 5 July 2002.
(150) As things stand at present it seems possible that in its decision in Case COMP/M.2650 case the Commission will either come to the conclusion that following modification the concentration it is compatible with the common market, as provided in Article 8(2) of the Merger Regulation, or require action that may be appropriate in order to restore conditions of effective competition, as provided in Article 8(4) of the Regulation. It may be that the dominant position which Haniel holds on the relevant market, and which has been identified here, will be brought to an end by any commitments entered into by the parties to the concentration in Case COMP/M.2650 with a view to a Commission decision under Article 8(2) of the Merger Regulation, or by any action required by the Commission under Article 8(4) of the Merger Regulation in order to restore conditions of effective competition; and in that event the concentration which is the subject of the present proceedings would no longer strengthen such a dominant position.
(151) In the situation described in recital 150, the commitment entered into by Haniel would no longer be needed in order to prevent the concentration at issue here from strengthening a dominant position on the relevant market, and it seems appropriate in that event to release Haniel from its commitment to dispose of Ytong Nederland. The commitment entered into by Haniel therefore includes a clause stating that the promise to sell Ytong Nederland will be without effect if, in the proceedings in Case COMP/M.2650 and in accordance with the conditions set out in recitals 141 and 142, CVK is wound up or steps are taken to ensure that no firm participates in CVK in which Haniel already participates directly or indirectly.
C. OVERALL ASSESSMENT OF THE COMMITMENTS
(152) The Commission has accordingly come to the overall conclusion that, provided Haniel complies with the commitment it has entered into, the notified concentration would not strengthen Haniel's dominant position on the market in wall-building materials for load-bearing walls in the Netherlands.
VIII. CONDITIONS AND OBLIGATIONS
(153) The first sentence of the second subparagraph of Article 8(2) of the Merger Regulation states that the Commission may attach to its decision conditions and obligations intended to ensure that the undertakings concerned comply with the commitments they have entered into vis-à-vis the Commission with a view to rendering the concentration compatible with the common market.
(154) Measures that effect a structural change to the market will be imposed in the form of "conditions"; implementing steps necessary to achieve this result will take the form of "obligations". If a condition is not fulfilled, the Commission decision declaring the concentration compatible with the common market is null and void. Where the undertakings concerned commit a breach of an obligation, Article 8(5)(b) of the Merger Regulation empowers the Commission to revoke a clearance decision, and Articles 14(2)(a) and Article 15(2)(a) empower it to impose fines or periodic penalties on the parties(21).
(155) In accordance with this basic distinction, the Commission decision should be made subject to the condition that Haniel's commitments regarding the disposal of its stake in Ytong Nederland are complied with in full(22). These commitments serve to counterbalance the perceived strengthening of Haniel's dominant position on the Dutch market in wall-building materials for load-bearing walls and thereby to preserve competition on that market. By contrast, all the remaining parts of the statement of commitments, and in particular the commitment to temporary retention and separate management of the stake to be disposed of, and the detailed arrangements regarding the trustee to be appointed by Haniel are to be made subject to obligations since they are designed solely to apply the conditions mentioned previously.
IX. CONCLUSION
(156) Provided the commitments entered into by Haniel are fully complied with, therefore, it can be accepted that the planned concentration would not create or strengthen a dominant position as a result of which effective competition would be significantly impeded in the common market or in a substantial part of it. Always provided the commitments set out in the Annex are complied with in full, the concentration should be declared compatible with the common market and the EEA Agreement under Articles 2(2) and 8(2) of the Merger Regulation and Article 57 of the EEA Agreement,
HAS ADOPTED THIS DECISION:
Article 1
The notified concentration by which Haniel Bau-Industrie Porenbeton Holding GmbH acquires sole control within the meaning of Article 3(1)(b) of the Merger Regulation of Ytong Holding AG is declared compatible with the common market and the EEA Agreement.
Article 2
Article 1 shall apply subject to the condition that the commitments entered into by Haniel Bau-Industrie Porenbeton Holding GmbH and set out in points 1, 2, 9 and 17 of the Annex are complied with in full.
Article 3
The obligation is attached to this decision that the other commitments entered into by Haniel Bau-Industrie Porenbeton Holding GmbH and set out in the Annex must be complied with in full.
Article 4
This decision is addressed to:Haniel Bau-Industrie Porenbeton Holding GmbH
D-47119 Duisburg-Ruhrort
Done at Brussels, 9 April 2002. | [
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COUNCIL REGULATION (EC) No 2764/98 of 17 December 1998 fixing, for the 1999 fishing year, the guide prices for the fishery products listed in Annex II to Regulation (EEC) No 3759/92
THE COUNCIL OF THE EUROPEAN UNION,
Having regard to the Treaty establishing the European Community,
Having regard to Council Regulation (EEC) No 3759/92 of 17 December 1992 on the common organisation of the market in fishery and aquaculture products (1), and in particular Article 9(3) thereof,
Having regard to the proposal from the Commission,
Whereas Article 9(1) of Regulation (EEC) No 3759/92 provides for a guide price to be fixed annually for each of the products or groups of products listed in Annex II to that Regulation;
Whereas, according to the data available at present concerning prices for the products in question and the criteria laid down in Article 9(2) of that Regulation, these prices should be increased, maintained or decreased according to the species for the 1999 fishing year,
HAS ADOPTED THIS REGULATION:
Article 1
The guide prices for the fishing year from 1 January to 31 December 1999 for the products listed in Annex II to Regulation (EEC) No 3759/92 and the commercial categories to which they relate shall be fixed as set out in the Annex hereto.
Article 2
This Regulation shall enter into force on 1 January 1999.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 17 December 1998. | [
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COMMISSION REGULATION (EEC) No 1171/91 of 6 May 1991 fixing for the 1991 marketing year the reference prices for cherries
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Economic 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 Regulation (EEC) No 3920/90 (2), and in particular Article 27 (1) thereof,
Whereas, pursuant to Article 23 (1) of Regulation (EEC) No 1035/72, reference prices valid for the whole Community are to be fixed at the beginning of the marketing year;
Whereas cherries are produced in such quantities in the Community that reference prices should be fixed for them;
Whereas cherries harvested during a given crop year are marketed from April to September; whereas the quantities harvested in April, during the first 20 days of May and from 11 August to 30 September are so small that there is no need to fix reference prices for these periods; whereas reference prices should be fixed only for the period 21 May to 10 August inclusive;
Whereas Article 23 (2) (b) of Regulation (EEC) No 1035/72 stipulates that reference prices are to be fixed at the same level as for the preceding marketing year, adjusted, after deducting the standard cost of transporting Community products between production areas and Community consumption centres in the preceding year, by:
- the increase in production costs for fruit and vegetables, less productivity growth, and
- the standard rate of transport costs in the current marketing year;
Whereas the resulting figure may nevertheless not exceed the arithmetic mean of producer prices in each Member State plus transport costs for the current year, after this amount has been increased by the rise in production costs less productivity growth; whereas the reference price may, however, not be lower than in the preceding marketing year;
Whereas to take seasonal variations into account, the year should be divided into several periods and a reference price fixed for each of these periods;
Whereas producer prices are to correspond to the average of the prices recorded on the representative market or markets situated in the production areas where prices are lowest, during the three years prior to the date on which the reference price is fixed, for a home-grown product with defined commercial characteristics, being a product or variety representing a substantial proportion of the production marketed over the year or over part thereof and satisfying specified requirements as regards market preparation; whereas, when the average of prices recorded on each representative market is being calculated, prices which could be considered excessively high or excessively low in relation to normal price fluctuations on that market are to be disregarded;
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
For the 1991 marketing year, the reference prices for cherries falling within CN code 0809 20, expressed in ecus per 100 kilograms net, of packed products of class I, of all sizes, shall be as follows:
May (21 to 31): 140,71
June: 125,70
July: 115,49
August (1 to 10): 88,58. Article 2
This Regulation shall enter into force on 21 May 1991. This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 6 May 1991. | [
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*****
COMMISSION DECISION
of 1 February 1990
terminating the proceeding under Article 13 (10) of Regulation (EEC) No 2423/88 concerning plain paper photocopiers assembled or produced in the Community by Ricoh Industrie France SA
(90/47/EEC)
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Economic Community,
Having regard to Council Regulation (EEC) No 2423/88 of 11 July 1988 on protection against dumped or subsidized imports from countries not members of the European Economic Community (1), and in particular Article 13 (10) thereof.
After consultations within the Advisory Committee as provided for under Regulation, (EEC) No 2423/88
Whereas:
A. PROCEDURE
(1) In January 1988, the Commission received a complaint lodged by CECOM, the Committee of European Copier Manufacturers, on behalf of producers of plain paper photocopiers (PPCs) whose collective output constitutes a major proportion of Community production of the product in question. The complaint contained sufficient evidence of the fact that, following the opening of the investigation concerning PPCs originating in Japan (2) which led to the adoption of Council Regulation (EEC) No 535/87 (3) imposing a definitive anti-dumping duty on imports of those products, a number of companies were assembling PPCs in the Community under the conditions referred to in Article 13 (10) of Regulation (EEC) No 2423/88.
(2) On 17 February 1988 the Commission announced (4) that it had commenced an investigation in respect of PPCs assembled in the Community by Canon Inc., Konishoroku Photo Industry Co., Matsushita Electric Co. Ltd, Minolta Camera Co. Ltd, Ricoh Company Ltd, Sharp Corporation and Toshiba Corporation. By Council Regulation (EEC) No 3205/88 (5) and Commission Decision 88/519/EEC (6), the findings of the investigation were made known.
Subsequent to this investigation, the Commission established that Ricoh Company Ltd had begun production or assembly of the product concerned at its wholly-owned subsidiary in France, Ricoh Industrie France SA.
On the basis of these facts, the Commission considered it appropriate that it should investigate the assembly of PPCs in the Community by Ricoh Industrie France SA.
Accordingly, after consultation, the Commission announced by a notice published in the Official Journal of the European Communities (7), the initiation of the investigation under the said Article 13 (10) of Regulation (EEC) No 2423/88 concerning PPCs assembled or produced in the Community by Ricoh Industrie France SA.
(3) The Commission so informed the company concerned, the representatives of Japan and the complainants and gave the interested parties the opportunity to make known their views in writing and to request a hearing.
(4) The Company concerned made its views known in writing. The same Company and the complainants requested and were granted hearings by the Commission.
(5) No submissions were made by purchasers of PPCs assembled in the Community by Ricoh Industrie France SA. The Commission sought and verified all information it deemed necessary for the purpose of the assessment of the nature of the alleged assembly operations and carried out investigations at the premises of Ricoh Industrie France SA.
(6) The period of investigation was from 1 November 1988 to 30 April 1989.
B. RELATIONSHIP OR ASSOCIATION WITH EXPORTER
(7) Ricoh Industrie SA was found to be related to or associated with Ricoh Company Ltd whose exports of PPCs were subject to the definitive anti-dumping duty imposed by Regulation (EEC) No 535/87. In fact it was found to be a wholly-owned subsidiary of the Japanese company mentioned above.
C. PRODUCTION
(8) The Commission established that the assembly or production operations carried out by Ricoh Industrie France SA had started after the opening of the anti-dumping investigation on PPCs.
D. PARTS
(9) The parts were identified according to the provisions of Article 13 (10) of Regulation (EEC) No 2423/88. In this context and in line with previous practice, the Commission deemed it appropriate to consider the types of printed circuit board examined during the investigation as single parts, given the nature of their structure.
(10) As in previous cases, the value of the parts in question were generally determined on the basis of the company's purchase prices of these parts when delivered to the factories in the Community. The relevant value is that of the parts and materials as they are used in the assembly operations, i.e. on an into-factory basis.
(11) The origin of the parts was taken into account according to the provisions of Council Regulation (EEC) No 802/68 (1) as last amended by Regulation (EEC) No 1769/89 (2).
(12) The weighted average value of Japanese parts or materials for all models assembled or produced by Ricoh France Industrie SA was found not to have exceeded by at least 50 % the value of all other parts or materials used.
Accordingly the anti-dumping duty cannot be extended to the PPCs assembled or produced by the abovementioned company.
E. CONCLUSION
(13) In view of the foregoing, it is concluded that the investigation under Article 13 (10) of (EEC) Regulation 2423/88 should be terminated without the imposition of anti-dumping duties on PPCs assembled or produced by Ricoh Industrie France SA.
HAS DECIDED AS FOLLOWS:
Sole Article
The proceeding under Article 13 (10) of Regulation (EEC) No 2423/88, concerning plain paper photocopiers incorporating an optical system corresponding to CN codes ex 9009 11 00, ex 9009 1200 and ex 9009 21 00, assembled or produced by Ricoh Industrie France SA, is hereby terminated.
Done at Brussels, 1 February 1990. | [
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COMMISSION REGULATION (EC) No 2095/95 of 31 August 1995 setting the world market price for unginned cotton
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to the Act of Accession of Greece, and in particular paragraphs 3 and 10 of Protocol 4 on cotton annexed thereto, as last amended by Council Regulation (EC) No 1553/95 (1),
Having regard to Council Regulation (EC) No 1554/95 of 29 June 1995 laying down general rules for the system of aid for cotton and repealing Regulation (EEC) No 2169/81 (2), and in particular Articles 3 and 4 thereof,
Whereas Article 3 of Regulation (EC) No 1554/95 requires a world market price for unginned cotton to be determined periodically from the world market price recorded for ginned cotton, using the historical relationship between the ginned cotton and that calculated for unginned cotton; whereas this historical relationship was specified in Article 1 (2) of Commission Regulation (EEC) No 1201/89 of 3 May 1989 laying down rules implementing the system of aid for cotton (3), as last amended by Regulation (EC) No 2064/95 (4); whereas in cases where the world market price cannot be thus determined it is to be based on the last price determined;
Whereas pursuant to Article 4 of Regulation (EC) No 1554/95 the world market price for ginned cotton is determined for a product meeting certain characteristics and by using the most favourable offers and quotations of those considered representative of the real market trend; whereas for this purpose an average is to be established of the offers and quotations on one or more European exchanges for deliveries cif to north European ports of cotton from the various supplier countries considered most representative as regards international trade; whereas these rules for determination of the world market price for ginned cotton provide for adjustment to reflect differences in product quality and the nature of offers and quotations; whereas these adjustments are specified in Article 2 of Regulation (EEC) No 1201/89;
Whereas application of the above rules gives the world market price for unginned cotton specified hereunder,
HAS ADOPTED THIS REGULATION:
Article 1
The world market price for unginned cotton as indicated in Article 3 of Regulation (EC) No 1554/95 is set at ECU 37,134 per 100 kilograms.
Article 2
This Regulation shall enter into force on 1 September 1995.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 31 August 1995. | [
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COUNCIL DECISION
of 21 December 1999
on the provisional application of Agreements in the form of an Exchange of Letters between the European Community and certain third States (Armenia, Azerbaijan, Georgia, Kazakhstan, Moldova, Tajikistan, Turkmenistan and Uzbekistan) on trade in textile products
(1999/867/EC)
THE COUNCIL OF THE EUROPEAN UNION,
Having regard to the Treaty establishing the European Community, and in particular Article 133 in conjunction with Article 300(2), first sentence thereof,
Having regard to the proposal from the Commission,
Whereas:
(1) The Commission has negotiated on behalf of the Community Agreements in the form of an Exchange of Letters to revise and extend the existing bilateral agreement and protocols on trade in textile products with certain third States (Armenia, Azerbaijan, Georgia, Kazakhstan, Moldova, Tajikistan, Turkmenistan and Uzbekistan);
(2) These Agreements in the form of an Exchange of Letters should be applied on a provisional basis from 1 January 2000 subject to the reciprocal provisional application by the abovementioned States,
HAS ADOPTED THIS DECISION:
Article 1
The Agreements in the form of an Exchange of Letters attached to this Decision shall be applied on a provisional basis from 1 January 2000, pending their formal conclusion, subject to reciprocal provisional application by the partner countries(1).
The texts of the Agreements are attached to this Decision.
Article 2
This Decision shall be published in the Official Journal of the European Communities.
It shall enter into force the day after its publication in the Official Journal.
Done at Brussels, 21 December 1999. | [
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COMMISSION DECISION of 7 December 1990 approving the programme of measures submitted by the Greek Government for 1991 on the restructuring of the system for agricultural surveys in Greece (Only the Greek text is authentic) (91/6/EEC)
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Economic Community,
Having regard to Council Decision No 85/360/EEC of 16 July 1985 on the restructuring of the system for agricultural surveys in Greece (1), as last amended by Decision 90/386/EEC (2), and in particular Article 4 thereof,
Whereas, as required by Article 4 (1) of the said Decision, the Greek Government has submitted the annual programme of measures planned for 1991;
Whereas the programme that has been submitted is such as to attain the objectives of organizing in Greece a system of surveys on agricultural matters which will satisfy Community requirements in respect of statistical information in this field;
Whereas the Greek Government has also submitted a report on the execution of the preceding annual programme;
Whereas the measures provided for in this Decision are in accordance with the opinion of the Standing Committee on Agricultural Statistics,
HAS ADOPTED THIS DECISION: Article 1
The programme of measures on the restructuring of the system for agricultural surveys in Greece by the Greek Government for 1991 is approved. Article 2
This Decision is addressed to the Greek Republic.
Done at Brussels, 7 December 1990. | [
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COMMISSION DECISION of 11 July 1994 amending Decisions 94/143/EC, 94/187/EC, 94/309/EC, 94/344/EC, 94/446/EEC and 94/435/EC laying down the animal health requirements and certification for the import of certain products covered by Council Directive 92/118/EEC (Text with EEA relevance) (94/461/EC)
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Council Directive 92/118/EEC laying down animal health and public health requirements governing trade in and imports into the Community of products not subject to the said requirements laid down in specific Community rules referred to in Annex A Chapter 1 to Directive 89/662/EEC and as regards pathogens, to Directive 90/425/EEC (1) and in particular Article 10 (2) (c) thereof,
Whereas Decisions 94/143/EC (2), 94/187/EC (3), 94/309/EC (4), 94/344/EC (5), 94/446/EC (6) and 94/435/EC (7) respectively lay down the animal health conditions and the veterinary certification for import of serum from equidae, animal casings, certain petfoods and certain untanned edible products for pets containing low risk material, processed animal protein including products containing this protein intended for animal consumption, bones and bone products, horns and horn products, excluding meals thereof, for further processing, not intended for human or animal consumption, and pig bristles from third countries;
Whereas the date of entry into application of the abovementioned Decisions is 1 July 1994; whereas it appears that third countries will not be able to fulfil the new import conditions by that date; whereas in order to avoid disruptions in trade, it is necessary to postpone the entry into application of these Decisions to 1 December 1994;
Whereas Decisions 94/143/EC, 94/187/EC, 94/309/EC, 94/344/EC, 94/446/EC and 94/435/EC must be amended 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
In Article 2 of Decision 94/143/EC, the date of '1 July 1994' is replaced by that of '1 December 1994'.
Article 2
In Article 2 of Decision 94/187/EC, the date of '1 July 1994' is replaced by that of '1 December 1994'.
Article 3
In Article 2 of Decision 94/309/EC, the date of '1 July 1994' is replaced by that of '1 December 1994'.
Article 4
In Article 2 of Decision 94/344/EC, the date of '1 July 1994' is replaced by that of '1 December 1994'.
Article 5
In Article 4 of Decision 94/446/EC, the date of '1 July 1994' is replaced by that of '1 December 1994'.
Article 6
In Article 5 of Decision 94/435/EC, the date of '1 July 1994' is replaced by that of '1 December 1994'.
Article 7
This Decision is addressed to Member States.
Done at Brussels, 11 July 1994. | [
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COUNCIL DIRECTIVE
of 6 June 1972
concerning coordinated annual surveys of industrial activity
(72/221/EEC)
THE COUNCIL OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Economic Community, and in particular Article 213 thereof;
Having regard to the proposal from the Commission;
Whereas, in order to carry out the tasks entrusted to it under the Treaty, the Commission must have at its disposal up-to-date statistics, comparable as between States, on the structure, importance and development of industry and small craft industries in Member States;
Whereas, when the industrial census was being prepared in 1963, the Commission found it necessary to draw the attention of the Governments of Member States to the fact that the development of the industrial economy in a common market requires that industrial statistics should provide certain minimum data; whereas the information available in the various Member States is inadequate or insufficiently comparable to serve as a reliable basis for the work of the Commission;
Whereas the European Economic Community has in the meantime made substantial progress towards integration; whereas new economic policies and guidelines call for initiatives and decisions based on valid statistics; whereas the statistics available in industry and small craft industries are not yet up to the standards appropriate to this economic situation.
Whereas these deficiencies make it difficult to extract from the industrial statistics now available in the various Member States information which could serve as a reliable basis for the work of the Commission, in particular as regards medium-term economic policy industrial policy, and competition policy;
Whereas comparable information on industrial activity must be obtained from the Member States and whereas for that reason it is necessary to carry out surveys which are coordinated as regards content, coverage, concepts and definitions, methods, and breakdown by industrial activity and size of statistical unit, for the purpose of collecting a body of coherent statistics whereby it will be possible to analyse the situation and economic development of the various branches of industry, and the potential for or obstacles to their growth; whereas these statistics will also provide the data necessary for calculating the contribution of industry and small craft industries to the national product and for other work in the sphere of statistical and economic synthesis;
HAS ADOPTED THIS DIRECTIVE:
Article 1
The Member States, in technical cooperation with the Commission, shall take all necessary steps for collecting annual statistical data with a view to drawing up coherent statistics on the structure and productive activity of industry in the Member States. This first collection of data shall be made in 1974, at the latest and shall relate to the preceding year.
Article 2
The surveys shall cover all industrial undertakings and small businesses, if any, which employ twenty or more persons and whose principal activity is listed in one of the Divisions of the Nomenclature of Economic Activities in the European Communities (NACE), for industry, including energy and water, and also construction (NACE 1 to 5).
Surveys shall, at least once in every five years, be extended to cover undertakings employing fewer than 20 persons. The Commission, in agreement with the Member States, shall appoint the years in which the surveys shall be so extended.
Surveys into undertakings employing fewer than twenty persons may be carried out by means of sampling.
Article 3
The statistical units shall be the undertaking, the economic activity unit and, where regional statistics are concerned, also the local unit. Statistical units are defined in Part I of the NACE.
Article 4
Surveys shall cover the variables listed in the Annex to this Directive. During the first stage, which shall start in 1974 at the latest, the surveys need not include data relating to the variables shown in brackets. For the 1977 survey, covering the year 1976, and subsequently, Member States shall collect data relating to all the variables listed in the Annex.
Data to be collected on undertakings employing from twenty to ninety-nine persons shall, however, cover only the variables concerning the number of persons employed, turnover, gross wages and salaries paid, and also purchases of raw materials, intermediate products and industrial services.
As regards periodical surveys into undertakings employing fewer than twenty persons, the Commission shall, before the end of 1975, put forward proposals on the data to be collected.
From the first survey onwards data on local units (enterprise) shall be collected in respect of the following variables:
-
total number of persons employed other than home workers;
-
gross salaries and wages paid out, including the amount paid to home workers on the payroll;
-
total of investments in fixed capital.
The information last referred to shall supplement the data by undertaking collected annually in respect of investments, in compliance with Council Directive No 64/475/EEC of 30 July 1964 (1).
Article 5
With the exception of information subject to statistical secrecy under national law, the results of the surveys recorded in. accordance with a common schedule of tables and broken down by industrial activity corresponding to the three-digit NACE headings shall be forwarded annually to the Commission.
The Commission shall, with the agreement of the Member States, determine the exceptions to the general rule governing break-down by industrial activity, the details relating to the presentation of results, including the break-down according to size of statistical unit, and the form in which results should be forwarded.
Member States in which the collection and processing of data are based on a nomenclature of activities other than the NACE shall take all necessary measures to ensure that results expressed in their nomenclature shall be adequately transposed into the Community nomenclature.
Article 6
Member States shall take all appropriate steps to reduce to a minimum the time taken in carrying out and processing the surveys, in order that the results may be available to the Commission as soon as possible.
Article 7
The cost of carrying out these surveys in the Member States shall be borne by the national budgets.
Article 8
This Directive is addressed to the Member States.
Done at Luxembourg, 6 June 1972. | [
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COMMISSION DECISION
of 20 February 2007
amending Decision 2003/71/EC to extend its period of application and repealing Decision 2003/70/EC
(notified under document number C(2007) 492)
(Text with EEA relevance)
(2007/130/EC)
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Council Directive 91/496/EEC of 15 July 1991 laying down the principles governing the organisation of veterinary checks on animals entering the Community from third countries and amending Directives 89/662/EEC, 90/425/EEC and 90/675/EEC (1), and in particular Article 18(7) 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 (2), and in particular Article 22(6) thereof,
Whereas:
(1)
The occurrence of infectious salmon anaemia (ISA) in the Faroe Islands led to the adoption of Commission Decision 2003/71/EC of 29 January 2003 on certain protective measures in respect of infectious salmon anaemia in the Faroe Islands (3). That Decison is to apply until 31 January 2007.
(2)
Decision No 2/2005 of the EC-Faroe Island Joint Committee of 8 December 2005 amending Decision No 1/2001 laying down provisions to implement the Protocol on veterinary matters supplementing the Agreement between the European Community, of the one part, and the Government of Denmark and the Home Government of the Faroe Island, of the other part (4) approves a contingency plan submitted by the Faroe Islands for certain fish diseases, including fish infected with infectious salmon anaemia, in accordance with Article 15 of Council Directive 93/53/EEC of 24 June 1993 introducing minimum Community measures for the control of certain fish diseases (5) (the contingency plan).
(3)
The contingency plan includes a withdrawal scheme in accordance with Article 6 of Directive 93/53/EEC and a vaccination procedure. Vaccination is still used as a control strategy. To prevent the spreading of the disease to non-infected areas, the protective measures provided for in Decision 2003/71/EC should remain applicable as long as vaccination is applied.
(4)
Council Directive 2006/88/EC of 24 October 2006 on animal health requirements for aquaculture animals and products thereof, and on the prevention and control of certain diseases in aquatic animals (6) provides that the transposition measures adopted by the Member States pursuant to that Directive are to apply from 1 August 2008. Accordingly, Decision 2003/71/EC should be reviewed before that date.
(5)
Decision 2003/71/EC should therefore be amended in order to extend its period of application from 31 January 2007 until 31 July 2008.
(6)
The occurrence of infectious salmon anaemia (ISA) in Norway led to the adoption of Commission Decision 2003/70/EC of 29 January 2003 on certain protective measures in respect of infectious salmon anaemia in Norway (7). That Decision applied until 1 February 2004. For the sake of clarity, that Decision should be expressly repealed.
(7)
The measures provided for in this Decision are in accordance with the opinion of the Standing Committee on the Food Chain and Animal Health,
HAS ADOPTED THIS DECISION:
Article 1
In Article 6 of Decision 2003/71/EC ‘31 January 2007’ is replaced by ‘31 July 2008’.
Article 2
Decision 2003/70/EC is repealed.
Article 3
This Decision is addressed to the Member States.
Done at Brussels, 20 February 2007. | [
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COMMISSION REGULATION (EEC) No 25/93 of 8 January 1993 on the issuing of import documents for preserved tuna and bonito of certain species from 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 3759/92 of 17 December 1992 on the common organization of the market in fishery and aquaculture products (1),
Having regard to Council Regulation (EEC) No 3900/92 (2) laying down special detailed rules for the application of Regulation (EEC) No 3759/92 as regards the Community import arrangements for preserved tuna, bonito and sardines of certain species from certain third countries, and in particular Article 3 (1) thereof,
Whereas Article 3 (1) of the abovementioned Regulation has allocated 11 115 tonnes of the available quantity of 74 100 tonnes to new importers; whereas Article 4 (2) of that Regulation provides that if the quantities for which import documents have been applied for exceed the available quantities the Commission is to fix a single percentage figure which has to be applied on the requested quantities in order to reduce imports;
Whereas on 4 and 5 January 1993 the quantities applied for by new importers exceed the quantities available; whereas the extent to which import documents may be issued should accordingly be determined;
Whereas the quantities for which import documents have been issued have reached the amount of 11 115 tonnes; whereas the issuing of these documents to new importers should accordingly be suspended,
HAS ADOPTED THIS REGULATION:
Article 1
Import documents for preserved tuna of the genus Thunnus, skipjack or stripe-bellied bonito (Euthynnus pelamis) and other species of the genus Euthynnus falling within CN codes ex 1604 14 11, ex 1604 14 19 and ex 1604 20 70, from the third countries referred to in Article 1 (1) of Regulation (EEC) No 3900/92, applied for under Article 3 (1) (b) of that Regulation on 4 and 5 January 1993 and forwarded to the Commission on 6 January 1993, shall be issued for up to 3,61 % of the quantities applied for.
The issuing of import documents for the products referred to in the first subparagraph is hereby suspended for applications under Article 3 (1) (b) of Regulation (EEC) No 3900/92 lodged from 6 January 1993.
Article 2
This Regulation shall enter into force on 11 January 1993.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 8 January 1993. | [
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COUNCIL REGULATION (EC) No 1360/98 of 26 June 1998 fixing, for the 1998/1999 marketing year, certain sugar prices and the standard quality of beet
THE COUNCIL OF THE EUROPEAN UNION,
Having regard to the Treaty establishing the European Community,
Having regard to Council Regulation (EEC) No 1785/81 of 30 June 1981 on the common organisation of the markets in the sugar sector (1), and in particular Articles 2(3), 3(4) and 4(3) thereof,
Having regard to the proposal from the Commission (2),
Having regard to the opinion of the European Parliament (3),
Having regard to the opinion of the Economic and Social Committee (4),
Whereas, when sugar prices are fixed, account should be taken of the objectives of the common agricultural policy; whereas the objectives of the common agricultural policy are in particular to ensure a fair standard of living for the agricultural community, to assure the availability of supplies and ensure that they reach consumers at reasonable prices;
Whereas, in order to attain these objectives, the target price for sugar must be fixed at a level which, taking into account in particular the resultant level of the intervention price, ensures a fair remuneration for beet and sugarcane producers while at the same time respecting consumers' interests, and which is likely to maintain the balance between the prices of the principal agricultural products;
Whereas, as a result of the characteristics of the sugar market, the risks involved in this trade are relatively slight; whereas, consequently, when the intervention price for sugar is being fixed, the difference between the target price and the intervention price may be fixed at a relatively low level;
Whereas the basic price for beet must take account of the intervention price, revenue to undertakings as a result of the sale of molasses, which can be valued at ECU 7,61 per 100 kilograms, that amount being derived from the molasses price referred to in Article 14(2) of Regulation (EEC) No 1785/81, the latter being valued at ECU 8,21 per 100 kilograms, and of the costs of processing and delivering the beet to factories and be based on an estimated Community yield of 130 kilograms of white sugar per tonne of beet with a 16 % sugar content,
HAS ADOPTED THIS REGULATION:
Article 1
1. The target price for white sugar shall be ECU 66,50 per 100 kilograms.
2. The intervention price for white sugar shall be ECU 63,19 per 100 kilograms for the non-deficit areas of the Community.
Article 2
The basic price applicable in the Community for beet shall be ECU 47,67 per tonne delivered at the collection centre.
Article 3
Standard quality beet shall:
(a) be of sound, genuine and merchantable quality;
(b) have a sugar content of 16 % at the reception point.
Article 4
This Regulation shall enter into force on the day following its publication in the Official Journal of the European Communities.
It shall be applicable for the 1998/1999 marketing year.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Luxembourg, 26 June 1998. | [
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COMMISSION DECISION
of 17 November 1999
on the Community's financial contribution to a programme for the control of organisms harmful to plants and plant products in the French overseas departments for 1999
(notified under document number C(1999) 3772)
(Only the French text is authentic)
(1999/807/EC)
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Council Regulation (EEC) No 3763/91 of 16 December 1991 introducing specific measures in respect of certain agricultural products for the benefit of the French overseas departments(1), as last amended by Regulation (EC) No 1257/1999(2), and in particular the first subparagraph of Article 11(3) thereof,
(1) Whereas Commission Decision 93/522/EEC(3), as last amended by Decision 96/633/EC(4) defines the measures eligible for Community financing under programmes for the control of organisms harmful to plants and plant products in the French overseas departments, the Azores and Madeira;
(2) Whereas specific growing conditions in the French overseas departments call for particular attention; whereas measures concerning crop production, in particular plant health measures, must be adopted or strengthened in those regions;
(3) Whereas the plant health measures to be adopted or strengthened are particularly costly;
(4) Whereas a programme of measures has been presented to the Commission by the competent French authorities; whereas this programme specifies the objectives to be achieved, the operations to be carried out, their duration and their cost with a view to a possible Community financial contribution;
(5) Whereas the Community's financial contribution may cover up to 60 % of eligible expenditure, protective measures for bananas being excluded;
(6) Whereas the plant protection operations in the French overseas departments provided for in the Single Programme Documents for the period 1994/1999 and financed from the Structural Funds cannot be the same as those contained in this programme;
(7) Whereas the operations provided for in the European Community framework programme for research and technological development cannot be the same as those contained in this programme;
(8) Whereas the technical information provided by France has enabled the Standing Committee on Plant Health to analyse the situation accurately and comprehensively;
(9) 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
A Community financial contribution to the official programme for the control of organisms harmful to plants and plant products in the French overseas departments presented by France for 1999 is hereby approved.
Article 2
The official programme shall consist of four subprogrammes:
1. a subprogramme drawn up for the department of Guadeloupe in four parts:
- evaluation structures, analysis and diagnostics of phytosanitary risks,
- control of main harmful organisms,
- "labo vert",
- regional structure of experimentation and application of techniques in crop protection;
2. a subprogramme drawn up for the department of Guyana in three parts:
- evaluation structures, analysis and diagnostics of phytosanitary risks,
- management of control methods for main harmful organisms,
- development of techniques for biological crop control;
3. a subprogramme drawn up for the department of Réunion in three parts:
- evaluation structures, analysis and diagnostics of phytosanitary risks,
- development of control methods for main harmful organisms,
- applied research on harmful organisms;
4. a subprogramme drawn up for the department of Martinique in three parts:
- development of efforts for detection of harmful organisms,
- control of main harmful organisms,
- biological and integrated crop control.
Article 3
The Community's financial contribution to the programme in 1999 presented by France shall be 60 % of expenditure related to eligible measures as defined by Commission Decision 93/522/EEC, with a maximum of EUR 700000 (VAT excluded).
The schedule of programme costs and their financing is set out as Annex I to this Decision.
Article 4
An advance of EUR 300000 shall be paid to France.
Article 5
The Community assistance shall relate to expenditure on eligible measures associated with the operations covered by the programme for which provisions are adopted by France and for which the necessary financial resources are committed between 1 October and 31 December 1999. The final date for payments in connection with the operations shall be 30 September 2000; unjustified delay shall entail loss of entitlement to Community financing.
Should any extension of the deadline for payment become necessary, the competent official authorities shall submit a request along with the necessary justification, before the final date laid down.
Article 6
Provisions on the financing of the programme, compliance with Community policies and the information to be supplied to the Commission by France shall be as set out in Annex II.
Article 7
Any public contracts connected with investments covered by this Decision shall be subject to Community law.
Article 8
This Decision is addressed to the French Republic.
Done at Brussels, 17 November 1999. | [
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Commission Regulation (EC) No 1460/2002
of 9 August 2002
authorising transfers between the quantitative limits of textiles and clothing products originating in Macao
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 797/2002(2), and in particular Article 7 thereof,
Whereas:
(1) Article 7 of the Agreement between the European Community and Macao on trade in textile products(3), initialled on 19 July 1986 and approved by Council Decision 87/497/EEC, as last amended by an Agreement in the form of an Exchange of Letters, initialled on 22 December 1994 and approved by Council Decision 95/131/EC(4), provides that transfers may be agreed between categories and quota years.
(2) Macao submitted a request for transfers between quota years on 18 June 2002.
(3) The transfers requested by Macao fall within the limits of the flexibility provisions referred to in Article 7 of Regulation (EEC) No 3030/93 and set out in Annex VIII thereto.
(4) It is, therefore, 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,
HAS ADOPTED THIS REGULATION:
Article 1
Transfers between the quantitative limits for textile goods originating in Macao fixed by the Agreement between the European Community and Macao 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 the day following that 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, 9 August 2002. | [
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COUNCIL DIRECTIVE of 21 December 1976 on protective measures against the introduction into the Member States of harmful organisms of plants or plant products (77/93/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 plant production is very important to the Community;
Whereas plant production yields are consistently reduced through the effects of harmful organisms;
Whereas the protection of plants against such organisms is absolutely necessary not only to avoid reduced yields but also to increase agricultural productivity;
Whereas action taken by Member States and aimed at the systematic eradication of harmful organisms within Member States would have only a limited effect if protective measures against their introduction were not applied at the same time;
Whereas the need for such measures has long been recognized ; whereas they have formed the subject of many national regulations and international conventions, including the International Plant Protection Convention of 6 December 1951 concluded at the United Nations, Food and Agricultural Organization, which is of world-wide interest;
Whereas this International Plant Protection Convention and the close cooperation of States in the European and Mediterranean Plant Protection Organization have, to a certain extent, already resulted in the harmonization of plant-health laws;
Whereas, independently of this international cooperation, closer harmonization of the provisions against the introduction of harmful organisms into the Member States of the Community is required;
Whereas it is necessary to make common protection arrangements against the introduction of harmful organisms from non-member countries and also to re-organize plant-health inspection in conjunction with the gradual removal of obstacles to and checks on intra-Community trade;
Whereas, in this respect, one of the most important measures consists in listing the particularly dangerous harmful organisms whose introduction into the Member States must be totally prohibited and also the harmful organisms whose introduction into the Member States when carried by certain plants or plant products must also be prohibited;
Whereas the presence of some of these harmful organisms, when plants or plant products are introduced from countries in which these organisms occur, cannot be effectively checked ; whereas it is therefore necessary to make minimum provision for bans on the introduction of certain plants and plant products, or to provide for special checks to be made in the producer countries;
Whereas, due to special circumstances, certain other harmful organisms are significant in certain Member States only ; whereas it is sufficient to allow these States the option to subject these harmful organisms to the Community rules on plant health;
Whereas in intra-Community trade, a plant health control currently operates for all plants, plant products and other objects not only in the consignor country but also in the country of destination ; whereas it is desirable to abolish the latter controls gradually and, to that end, to render those of the (1)OJ No 187, 9.11.1965, p. 2900/65. (2)Opinion delivered 13 October 1965 (not published in the Official Journal).
consignor country compulsory and more stringent, in order to forestall as far as possible any introduction of harmful organisms into the country of destination;
Whereas, if the result of the plant-health check made in the consignor Member State is satisfactory, a phytosanitary certificate conforming to the model introduced by the International Plant Protection Convention must generally be issued;
Whereas, in order to avoid any further unnecessary checking, provision must be made for drawing up re-forwarding phytosanitary certificates under certain conditions for consignments covered by a phytosanitary certificate and coming from other Member States;
Whereas, if a plant-health check carried out in the consignor Member State constitutes a guarantee that the products are free from harmful organisms, it is possible to dispense with the systematic checks carried out in the Member State of destination;
Whereas, until confidence is established between Member States regarding the correct operation of inspection systems in the consignor Member States, systematic checks can only be dispensed with gradually;
Whereas in this respect, it would appear justified for systematic checks to continue to be allowed in the country of destination for a period of four years from the notification of this Directive, while all the other provisions of this Directive must be transposed into national laws by the end of the second year following this notification;
Whereas, on expiry of the four-year period, the plant-health checks carried out in the country of destination on fruit, vegetables and potatoes, apart from seed potatoes, will no longer be permitted, except for special reasons or, to a limited extent, apart from certain inspection formalities;
Whereas such plant-health checks must be limited to introductions of products originating in non-member countries and to cases where there is strong evidence that one of the plant-health provisions has not been observed ; whereas, in all other cases, occasional checks only may be allowed;
Whereas on the other hand, it is necessary for Member States to require, with regard to introductions of products from non-member countries, checks to be carried out at least on the principal carriers of harmful organisms;
Whereas it is also necessary to make provision under certain conditions for Member States to be able to permit derogations from a certain number of provisions;
Whereas Member States must also have the right to take protective measures not laid down in this Directive, in the case of imminent danger of the introduction or spread of harmful organisms;
Whereas in this case in particular, it is appropriate for Member States to cooperate closely with the Commission within the Standing Committee on Plant Health set up by Decision 76/894/EEC (1);
Whereas the Community provisions laying down plant health measures are not in principle affected by this Directive ; whereas this also applies to any plant health provisions laid down by Member States on protection against harmful organisms which generally attack plants or plant products in storage and certain other plant health measures laid down by Member States concerning both national and imported products;
Whereas the situation in the French overseas departments differs from that in the other parts of the Community owing to the conditions as regards climate, agricultural production, harmful organisms and trade patterns, taken as a whole ; whereas, for the time being it is therefore not possible to apply the provisions of this Directive to the said departments until they have been suitably adjusted,
HAS ADOPTED THIS DIRECTIVE:
Article 1
1. This Directive concerns protective measures against the introduction into the Member States from other Member States or non-member countries of organisms which are harmful to plants or plant products.
2. This Directive shall not apply to the French overseas departments.
Article 2
1. For the purposes of this Directive: (a) plants : shall be considered to mean living plants and living parts of plants, including fresh fruit and seeds; (1)OJ No L 340, 9.12.1976, p. 25.
(b) plant products : shall be considered to mean products of plant origin, unprocessed or having undergone simple preparation, in so far as these are not plants;
(c) planting : shall be considered to mean any operation for the placing of plants to ensure their subsequent growth, reproduction or propagation;
(d) harmful organisms : shall be considered to mean pests of plants or of plant products, which belong to the animal or plant kingdoms, or which are viruses, mycoplasmas or other pathogens;
(e) official statement : shall be considered to mean statement made by representatives of the official plant-protection organization or, under their responsibility, by other public servants.
2. This Directive concerns wood only in so far as it retains all or part of its natural round surface, with or without bark.
Article 3
1. Member States shall ban the introduction into their territory of the harmful organisms listed in Annex I, Part A.
2. Paragraph 1 shall not apply during the period 16 October to 30 April in the case of slight contamination of cut flowers by the harmful organisms referred to in Annex I, Part A (a) (1) and (4).
Under the procedure laid down in Article 16, Member States may be authorized on request to shorten the aforesaid period.
3. Paragraph 1 shall not apply in the case of slight contamination of fruit by the harmful organism referred to in Annex I, Part A (b) (3). However, paragraph 1 shall apply during the period 1 May to 15 September, in so far as this harmful organism is young and mobile.
4. Member States shall ban the introduction into their territory of the plants and plant products listed in Annex II, Part A, where they are contaminated by the relevant harmful organisms listed in that part of the Annex.
5. Member States may ban the introduction into their territory of the harmful organisms listed in Annex II, Part A, whether in an isolated state or occurring on objects other than the relevant ones listed in that part of the Annex.
6. The Member States listed in Annex I, Part B, and in Annex II, Part B, may ban the introduction into their territory of: (a) the harmful organisms listed in Annex I, Part B, against their names;
(b) the plants and plant products listed in Annex II, Part B, against their names, where they are contaminated by the relevant harmful organisms listed in that part of the Annex.
7. Member States may lay down that the introduction into their territory of organisms in an isolated state other than those listed in Annexes I and II which might be considered harmful shall be prohibited or require special authorization.
Article 4
1. Member States shall ban the introduction into their territory of the plants or plant products listed in Annex III, Part A, where they originate in the relevant countries referred to in that part of the Annex.
2. Member States may: (a) ban the introduction into their territory of the plants, plant products and other objects listed in Annex III, Part B, against their names;
(b) require of the other Member States, from which the plants or plant products listed in Annex III, Part A, other than those listed in (9) and (10) are introduced into their territory, an official certificate stating the country from which these products originate.
Article 5
1. Member States shall ban the introduction into their territory of the plants, plant products and other objects listed in Annex IV, Part A, unless the relevant special requirements indicated in that part of the Annex are met.
2. Member States may: (a) lay down that the special requirements listed in Annex IV, Part A (1), (2), (3) or (5) shall also apply to non-member countries not referred to therein, if they do not lay down equivalent conditions for wood originating in the relevant countries described in therein;
(b) ban the introduction into their territory of the plants listed in Annex IV, Part B, against their names unless the relevant special requirements indicated in that part of the Annex are met;
(c) require of the other Member States, from which the plant products listed in Annex IV, Part A (1), (2), (3) or (5) are introduced into their territory, an official certificate stating the country in which these products originate.
Article 6
1. Member States shall lay down, at least in respect of the introduction into another Member State of the plants, plant products and other objects listed in Annex V, that the latter and their packaging shall be meticulously examined on an official basis, either in their entirety or by representative sample, and that, if necessary, the vehicles transporting them shall also be officially examined in order to make sure: (a) that they are not contaminated by the harmful organisms listed in Annex I, Part A;
(b) in the case of the plants and plant products listed in Annex II, Part A, that they are not contaminated by the relevant harmful organisms listed in that part of the Annex;
(c) in the case of the plants, plant products and other objects listed in Annex IV, Part A, that they comply with the relevant special requirements indicated in that part of the Annex.
2. Member States shall lay down the inspection measures referred to in paragraph 1 in order to ensure compliance with Article 3 (5), (6) and (7) or Article 5 (2), where the Member State of destination avails itself of one of the options listed in the abovementioned Articles.
3. Member States shall lay down that the seeds referred to in Annex IV, Part A, which are to be introduced into another Member State shall be officially examined in order to make sure that they comply with the relevant special requirements listed in that part of the Annex.
Article 7
1. Where it is considered, on the basis of the examination laid down in Article 6, that the conditions therein are fulfilled, a phytosanitary certificate shall be issued in accordance with the specimen in Annex VIII, Part A, drawn up in at least one of the official languages of the Community, preferably that of the Member State of destination. For other objects, the words "plants or plant products described" shall be replaced on the certificate by the words "objects described".
2. Member States shall lay down that the plants, plant products and other objects listed in Annex V may not be introduced into another Member State unless they are accompanied by a phytosanitary certificate issued in accordance with paragraph 1. The phytosanitary certificate may not be made out more than 14 days before the date on which the plants, plant products or other objects leave the consignor Member State.
3. The action to be taken by the Member States in order to implement Article 6 (3) shall be determined in accordance with the procedure laid down in Article 16 before expiry of the period referred to in Article 20 (1) (b).
Article 8
1. Unless one of the eventualities provided for in paragraph 2 arises, Member States shall lay down that the plants, plant products and other objects listed in Annex V which have been introduced into their territory from a Member State and which are to be introduced into the territory of another Member State shall be exempted from a further inspection complying with Article 6, if they are accompanied by a phytosanitary certificate from a Member State, made out in accordance with the specimen in Annex VIII, Part A.
2. Where plants, plant products or other objects from a Member State have been split up or stored or their packaging changed in a second Member State and are then introduced into a third Member State, the second Member State shall be absolved from making a new inspection complying with Article 6 if it is officially ascertained that no change in these products has occurred in its territory which would involve non-compliance with the conditions laid down in Article 6. In this case a re-forwarding phytosanitary certificate in accordance with the specimen in Annex VIII, Part B, drawn up in at least one official Community language, preferably that of the Member State of destination, shall be issued. This certificate must be attached to the phytosanitary certificate issued by the first Member State or to a certified copy of the latter certificate. This certificate may be entitled "phytosanitary certificate for re-export".
The re-forwarding phytosanitary certificate may not be made out more than 14 days before the date on which the plants, plant products or other objects leave the re-forwarding country.
3. Paragraphs 1 and 2 shall also apply when plants, plant products or other objects are introduced successively into several Member States. If, in that case, more than one re-forwarding certificate has been issued, the products must be accompanied by the following documents: (a) the latest phytosanitary certificate or a certified copy thereof;
(b) the latest re-forwarding phytosanitary certificate;
(c) the re-forwarding phytosanitary certificates previous to the certificate referred to under (b) or certified copies thereof.
Article 9
1. Member States shall lay down that the plants, plant products and other objects which originate in another Member State or in a non-member country and are listed in Annex IV, Part A, except those in (1), (2), (3) (b), (4) (b), (5), (6), (35) and (36), shall not be introduced into another Member State unless accompanied by an official phytosanitary certificate in accordance with the specimen in Annex VIII, Part A, issued in the country in which they originate, or by a certified copy of that certificate, in addition to the certificates provided for in Articles 7 and 8.
2. Paragraph 1 shall also apply to the introduction of the plants and plant products listed in Annex IV, Part B, into the relevant Member States whose names are indicated against those products in that part of the Annex.
Article 10
1. Member States shall lay down that the plants listed in Annex VI introduced into their territory must be disinfected effectively against San José scale on their arrival. However they shall not require such disinfection if there is absolutely no likelihood of San José scale being propagated.
2. Under the procedure laid down in Article 16, Member States may be authorized on request to require that the plants referred to in paragraph 1 must be disinfected before entry into their territory.
Article 11
1. Member States may lay down that plants, plant products and other objects and their packaging and the vehicles transporting them be subject, at the time of their introduction into their territory from another Member State, to an inspection to ascertain compliance with the prohibitions and restrictions laid down in Articles 3, 4 and 5. Member States shall ensure that these plants, plant products and other objects, where their introduction is not prohibited under Article 3, 4 or 5, are not subjected to prohibitions or restrictions relating to plant-health measures except where: (a) the certificates referred to in Article 4, 5, 7, 8 or 9 are not not produced;
(b) the plants, plant products or other objects are not introduced at one of the prescribed entry-points;
(c) the plants, plant products or other objects are not submitted as laid down in the regulations to an official inspection permitted in accordance with paragraph 3;
(d) these prohibitions or restrictions are laid down on the basis of Article 18.
2. They may not require any additional statement on the phytosanitary certificate.
3. With regard to fruit and vegetables and potatoes other than seed potatoes, Member States may not supplement the official check on identity and the requirements permitted under paragraph 1 by systematic official checks on compliance with the provisions adopted pursuant to Articles 3 and 5, except where: (a) there is serious reason to believe that one of these provisions has not been complied with;
(b) the plants referred to above originate in a non-member country and the examination provided for in Article 12 (1) (a) has not already been carried out in another Member State.
In all other cases, only occasional official inspections of fruit and vegetables and potatoes other than seed potatoes shall be carried out, by sampling. They shall be deemed occasional if they are made on no more than one-third of the consignments introduced from a given Member State and are as evenly spread as possible over time and over all the products.
4. If it is ascertained at the time of introduction that part of a consignment of plants, plant products or other objects is contaminated by harmful organisms listed in Annexes I and II, the introduction of the other part shall not be prohibited provided that it is not suspected of being contaminated and provided that there appears to be no possibility of harmful organisms having spread during the splitting up of the consignment.
5. Member States shall lay down that the phytosanitary certificates or re-forwarding phytosanitary certificates produced when the plants, plant products or other objects are introduced into their territory shall bear an entry stamp from the competent organization showing at least the name of the organization and the date of entry.
Article 12
1. Member States shall lay down, at least as regards the introduction into their territory of the plants, plant products and other objects listed in Annex V and coming from non-member countries: (a) that these plants, plant products and, other objects and their packaging shall be meticulously inspected on an official basis, either in their entirety or by representative sample, and that, if necessary, the vehicles transporting them shall also be examined by these same officials in order to make sure: - that they are not contaminated by the harmful organisms listed in Annex I, Part A,
- in the case of the plants and plant products listed in Annex II, Part A, that they are not contaminated by the relevant harmful organisms listed in that part of the Annex,
- in the case of the plants, plant products and other objects listed in Annex IV, Part A, that they comply with the relevant special requirements indicated in that part of the Annex;
(b) that they must be accompanied by the certificates prescribed in Article 4, 5, 7, 8 or 9 and that a phytosanitary certificate may not be made out more than 14 days before the date on which the plants, plant products or other objects leave the consignor country.
2. Paragraph 1 shall apply to the cases referred to in Articles 6 (3) and 7 (3).
3. Paragraph 1 (a) shall not apply where plants, plant products or other objects are introduced into a Member State via another Member State which has already carried out the inspection provided for in paragraph 1 (a).
4. Member States may extend the application of the measures laid down in Article 8 to consignments coming from non-member countries.
Article 13
The Council acting on a proposal from the Commission, shall adopt any amendments to be made to the Annexes.
Article 14
1. Provided that there is no risk of harmful organisms spreading, the Member States may: (a) provide for derogations generally or in individual cases: (i) from Article 4 (1) with regard to a reduction in the period laid down in Annex III, Part A (8),
(ii) from Articles 4 (1), 10 and 12 in respect of transit through their territory and of direct traffic between two places in their territory via the territory of another country,
(iii) from Article 12, if the plants and plant products or other objects are directly dispatched from another Member State to their territory via the territory of a non-member country,
(iv) from Articles 5, 10 and 12 in the case of: - articles involved in moving house,
- small quantities of plants or plant products, foodstuffs and animal feedingstuffs, where they are intended for use by the owner or recipient for non-industrial and non-commercial purposes or are intended for consumption during transport,
- plants from plots of land in the frontier zone of another country and worked from nearby dwellings or farms located in the frontier zone of their territory,
- plants intended for planting or for propagation in plots of land situated in their frontier zone and worked from nearby dwellings or farms situated in the frontier zone of another country;
(b) provide for derogations, in individual cases: (i) from Articles 3 (1) and 12, during the period 1 May to 15 October, with regard to the harmful organisms referred to in Annex I, Part A (a) (1) and (4), in the case of slightly contaminated cut flowers,
(ii) from Articles 3 (1) and 12, during the period 1 November to 31 March, with regard to the harmful organisms referred to in Annex I, Part A (a) (2), in the case of slightly contaminated fruit,
(iii) from Articles 3 (1), (3) and 12, in cases of more than slight contamination of fruit by San José scale,
(iv) from Article 3 (3), second sentence, and Article 12,
(v) from Articles 3 (4) and 12, if the contamination of certain plants or plant products by certain harmful organisms is slight, in so far as these harmful organisms already exist within the Community;
(c) provide for derogations, in individual cases, and without prejudice to the procedure under paragraph 2: (i) from Articles 3 and 4 (1) with regard to requirements referred to in Annex III, Part A (8), and from Articles 5 and 12 for trial or scientific purposes and for work on varietal selection,
(ii) from Article 5 (1) and the third indent of Article 12 (1) (a) with regard to the requirement referred to in Annex IV, Part A (1) and (5),
(iii) from Article 5 (1) and the third indent of Article 12 (1) (a), with regard to the requirement referred to in Annex IV, Part A (25), in respect of seed potatoes provided that an official statement is required that they originate in regions where no symptoms of contamination have been recorded with regard to the viruses listed in Annex I, Part A (e) (2), since the beginning of the last complete cycle of vegetation.
2. In the case of the derogations provided for in paragraph 1 (c), Member States shall inform the other Member States and the Commission immediately of any legislative, regulatory or administrative provisions adopted in this connection. In accordance with the procedure laid down in Article 16, and no later than six months after adoption of the said provisions, a decision may be taken on whether they should be rescinded or amended.
3. In accordance with the procedure laid down in Article 16, Member States may be authorized on request to provide for derogations from Article 4 (1) in so far as such derogations are not yet allowed under paragraph 1.
4. In the case of the derogations provided for in paragraphs 1 (b) (c) and 3, an official statement that the conditions for granting the derogation are fulfilled shall be required for each individual case.
5. Member States shall inform the Commission of the derogations which they have granted in accordance with paragraph 1 (c) or 3. The Commission shall notify the other Member States of this information each year.
In accordance with the procedure laid down in Article 16, Member States may be exempted from providing this information.
6. Member States may provide for derogations from Articles 5, 6, 7, 8 and 9 for the introduction of plants, plant products and other objects into another Member State where the latter exempts the consignor State from applying the abovementioned Articles.
Article 15
1. Where a Member State considers there is an imminent danger of the introduction or spread in its territory of harmful organisms, even those not listed in the Annexes, it may temporarily take any additional measures necessary to protect itself from that danger. It shall immediately inform the other Member States and the Commission of the measures taken and indicate the reasons for them.
2. Under the procedure laid down in Article 17, it shall be decided whether the measures taken by the Member State should be rescinded or amended. Until a decision has been taken either by the Council or by the Commission under the aforesaid procedure, the Member State may maintain the measures that it has employed.
Article 16
1. Where the procedure laid down in this Article is to be followed, the matter shall be referred without delay to the Standing Committee on Plant Health (hereinafter referred to as "the Committee"), by its chairman, either on his own initiative or at the request of a Member State.
2. Within the Committee, the votes of the Member States shall be weighted as provided for in Article 148 (2) of the Treaty. The chairman shall not vote.
3. The representative of the Commission shall submit a draft of the measures to be taken. The Committee shall deliver its opinion on these measures within a time limit set by the chairman having regard to the urgency of the matters to be examined. Opinions shall be delivered by a majority of 41 votes.
4. Where the measures are in accordance with the opinion of the Committee, the Commission shall adopt them and shall implement them forthwith. Where the measures are not in accordance with the opinion of the Committee or if no opinion is delivered, the Commission shall immediately submit to the Council a proposal on the measures to be taken. The Council shall adopt the measures by a qualified majority.
If, within three months following the date on which the matter was referred to it, the Council has not adopted measures, the Commission shall adopt the proposed measures and shall implement them immediately, except where the Council has rejected the said measures by a simple majority.
Article 17
1. Where the procedure laid down in this Article is to be followed, the matter shall be referred without delay to the Standing Committee on Plant Health (hereinafter referred to as "the Committee"), by its chairman, either on his own initiative or at the request of a Member State.
2. Within the Committee, the votes of the Member States shall be weighted as provided for in Article 148 (2) of the Treaty. The chairman shall not vote.
3. The representative of the Commission shall submit a draft of the measures to be taken. The Committee shall deliver its opinion on these measures within two days. Opinions shall be delivered by a majority of 41 votes.
4. Where the measures are in accordance with the opinion of the Committee, the Commission shall adopt them and shall implement them forthwith. Where the measures are not in accordance with the opinion of the Committee or if no opinion is delivered, the Commission shall immediately submit to the Council a proposal on the measures to be taken. The Council shall adopt the measures by a qualified majority.
If, within 15 days following the date on which the matter was referred to it, the Council has not adopted measures, the Commission shall adopt the proposed measures and shall implement them immediately, except where the Council has rejected the said measures by a simple majority.
Article 18
1. This Directive in no way affects Community provisions on plant-health requirements for plants and plant products, except where it provides for or expressly permits stricter requirements in this respect.
2. Under the procedure laid down in Article 16, Member States may be authorized to adopt, when introducing into their territory plants or plant products, special plant-health provisions, in so far as such measures are also laid down for home-grown production.
3. For the introduction into their territory of any plants or plant products, in particular those listed in Annex VII and their packaging or the vehicles transporting them, Member States may take special plant-health measures against the harmful organisms which generally attack plants or plant products in storage.
Article 19
Council Directive 69/466/EEC of 8 December 1969 on control of San José scale (1) shall be amended as follows: (a) In Article 7, the following paragraph 2 shall be added and the present text of that Article shall become paragraph 1:
"2. Paragraph 1 shall not apply to slightly contaminated consignments of fresh fruit."
(b) In Article 10 (1) (a), (b) and (c), references to Article 7 shall be amended to refer to "Article 7 (1)".
Article 20
1. Member States shall bring into force the laws, regulations and administrative provisions necessary to comply: (1)OJ No L 323, 24.12.1969, p. 5. (a) with the restrictions laid down in Article 11 (3) within a period of four years from its notification;
(b) with the other provisions of this Directive within a period of two years from its notification.
2. The Member States shall immediately inform the Commission of all laws, regulations and administrative provisions adopted in implementation of this Directive. The Commission shall inform the other Member States thereof.
Article 21
This Directive is addressed to the Member States.
Done at Brussels, 21 December 1976. | [
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COMMISSION REGULATION (EC) No 557/2008
of 18 June 2008
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 1580/2007 of 21 December 2007 laying down implementing rules of Council Regulations (EC) No 2200/96, (EC) No 2201/96 and (EC) No 1182/2007 in the fruit and vegetable sector (1), and in particular Article 138(1) thereof,
Whereas:
(1)
Regulation (EC) No 1580/2007 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 138 of Regulation (EC) No 1580/2007 shall be fixed as indicated in the Annex hereto.
Article 2
This Regulation shall enter into force on 19 June 2008.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 18 June 2008. | [
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COMMISSION REGULATION (EC) No 919/95 of 26 April 1995 amending Regulation (EC) No 1055/94 deferring the final date for sowing oil seeds in certain areas
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to the Act of Accession of Austria, Finland and Sweden,
Having regard to Council Regulation (EEC) No 1765/92 of 30 June 1992 establishing a support system for producers of certain arable crops (1), as last amended by the Act of Accession of Austria, Finland and Sweden, and in particular Article 12 thereof,
Whereas Article 2 (1) (c) and (d) of Commission Regulation (EEC) No 2294/92 of 31 July 1992 on detailed rules for the application of the support system for producers of the oil seeds referred to in Council Regulation (EEC) No 1765/92 (2), as last amended by Regulation (EC) No 2203/94 (3), sets 15 May as the final date that may be fixed by Member States for the sowing and submission of applications in respect of oil seeds, pursuant to Article 11 (3) of Regulation (EEC) No 1765/92; whereas Commission Regulation (EC) No 1055/94 (4) defers the final date for sowing oil seeds in certain areas;
Whereas, owing to the climatic conditions in Finland and Sweden, sowings of rape seed and colza seed in certain regions of those Member States take place after 15 May; whereas provision should therefore be made to extend the time limit for the sowing of rape seed and colza seed; whereas the extended time limits should not, however, compromise the efficiency of support system for producers of certain arable crops, nor prejudice the controls relating to this system; whereas it is therefore necessary to amend Regulation (EC) No 1055/94;
Whereas the regions in Finland listed in the Annexes correspond to the regions in its regionalization plan;
Whereas the measures provided for in this Regulation are in accordance with the opinion of the Joint Management Committee for Cereals, Oils and Fats and Dried Fodder,
HAS ADOPTED THIS REGULATION:
Article 1
Regulation (EC) No 1055/94 is hereby amended as follows:
1. Article 1 is replaced by the following:
'Article 1
1. The final date for sowing the specified oil seed crops, pursuant to Article 2 (1) (d) of Regulation (EEC) No 2294/92, shall be postponed until 31 May prior to the marketing year in question in areas to be defined by the Member States but located within the regions listed in Annex I to this Regulation.
2. In Finland the final date for sowing rape seed and colza seed shall be postponed until 15 June prior to the marketing year in question in areas to be defined by Finland but located within the regions listed in Annex II.`
2. The Annex is supplemented by the information given in Annex I hereto and shall be re-titled 'Annex I`.
3. Annex II to this Regulation is added as Annex II.
Article 2
Finland and Sweden shall notify the Commission, by 12 May 1995 at the latest, of the areas defined by them pursuant to Article 1 and of the measures taken to apply this Regulation.
Article 3
This Regulation shall enter into force on the seventh day following its publication in the Official Journal of the European Communities.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 26 April 1995. | [
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*****
COMMISSION REGULATION (EEC) No 28/85
of 4 January 1985
allocating the Community quantitative export quotas for copper ash and residues and waste and scrap
THE COMMISSION OF THE EUROPEAN
COMMUNITIES,
Having regard to the Treaty establishing the European Economic Community,
Having regard to Council Regulation (EEC) No 1023/70 of 25 May 1970 establishing a common procedure for administering quantitative quotas (1), and in particular Article 2 thereof,
Whereas Council Regulation (EEC) No 3629/84 of 19 December 1984 on export arrangements for certain types of non-ferrous metal waste and scrap (2) fixed Community quantitative export quotas for copper ash and residues and waste and scrap for 1985;
Whereas, in accordance with Article 3 of Regulation (EEC) No 3629/84, the quotas are to be allocated according to estimated needs and with regard to the export opportunities that already exist for the products in question;
Whereas it is necessary to provide for an adaptable and flexible method of administering the Community reserve which would allow all exporters equal and continuous access to the quotas until they are used up;
Whereas, since the Kingdom of Belgium, the Kingdom of the Netherlands and the Grand Duchy of Luxembourg are united within and jointly represented by the Benelux Economic Union, any measure concerning the administration of the shares allocated to that economic union may be carried out by any one of its members;
Whereas the measures provided for in this Regulation are in accordance with the opinion of the Quota Administration Committee,
HAS ADOPTED THIS REGULATION:
Article 1
The Community quantitative export quotas opened by Regulation (EEC) No 3629/84 for the period 1 January to 31 December 1985 shall be allocated among the Member States as follows, without prejudice to Article 4 hereof:
(tonnes)
1.2.3 // // // // CCT heading No // Description // Quantity // // // // ex 26.03 // Ash and residues of copper and copper alloys // Germany 7 700 France 5 000 Italy 2 550 Benelux 1 150 United Kingdom 2 400 Denmark 700 Ireland - Greece 800 + Community reserve 5 700 // 74.01 D // Waste and scrap of copper and copper alloys // Germany 12 200 France 9 200 Italy 1 700 Benelux 4 340 United Kingdom 3 000 Denmark 580 Ireland 480 Greece 300 + Community reserve 5 200 1984, p. 7.
Article 2
1. If 70 % or more of a Member State's initial share as specified in Article 1, or of that share minus the portion returned to the reserve where Article 4 is applied, has been used up, that Member State shall, by notifying the Commission, draw a second share equal to 15 % of its initial share, rounded up where necessary to the next unit, to the extent permitted by the amount of the reserve.
2. If, after its initial share has been used up, 70 % or more of the second share drawn by a Member State has been used up, that Member State shall, in accordance with the conditions imposed by paragraph 1, draw a third share equal to 7,5 % of its initial share, rounded up where necessary to the next unit.
3. If, after its second share has been used up, 70 % or more of the third share drawn by a Member State has been used up, that Member State shall, in accordance with the same conditions, draw a fourth share equal to the third.
This process shall continue to apply until the reserve is used up.
4. By way of derogation from paragraphs 1 to 3, a Member State may draw shares lower than those fixed in those paragraphs if there are grounds for believing that those fixed may not be used up. It shall inform the Commission of its reasons for applying this paragraph.
Article 3
Supplementary shares drawn pursuant to Article 2 shall be valid until 31 December 1985.
Article 4
Member States shall return to the reserve, not later than 15 October 1985, the unused portion of their initial share which they estimate will not be utilized.
Member States shall, not later than 15 October 1985, notify the Commission of any quantities of the initial shares returned to the reserve.
Article 5
The Commission shall keep an account of the shares opened by the Member States pursuant to Articles 1 and 2 and shall, as soon as it has been notified, inform each State of the extent to which the reserve has been used up.
It shall inform the Member States, not later than 20 October 1985, of the amount still in reserve after amounts have been returned thereto pursuant to Article 4.
It shall ensure that the drawing which uses up the reserve is limited to the balance available and to this end shall specify the amount thereof to the Member State making the last drawing.
Article 6
1. Member States shall take all measures necessary to ensure that supplementary shares drawn pursuant to Article 2 are opened in such a way that exports may be charged without interruption against their accumulated shares in the Community tariff quota.
2. Member States shall ensure that exporters of the said goods established in their territory have free access to the shares allocated to them.
3. Member States shall charge exports of the said goods against their shares as and when such goods are presented to the customs authorities under cover of export authorizations or customs exports documents.
4. The extent to which a Member State has used up its share shall be determined on the basis of exports charged in accordance with paragraph 3.
Article 7
Member States shall supply the Commission with the information specified in Article 8 of Regulation (EEC) No 1023/70.
Article 8
This Regulation shall enter into force on the third day following its publication in the Official Journal of the European Communities.
It shall apply until 31 December 1985. This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 4 January 1985. | [
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COMMISSION REGULATION (EC) No 113/2006
of 23 January 2006
amending the export refunds on syrups and certain other sugar sector products exported in the natural state, as fixed by Regulation (EC) No 94/2006
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 markets in the sugar sector (1), and in particular the third indent of Article 27(5) thereof,
Whereas:
(1)
The refunds on syrups and certain other sugar products were fixed by Commission Regulation (EC) No 94/2006 (2).
(2)
Since the information at present available to the Commission is different to that available to it at the time Regulation (EC) No 94/2006 was adopted, these refunds should be amended,
HAS ADOPTED THIS REGULATION:
Article 1
The refunds to be granted on the products listed in Article 1(1)(d), (f) and (g), of Regulation (EC) No 1260/2001, fixed by Regulation (EC) No 94/2006 for the marketing year 2005/06, are hereby amended and detailed in the Annex to this Regulation.
Article 2
This Regulation shall enter into force on 24 January 2006.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 23 January 2006. | [
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COUNCIL DECISION
of 29 April 2004
on the signing and provisional application of a Protocol to the Partnership and Cooperation Agreement establishing a partnership between the European Communities and their Member States, of the one part, and the Republic of Azerbaijan, of the other part, to take account of the accession of the Czech Republic, the Republic of Estonia, the Republic of Cyprus, the Republic of Latvia, the Republic of Lithuania, the Republic of Hungary, the Republic of Malta, the Republic of Poland, the Republic of Slovenia and the Slovak Republic to the European Union
(2006/452/EC)
THE COUNCIL OF THE EUROPEAN UNION,
Having regard to the Treaty establishing the European Community, and in particular Article 44(2), the last sentence of Article 47(2), and Articles 55, 57(2), 71, 80(2), 93, 94, 133 and 181a, in conjunction with the first sentence of the first subparagraph of Article 300(2),
Having regard to the Treaty of Accession of 16 April 2003, and in particular Article 2(3) thereof,
Having regard to the Act annexed to the Treaty of Accession, and in particular Article 6(2) thereof,
Having regard to the proposal from the Commission,
Whereas:
(1)
On 8 December 2003, the Council authorised the Commission, on behalf of the Community and its Member States, to negotiate with the Republic of Azerbaijan a Protocol to the Partnership and Cooperation Agreement to take account of the accession of the Czech Republic, the Republic of Estonia, the Republic of Cyprus, the Republic of Latvia, the Republic of Lithuania, the Republic of Hungary, the Republic of Malta, the Republic of Poland, the Republic of Slovenia and the Slovak Republic to the European Union, and to provide for certain technical adjustments linked to the institutional and legal developments within the European Union.
(2)
Subject to its possible conclusion at a later date, the Protocol has been negotiated between the Parties and should now be signed on behalf of the European Community and its Member States.
(3)
The Protocol should be applied on a provisional basis as from the date of accession, pending completion of the relevant procedures for its formal conclusion,
HAS DECIDED AS FOLLOWS:
Article 1
The President of the Council is hereby authorised to designate the person(s) empowered to sign, on behalf of the European Community and its Member States, the Protocol to the Partnership and Cooperation Agreement establishing a partnership between the European Communities and their Member States, of the one part, and the Republic of Azerbaijan, of the other part, to take account of the accession of the Czech Republic, the Republic of Cyprus, the Republic of Estonia, the Republic of Hungary, the Republic of Latvia, the Republic of Lithuania, the Republic of Malta, the Republic of Poland, the Republic of Slovenia and the Slovak Republic to the European Union, subject to possible conclusion at a later stage.
The text of the Protocol is attached to this Decision (1).
Article 2
Pending its entry into force, the Protocol shall be applied on a provisional basis from the date of accession.
Done at Luxembourg, 29 April 2004. | [
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COMMISSION REGULATION (EC) No 847/2008
of 28 August 2008
fixing the maximum export refund for white sugar in the framework of the standing invitation to tender provided for in Regulation (EC) No 1060/2007
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 markets in the sugar sector (1), and in particular the second subparagraph and point (b) of the third subparagraph of Article 33(2) thereof,
Whereas:
(1)
Commission Regulation (EC) No 1060/2007 of 14 September 2007 opening a standing invitation to tender for the resale for export of sugar held by the intervention agencies of Belgium, the Czech Republic, Spain, Ireland, Italy, Hungary, Poland, Slovakia and Sweden (2) requires the issuing of partial invitations to tender.
(2)
Pursuant to Article 4(1) of Regulation (EC) No 1060/2007 and following an examination of the tenders submitted in response to the partial invitation to tender ending on 27 August 2008, it is appropriate to fix a maximum export refund for that partial invitation to tender.
(3)
The measures provided for in this Regulation are in accordance with the opinion of the Management Committee for Sugar,
HAS ADOPTED THIS REGULATION:
Article 1
For the partial invitation to tender ending on 27 August 2008, the maximum export refund for the product referred to in Article 1(1) of Regulation (EC) No 1060/2007 shall be 307,08 EUR/t.
Article 2
This Regulation shall enter into force on 29 August 2008.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 28 August 2008. | [
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COUNCIL REGULATION (EC, EURATOM) No 1066/2006
of 27 June 2006
adjusting from 1 July 2006 the scale for missions by officials and other servants of the European Communities in the Member States
THE COUNCIL OF THE EUROPEAN UNION,
Having regard to the Treaty establishing the European Community,
Having regard to the Staff Regulations of officials of the European Communities and to the Conditions of employment of other servants of the European Communities, as laid down by Council Regulation (EEC, Euratom, ECSC) No 259/68 (1), and in particular Article 13 of Annex VII thereto,
Having regard to the proposal from the Commission,
Whereas:
(1)
In accordance with Article 13(3) of Annex VII to the Staff Regulations, the Commission has submitted a report on the evolution of the prices of hotels, restaurants and catering services.
(2)
On the basis of that report, daily subsistence allowances and hotel ceilings should be adjusted to take account of price increases,
HAS ADOPTED THIS REGULATION:
Article 1
The scale of mission allowances in Article 13(2) of Annex VII to the Staff Regulations is hereby replaced by the following table.
(in EUR)
Destination
Hotel ceiling
Daily allowance
‘Belgium
140
92
Czech Republic
155
75
Denmark
150
120
Germany
115
93
Estonia
110
71
Greece
140
82
Spain
125
87
France
150
95
Ireland
150
104
Italy
135
95
Cyprus
145
93
Latvia
145
66
Lithuania
115
68
Luxembourg
145
92
Hungary
150
72
Malta
115
90
Netherlands
170
93
Austria
130
95
Poland
145
72
Portugal
120
84
Slovenia
110
70
Slovakia
125
80
Finland
140
104
Sweden
160
97
United Kingdom
175
101’
Article 2
This Regulation shall enter into force on 1 July 2006.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Luxembourg, 27 June 2006. | [
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Commission Decision
of 23 April 2001
laying down specific measures in the beef sector for Austria under Regulation (EC) No 2777/2000
(notified under document number C(2001) 1109)
(Only the German text is authentic)
(2001/348/EC)
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Council Regulation (EC) No 1254/1999 of 17 May 1999 on the common organisation of the market in beef and veal(1), and in particular Article 38(2) thereof,
Whereas:
(1) Commission Regulation (EC) No 2777/2000 of 18 December 2000 adopting exceptional support measures for the beef market(2), as amended by Regulation (EC) No 111/2001(3), provides in its Article 3(4) that a Member State may be authorised to stop the application of the purchase scheme concerned if it can prove that sufficient capacity is available for BSE testing of all animals above 30 months of age constituting a normal slaughter throughput. Austria has presented to the Commission such proofs and consequently, on its request, this Member State should be authorised to stop the application of the scheme.
(2) The measures provided for in this Decision are in accordance with the opinion of the Management Committee for Beef and Veal,
HAS ADOPTED THIS DECISION:
Article 1
Austria shall be authorised to stop the application of the purchase scheme laid down in Regulation (EC) No 2777/2000.
Article 2
This Decision is addressed to the Republic of Austria.
Done at Brussels, 23 April 2001. | [
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*****
COMMISSION REGULATION (EEC) No 471/87
of 16 February 1987
amending Regulation (EEC) No 798/80 laying down detailed rules on the advance payment of export refunds and positive monetary compensatory amounts in respect of agricultural 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 1579/86 (2), and in particular Articles 16 (6) and 24 thereof, and also to the corresponding provisions of the other Regulations on the common organization of the markets in agricultural products,
Having regard to Council Regulation (EEC) No 1677/85 of 11 June 1985 on monetary compensatory amounts in agriculture (3), as last amended by Regulation (EEC) No 90/87 (4), and in particular Article 12 thereof,
Having regard to Council Regulation (EEC) No 565/80 of 4 March 1980 on the advance payment of export refunds in respect of agricultural products (5), as last amended by Regulation (EEC) No 2026/83 (6),
Whereas the aim of prefinancing refunds is to put Community produce on an equal footing with third country products imported for processing and re-exporting;
Whereas the production methods for processed products and their control procedures require a degree of flexibility;
Whereas Article 2 of Council Regulation (EEC) No 1999/85 (7) provides for a system of equivalence under the inward processing arrangements;
Whereas a system of equivalence may also be authorized for the prefinancing system given that the two regimes are similar;
Whereas the provisions of Regulation (EEC) No 565/80 and of Commission Regulation (EEC) No 798/80 (8), as last amended by Regulation (EEC) No 3903/86 (9), may have given rise to diverging interpretations as regards the possibility of using the system of equivalence;
Whereas products which are not eligible for refunds may not be equivalent products;
Whereas it is clear from the provisions of Commission Regulation (EEC) No 1687/76 (10) that intervention products must reach the prescribed destination; whereas, as a result, such products may not be replaced by equivalent products;
Whereas the measures provided for in this Regulation are in accordance with the opinions of all the Management Committees concerned,
HAS ADOPTED THIS REGULATION:
Article 1
The following Article 3a is hereby inserted in Regulation (EEC) No 798/80:
'Article 3a
1. Basic products placed under the arrangements referred to in Article 4 of Regulation (EEC) No 565/80 must form all or part of the processed products or goods which are exported. However, the basic products may, provided the competent authorities agree, be replaced by equivalent products, falling within the same subheading of the Common Customs Tariff, of the same commercial quality, having the same technical characteristics and meeting the requirements for the granting of an export refund.
2. Replacement by equivalent products shall not be allowed for intervention products purchased for export and which are under the control system set out in Article 2 of Commission Regulation (EEC) No 1687/76 (1).
(1) OJ No L 190, 14. 7. 1976, p. 1.'
Article 2
This Regulation shall enter into force on 1 March 1987.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 16 February 1987. | [
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Directive 2004/22/EC of the European Parliament and of the Council
of 31 March 2004
on measuring instruments
(Text with EEA relevance)
THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION,
Having regard to the Treaty establishing the European Community, and in particular Article 95 thereof,
Having regard to the proposal from the Commission(1),
Having regard to the Opinion of the European Economic and Social Committee(2),
Acting in accordance with the procedure laid down in Article 251 of the Treaty(3),
Whereas:
(1) A number of measuring instruments are covered by specific Directives, adopted on the basis of Council Directive 71/316/EEC of 26 July 1971 on the approximation of the laws of the Member States relating to common provisions for both measuring instruments and methods of metrological control(4). Specific Directives that are technically outdated should be repealed and replaced by an independent Directive reflecting the spirit of the Council Resolution of 7 May 1985 on a new approach to technical harmonisation and standards(5).
(2) Correct and traceable measuring instruments can be used for a variety of measurement tasks. Those responding to reasons of public interest, public health, safety and order, protection of the environment and the consumer, of levying taxes and duties and of fair trading, which directly and indirectly affect the daily life of citizens in many ways, may require the use of legally controlled measuring instruments.
(3) Legal metrological control should not lead to barriers to the free movement of measuring instruments. The provisions concerned should be the same in all Member States and proof of conformity accepted throughout the Community.
(4) Legal metrological control requires conformity with specified performance requirements. The performance requirements that the measuring instruments must meet should provide a high level of protection. The conformity assessment should provide a high level of confidence.
(5) Member States should as a general rule prescribe legal metrological control. Where legal metrological control is prescribed, only measuring instruments complying with common performance requirements should be used.
(6) The principle of optionality introduced by this Directive, whereby Member States may exercise their right to decide whether or not to regulate any of the instruments covered by this Directive, should be applicable only to the extent that this will not cause unfair competition.
(7) The responsibilities of the manufacturer for compliance with the requirements of this Directive should be specifically stated.
(8) The performance of measuring instruments is particularly sensitive to the environment, particular the electromagnetic environment. Immunity of measuring instruments to electromagnetic interference forms an integral part of this Directive and the immunity requirements of Council Directive 89/336/EEC of 3 May 1989 on the approximation of the laws of the Member States relating to electromagnetic compatibility(6) should therefore not apply.
(9) Community legislation should specify essential requirements that do not impede technical progress, preferably performance requirements. Provisions to remove technical barriers to trade should follow the Council Resolution of 7 May 1985 on a new approach to technical harmonisation and standards.
(10) In order to take account of differences in climatic conditions or of different levels of consumer protection that may apply at national level, essential requirements may give rise to the establishment of environmental or accuracy classes.
(11) In order to ease the task of proving conformity with the essential requirements and to enable conformity to be assessed, it is desirable to have harmonised standards. Such harmonised standards are drawn up by private-law bodies and should retain their status as non-mandatory texts. To this end, the European Committee for Standardisation (CEN), the European Committee for Electrotechnical Standardisation (CENELEC) and the European Telecommunications Standards Institute (ETSI) are recognised as the competent bodies for the adoption of harmonised standards in accordance with the general guidelines on cooperation between the Commission and the European Standardisation bodies signed on 13 November 1984.
(12) The technical and performance specifications of internationally agreed normative documents may also comply, in part or in full, with the essential requirements laid down by this Directive. In those cases the use of these internationally agreed normative documents can be an alternative to the use of harmonised standards and, under specific conditions, give rise to a presumption of conformity.
(13) Conformity with the essential requirements laid down by this Directive can also be provided by specifications that are not supplied by a European technical standard or an internationally agreed normative document. The use of European technical standards or internationally agreed normative documents should therefore be optional.
(14) The conformity assessment of sub-assemblies should respect the provisions of this Directive. If sub-assemblies are traded separately and independently of an instrument, the exercise of conformity assessment should be undertaken independently of the instrument concerned.
(15) The state of the art in measurement technology is subject to constant evolution which may lead to changes in the needs for conformity assessments. Therefore, for each category of measurement and, where appropriate, sub-assemblies, there must be an appropriate procedure or a choice between different procedures of equivalent stringency. The procedures adopted are as required by Council Decision 93/465/EEC of 22 July 1993 concerning the modules for the various phases of the conformity assessment procedures and the rules for the affixing and use of the "CE" marking, which are intended to be used in the technical harmonisation Directives(7). However, derogations may have to be made for these modules in order to reflect specific aspects of metrological control. Provision should be made for the "CE" marking to be affixed during the fabrication process.
(16) Continued development in measurement technology as well as concerns expressed by stakeholders about certification, stress the need to ensure consistent conformity assessment procedures for industrial products, as requested by the Council Resolution adopted on 10 November 2003(8).
(17) Member States should not impede the placing on the market and/or putting into use of measuring instruments that carry the "CE" marking and supplementary metrology marking in accordance with the provisions of this Directive.
(18) Member States should take appropriate action to prevent non-complying measuring instruments from being placed on the market and/or put into use. Adequate cooperation between the competent authorities of the Member States is therefore necessary to ensure a Community-wide effect of this objective.
(19) Manufacturers should be informed of the grounds on which negative decisions in respect of their products were taken, and of the legal remedies available to them.
(20) Manufacturers should be offered the possibility to exercise the rights obtained before the entry into force of this Directive, during a reasonable transitional period.
(21) National specifications concerning the appropriate national requirements in use should not interfere with the provisions of this Directive on "putting into use".
(22) The measures necessary for the implementation of this Directive should be adopted in accordance with Council Decision 1999/468/EC of 28 June 1999 laying down the procedures for the exercise of implementing powers conferred on the Commission(9).
(23) The activity of the Measuring Instruments Commmittee should include proper consultations with representatives of interested parties.
(24) Directives 71/318/EEC, 71/319/EEC, 71/348/EEC, 73/362/EEC, 75/33/EEC, as concerns the meters defined in Annex MI-001 of this Directive, 75/410/EEC, 76/891/EEC, 77/95/EEC, 77/313/EEC, 78/1031/EEC and 79/830/EEC should therefore be repealed,
HAVE ADOPTED THIS DIRECTIVE:
Article 1
Scope
This Directive applies to the devices and systems with a measuring function defined in the instrument-specific annexes concerning water meters (MI-001), gas meters and volume conversion devices (MI-002), active electrical energy meters (MI-003), heat meters (MI-004), measuring systems for continuous and dynamic measurement of quantities of liquids other then water (MI-005), automatic weighing instruments (MI-006), taximeters (MI-007), material measures (MI-008), dimensional measuring instruments (MI-009) and exhaust gas analysers (MI-010).
Article 2
1. Member States may prescribe the use of measuring instruments mentioned in Article 1 for measuring tasks for reasons of public interest, public health, public safety, public order, protection of the environment, protection of consumers, levying of taxes and duties and fair trading, where they consider it justified.
2. Where Member States do not prescribe such use, they shall communicate the reasons therefor to the Commission and the other Member States.
Article 3
Object
This Directive establishes the requirements that the devices and systems referred to in Article 1 have to satisfy with a view to their being placed on the market and/or put into use for those tasks mentioned in Article 2(1).
This Directive is a specific Directive in respect of requirements for electromagnetic immunity in the sense of Article 2(2) of Directive 89/336/EEC. Directive 89/336/EEC continues to apply with regard to emission requirements.
Article 4
Definitions
For the purposes of this Directive:
(a) "measuring instrument" means any device or system with a measurement function that is covered by Articles 1 and 3;
(b) "sub-assembly" means a hardware device, mentioned as such in the specific annexes, that functions independently and makes up a measuring instrument together
- with other sub-assemblies with which it is compatible, or
- with a measuring instrument with which it is compatible;
(c) "legal metrological control" means the control of the measurement tasks intended for the field of application of a measuring instrument, for reasons of public interest, public health, public safety, public order, protection of the environment, levying of taxes and duties, protection of the consumers and fair trading;
(d) "manufacturer" means a natural or legal person responsible for the conformity of the measuring instrument with this Directive with a view to either placing it on the market under his own name and/or putting it into use for his own purposes;
(e) "placing on the market" means making available for the first time in the Community an instrument intended for an end user, whether for reward or free of charge;
(f) "putting into use" means the first use of an instrument intended for the end user for the purposes for which it was intended;
(g) "authorised representative" means a natural or legal person who is established within the Community and authorised by a manufacturer, in writing, to act on his behalf for specified tasks within the meaning of this Directive;
(h) "harmonised standard" means a technical specification adopted by CEN, CENELEC or ETSI or jointly by two or all of these organisations, at the request of the Commission pursuant to Directive 98/34/EC of the European Parliament and of the Council of 22 June 1998 laying down a procedure for the provision of information in the field of technical standards and regulations and of rules on Information Society services(10) and prepared in accordance with the General Guidelines agreed between the Commission and the European standards organisations;
(i) "normative document" means a document containing technical specifications adopted by the Organisation Internationale de Métrologie Légale (OIML), subject to the procedure stipulated in Article 16(1).
Article 5
Applicability to sub-assemblies
Where specific annexes exist, laying down the essential requirements for sub-assemblies, the provisions of this Directive shall apply mutatis mutandis to such sub-assemblies.
Sub-assemblies and measuring instruments may be assessed independently and separately for the purpose of establishing conformity.
Article 6
Essential requirements and assessment of conformity
1. A measuring instrument shall meet the essential requirements laid down in Annex I and in the relevant instrument-specific Annex.
Member States may require, if it is needed for correct use of the instrument, the information referred to in Annex I or in the relevant instrument-specific annexes to be provided in the official language(s) of the Member State in which the instrument is placed on the market.
2. The conformity of a measuring instrument with the essential requirements shall be assessed in accordance with Article 9.
Article 7
Conformity marking
1. The conformity of a measuring instrument with all the provisions of this Directive shall be indicated by the presence on it of the "CE" marking and the supplementary metrology marking as specified in Article 17.
2. The "CE" marking and supplementary metrology marking shall be affixed by, or under the responsibility of, the manufacturer. These markings may be affixed to the instrument during the fabrication process, if justified.
3. The affixing of markings on a measuring instrument that are likely to deceive third parties as to the meaning and/or form of the "CE" marking and the supplementary metrology marking shall be prohibited. Any other marking may be affixed on a measuring instrument, provided that the visibility and legibility of the "CE" marking and the supplementary metrology marking is not thereby reduced.
4. Where the measuring instrument is subject to measures adopted under other Directives covering other aspects which require the affixing of the "CE" marking, the marking shall indicate that the instrument in question is also presumed to conform to the requirements of those other Directives. In such a case, the publication reference of the said Directives, in the Official Journal of the European Union, must be given in the documents, notices or instructions required by those Directives and accompanying the measuring instrument.
Article 8
Placing on the market and putting into use
1. Member States shall not impede for reasons covered by this Directive the placing on the market and/or putting into use of any measuring instrument that carries the "CE" marking and supplementary metrology marking in accordance with Article 7.
2. Member States shall take all appropriate measures to ensure that measuring instruments be placed on the market and/or put into use only if they satisfy the requirements of this Directive.
3. A Member State may require a measuring instrument to satisfy provisions governing its putting into use that are justified by local climatic conditions. In such a case, the Member State shall choose appropriate upper and lower temperature limits from Table 1 of Annex I and, in addition, may specify humidity conditions (condensing or non-condensing) and whether the intended location of use is open or closed.
4. When different accuracy classes are defined for a measuring instrument:
(a) the instrument-specific annexes under the heading "Putting into use" may indicate the accuracy classes to be used for specific applications.
(b) in all other cases a Member State may determine the accuracy classes to be used for specific applications within the classes defined, subject to allowing the use of all accuracy classes on its territory.
In either case falling under (a) or (b), measuring instruments of a better accuracy class may be used if the owner so chooses.
5. At trade fairs, exhibitions, demonstrations, etc., Member States shall not prevent the showing of instruments not in conformity with this Directive, provided that a visible sign clearly indicates their non-conformity and their non-availability for placing on the market and/or putting into use until brought into conformity.
Article 9
Conformity assessment
Conformity assessment of a measuring instrument with the relevant essential requirements shall be carried out by the application, at the choice of the manufacturer, of one of the conformity assessment procedures listed in the instrument-specific annex. The manufacturer shall provide, where appropriate, technical documentation for specific instruments or groups of instruments as set out in Article 10.
The conformity assessment modules making up the procedures are described in Annexes A to H1.
Records and correspondence relating to conformity assessment shall be drawn up in the official language(s) of the Member State where the notified body carrying out the Conformity assessment procedures is established, or in a language accepted by that body.
Article 10
Technical Documentation
1. The technical documentation shall render the design, manufacture and operation of the measuring instrument intelligible and shall permit an assessment of its conformity with the appropriate requirements of this Directive.
2. The technical documentation shall be sufficiently detailed to ensure:
- the definition of the metrological characteristics,
- the reproducibility of the metrological performances of produced instruments when properly adjusted using appropriate intended means, and
- the integrity of the instrument.
3. The technical documentation shall include insofar as relevant for assessment and identification of the type and/or instrument:
(a) a general description of the instrument;
(b) conceptual design and manufacturing drawings and plans of components, sub-assemblies, circuits, etc;
(c) manufacturing procedures to ensure consistent production;
(d) if applicable, a description of the electronic devices with drawings, diagrams, flow diagrams of the logic and general software information explaining their characteristics and operation;
(e) descriptions and explanations necessary for the understanding of paragraphs (b), (c) and (d), including the operation of the instrument;
(f) a list of the standards and/or normative documents referred to in Article 13, applied in full or in part;
(g) descriptions of the solutions adopted to meet the essential requirements where the standards and/or normative documents referred to in Article 13 have not been applied;
(h) results of design calculations, examinations, etc;
(i) the appropriate test results, where necessary, to demonstrate that the type and/or instruments comply with:
- the requirements of this Directive under declared rated operating conditions and under specified environmental disturbances,
- the durability specifications for gas-, water-, heat-meters as well as for liquids other than water.
(j) the EC-type examination certificates or EC design examination certificates in respect of instruments containing parts identical to those in the design.
4. The manufacturer shall specify where seals and markings have been applied.
5. The manufacturer shall indicate the conditions for compatibility with interfaces and sub-assemblies, where relevant.
Article 11
Notification
1. Member States shall notify to the other Member States and the Commission the bodies under their jurisdiction, which they have designated to carry out the tasks pertaining to the conformity assessment modules referred to in Article 9, together with the identification numbers given to them by the Commission in accordance with paragraph 4 of this Article, the kind(s) of measuring instrument for which each body has been designated and in addition, where relevant, the instrument accuracy classes, the measuring range, the measurement technology, and any other instrument characteristic limiting the scope of the notification.
2. Member States shall apply the criteria set out in Article 12 for the designation of such bodies. Bodies that meet the criteria laid down in the national standards which transpose the relevant harmonised standards, the references of which have been published in the Official Journal of the European Union, shall be presumed to meet the corresponding criteria. Member States shall publish the references to these national standards.
If a Member State has not introduced national legislation for tasks mentioned under Article 2, it shall retain the right to designate and notify a body for tasks relating to that instrument.
3. A Member State that has notified a body shall:
- ensure that the body continues to meet the criteria set out in Article 12,
- withdraw such notification if it finds that the body no longer meets those criteria.
It shall forthwith inform the other Member States and the Commission of any such withdrawal.
4. Each of the bodies to be notified shall be given an identification number by the Commission. The Commission shall publish the list of notified bodies, together with the information in respect of the scope of the notification referred to in paragraph 1, in the Official Journal of the European Union, C series, and shall ensure that the list is kept up to date.
Article 12
Criteria to be satisfied by designated bodies
Member States shall apply the following criteria for the designation of bodies in accordance with Article 11(1).
1. The body, its director and staff involved in conformity assessment tasks shall not be the designer, manufacturer, supplier, installer or user of the measuring instruments that they inspect, nor the authorised representative of any of them. In addition, they may not be directly involved in the design, manufacture, marketing or maintenance of the instruments, nor represent the parties engaged in these activities. The preceding criterion does not, however, preclude in any way the possibility of exchanges of technical information between the manufacturer and the body for the purposes of conformity assessment.
2. The body, its director and staff involved in conformity assessment tasks shall be free from all pressures and inducements, in particular financial inducements, that might influence their judgement or the results of their conformity assessment, especially from persons or groups of persons with an interest in the results of the assessments.
3. The conformity assessment shall be carried out with the highest degree of professional integrity and requisite competence in the field of metrology. Should the body subcontract specific tasks, it shall first ensure that the subcontractor meets the requirements of this Directive, and in particular of this Article. The body shall keep the relevant documents assessing the subcontractor's qualifications and the work carried out by him under this Directive at the disposal of the notifying authority.
4. The body shall be capable of carrying out all the conformity assessment tasks for which it has been designated, whether those tasks are carried out by the body itself or on its behalf and under its responsibility. It shall have at its disposal the necessary staff and shall have access to the necessary facilities for carrying out in a proper manner the technical and administrative tasks entailed in conformity assessment.
5. The body's staff shall have:
- sound technical and vocational training, covering all conformity assessment tasks for which the body was designated;
- satisfactory knowledge of the rules governing the tasks which it carries out, and adequate experience of such tasks;
- the requisite ability to draw up the certificates, records and reports demonstrating that the tasks have been carried out.
6. The impartiality of the body, its director and staff shall be guaranteed. The remuneration of the body shall not depend on the results of the tasks it carries out. The remuneration of the body's director and staff shall not depend on the number of tasks carried out or on the results of such tasks.
7. The body shall take out civil liability insurance if its civil liability is not covered by the Member State concerned under national law.
8. The body's director and staff shall be bound to observe professional secrecy with regard to all information obtained in the performance of their duties pursuant to this Directive, except vis-à-vis the authority of the Member State which has designated it.
Article 13
Harmonised standards and normative documents
1. Member States shall presume conformity with the essential requirements referred to in Annex I and in the relevant instrument-specific Annexes in respect of a measuring instrument that complies with the elements of the national standards implementing the European harmonised standard for that measuring instrument that correspond to those elements of this European harmonised standard the references in respect of which have been published in the Official Journal of the European Union, C series.
Where a measuring instrument complies only in part with the elements of the national standards referred to in the first subparagraph, Member States shall presume conformity with the essential requirements corresponding to the elements of the national standards with which the instrument complies.
Member States shall publish the references to the national standards referred to in the first subparagraph.
2. Member States shall presume conformity with the essential requirements referred to in Annex I and in the relevant instrument-specific Annexes in respect of a measuring instrument that complies with the corresponding parts of the normative documents and lists referred to in Article 16(1)(a), the references in respect of which have been published in the Official Journal of the European Union, C series.
Where a measuring instrument complies only in part with the normative document referred to in the first subparagraph, Member States shall presume conformity with the essential requirements corresponding to the normative elements with which the instrument complies.
Member States shall publish the references of the normative document referred to in the first subparagraph.
3. A manufacturer may choose to use any technical solution that complies with the essential requirements referred to in Annex I and in the relevant instrument-specific Annexes (MI-001 to MI-010). In addition, to benefit from the presumption of conformity, the manufacturer must correctly apply solutions mentioned either in the relevant European harmonised standards, or in the corresponding parts of the normative documents and lists as referred to in paragraphs 1 and 2.
4. Member States shall presume compliance with the appropriate tests mentioned in point (i) of Article 10 if the corresponding test programme has been performed in accordance with the relevant documents mentioned in paragraphs 1 to 3 and if the test results ensure compliance with the essential requirements.
Article 14
Standing Committee
Where a Member State or the Commission considers that a European harmonised standard as referred to in Article 13(1) does not fully meet the essential requirements referred to in Annex I and in the relevant instrument-specific Annexes, the Member State or the Commission shall bring the matter before the Standing Committee set up under Article 5 of Directive 98/34/EC, giving its reasons for doing so. The Committee shall deliver an opinion without delay.
In the light of the Committee's opinion, the Commission shall inform the Member States whether or not it is necessary to withdraw the references to the national standards from the publication referred to in the third subparagraph of Article 13(1).
Article 15
Measuring Instruments Committee
1. The Commission shall be assisted by the Measuring Instruments Committee.
2. Where reference is made to this paragraph, Articles 3 and 7 of Decision 1999/468/EC shall apply, having regard to the provisions of Article 8 thereof.
3. Where reference is made to this paragraph, Articles 5 and 7 of Decision 1999/468/EC shall apply, having regard to the provisions of Article 8 thereof.
The period laid down in Article 5(6) of Decision 1999/468/EC shall be set at three months.
4. The Committee shall adopt its Rules of Procedure.
5. The Commission shall ensure that relevant information about envisaged measures, as referred to in Article 16, is made available to interested parties in due time.
Article 16
Functions of the Measuring Instruments Committee
1. On request by a Member State or on its own initiative, the Commission, acting in accordance with the procedure referred to in Article 15(2), may take any appropriate measure to:
(a) identify normative documents drawn up by OIML and, in a list, indicate the parts thereof compliance with which gives rise to a presumption of conformity with the corresponding essential requirements of this Directive;
(b) publish the references of the normative documents and the list referred to in point (a) in the Official Journal of the European Union, C series.
2. On request by a Member State or on its own initiative, the Commission, acting in accordance with the procedure referred to in Article 15(3), may take any appropriate measure to amend instrument-specific annexes (MI-001 to MI-010) in respect of:
- the maximum permissible errors (MPEs) and accuracy classes,
- the rated operating conditions,
- the critical change values,
- disturbances,
3. Where a Member State or the Commission considers that a normative document whose references have been published in the Official Journal of the European Union, C series, in accordance with paragraph 1(b), does not fully meet the essential requirements referred to in Annex I and in the relevant instrument-specific Annexes, that Member State or the Commission shall bring the matter before the Measuring Instruments Committee, giving the reasons for doing so.
The Commission, acting in accordance with the procedure referred to in Article 15(2), shall inform the Member States whether or not it is necessary to withdraw the references to the normative document concerned from publication in the Official Journal.
4. Member States may take appropriate measures to consult interested parties at national level about OIML work relating to the scope of this Directive.
Article 17
Markings
1. The "CE" marking referred to in Article 7 consists of the symbol "CE" according to the design laid down in paragraph I.B(d) of the Annex to Decision 93/465/EEC. The "CE" marking shall be at least 5 mm high.
2. The supplementary metrology marking consists of the capital letter "M" and the last two digits of the year of its affixing, surrounded by a rectangle. The height of the rectangle shall be equal to the height of the "CE" marking. The supplementary metrology marking shall immediately follow the "CE" marking.
3. The identification number of the notified body concerned referred to in Article 11, if prescribed by the conformity assessment procedure, shall follow the "CE" marking and supplementary metrology marking.
4. When a measuring instrument consists of a set of devices, not being sub-assemblies, operating together, the markings shall be affixed on the instrument's main device.
When a measuring instrument is too small or too sensitive to carry the "CE" marking and supplementary metrology marking, the markings shall be carried by the packaging, if any, and by the accompanying documents required by this Directive.
5. The "CE" marking and supplementary metrology marking shall be indelible. The identification number of the notified body concerned shall be indelible or self destructive upon removal. All markings shall be clearly visible or easily accessible.
Article 18
Market surveillance and administrative cooperation
1. Member States shall take all appropriate measures to ensure that measuring instruments that are subject to legal metrological control but do not comply with applicable provisions of this Directive are neither placed on the market nor put into use.
2. The competent authorities of the Member States shall assist each other in the fulfilment of their obligations to carry out market surveillance.
In particular, the competent authorities shall exchange:
- information concerning the extent to which instruments they examine comply with the provisions of this Directive, and the results of such examinations;
- EC-type examination and design examination certificates and their annexes issued by notified bodies as well as additions, amendments and withdrawals relating to certificates already issued;
- quality system approvals issued by notified bodies, as well as information on quality systems refused or withdrawn;
- evaluation reports established by notified bodies, when demanded by other authorities.
3. The Member States shall ensure that all necessary information relating to the certificates and quality system approvals is made available to bodies they have notified.
4. Each Member State shall inform the other Member States and the Commission which competent authorities it has designated for such exchange of information.
Article 19
Safeguard clause
1. Where a Member State establishes that all or part of the measuring instruments of a particular model that bear the "CE" marking and the supplementary metrology marking do not satisfy the essential requirements relating to metrological performance set out in this Directive, when correctly installed and used in accordance with the manufacturer's instructions, it shall take all appropriate measures to withdraw these instruments from the market, prohibit or restrict their further being placed on the market, or prohibit or restrict their further being used.
When deciding on the above measures, the Member State shall take account of the systematic or incidental nature of the non-compliance. Where the Member State has established that the non-compliance is of a systematic nature, it shall immediately inform the Commission of the measures taken, indicating the reasons for its decision.
2. The Commission shall enter into consultation with the parties concerned as soon as possible.
(a) Should the Commission find that the measures taken by the Member State concerned are justified, it shall immediately inform that Member State thereof, as well as the other Member States.
The competent Member State shall take appropriate action against any person who affixed the markings and shall inform the Commission and the other Member States thereof.
If the non-compliance is attributed to shortcomings in the standards or normative documents, the Commission shall, after consulting the parties concerned, bring the matter as soon as possible before the appropriate Committee referred to in Articles 14 or 15.
(b) Should the Commission find that the measures taken by the Member State concerned are not justified, it shall immediately inform that Member State thereof, as well as the manufacturer concerned or his authorised representative.
The Commission shall ensure that the Member States are kept informed of the progress and outcome of the procedure.
Article 20
Unduly fixed markings
1. Where a Member State establishes that the "CE" marking and supplementary metrology marking have been affixed unduly, the manufacturer or his authorised representative shall be obliged:
- to make the instrument conform as regards those provisions concerning the "CE" marking and supplementary metrology marking not covered by Article 19(1) and
- to end the infringement under the conditions imposed by the Member State.
2. Should the infringement described above persist, the Member State must take all appropriate measures to restrict or prohibit the placing on the market of the instrument in question or to ensure that it is withdrawn from the market or prohibit or restrict its further use in accordance with the procedures laid down in Article 19.
Article 21
Decisions entailing refusal or restriction
Any decision taken pursuant to this Directive entailing the withdrawal from the market of a measuring instrument, or prohibiting or restricting the placing on the market or putting into use of an instrument, shall state the exact grounds on which it is based. The decision shall be notified forthwith to the party concerned, who shall at the same time be informed of the legal remedies available to him under the law of the Member State concerned and of the time limits to which such remedies are subject.
Article 22
Repeals
The following Directives shall be repealed as from 30 October 2006 without prejudice to Article 23:
- Council Directive 71/318/EEC of 26 July 1971 on the approximation of the laws of the Member States relating to gas meters(11),
- Directive 71/319/EEC of 26 July 1971 on the approximation of the laws of the Member States relating to meters for liquids other than water(12);
- Directive 71/348/EEC of 12 October 1971 on the approximation of the laws of the Member States relating to ancillary equipment for meters for liquids other than water(13),
- Directive 73/362/EEC of 19 November 1973 on the approximation of the laws of the Member States relating to material measures of length(14),
- Directive 75/33/EEC of 17 December 1974 on the approximation of the laws of the Member States relating to cold water meters, as concerns the meters defined in Annex MI-001 of this Directive(15).
- Directive 75/410/EEC of 24 June 1975 on the approximation of the laws of the Member States relating to continuous totalising weighing machines(16),
- Directive 76/891/EEC of 4 November 1976 on the approximation of the laws of the Member States relating to electrical energy meters(17),
- Directive 77/95/EEC of 21 December 1976 on the approximation of the laws of the Member States relating to taximeters(18),
- Directive 77/313/EEC of 5 April 1977 on the approximation of the laws of the Member States relating to measuring systems for liquids other than water(19),
- Directive 78/1031/EEC of 5 December 1978 on the approximation of the laws of the Member States relating to automatic checkweighing and weight grading machines(20),
- Directive 79/830/EEC of 11 September 1979 on the approximation of the laws of the Member States relating to hot-water meters(21).
Article 23
Transitional provisions
By way of derogation from Article 8(2), Member States shall permit, for measurement tasks for which they have prescribed the use of a legally controlled measuring instrument, the placing on the market and putting into use of measuring instruments that satisfy the rules applicable before 30 October 2006 until the expiry of the validity of the type approval of those measuring instruments or, in the case of a type approval of indefinite validity, for a period of a maximum of ten years from 30 October 2006.
Article 24
Transposition
1. Member States shall adopt and publish the laws, regulations and administrative provisions necessary to comply with this Directive before 30 April 2006. They shall forthwith inform the Commission thereof.
When Member States adopt those measures, they shall contain a reference to this Directive or shall be accompanied by such a reference on the occasion of their official publication. The methods of making such reference shall be laid down by the Member States.
Member States shall apply these provisions from 30 October 2006.
2. Member States shall communicate to the Commission the text of the provisions of national law which they adopt in the field covered by this Directive.
Article 25
Revision clause
The European Parliament and the Council invite the Commission to report, before 30 April 2011, on the implementation of this Directive, inter alia, on the basis of reports provided by the Member States, and, where appropriate, to submit a proposal for amendments.
The European Parliament and Council invite the Commission to evaluate whether conformity assessment procedures for industrial products are properly applied and, where appropriate, to propose amendments in order to ensure consistent certification.
Article 26
Entry into force
This Directive shall enter into force on the day of its publication in the Official Journal of the European Union.
Article 27
Addressees
This Directive is addressed to the Member States.
Done at Strasbourg, 31 March 2004. | [
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Council Regulation (EC) No 704/2002
of 25 March 2002
temporarily suspending autonomous Common Customs Tariff duties on imports of certain industrial products and opening and providing for the administration of autonomous Community tariff quotas on imports of certain fishery products into the Canary Islands
THE COUNCIL OF THE EUROPEAN UNION,
Having regard to the Treaty establishing the European Community, and in particular Article 299(2) thereof,
Having regard to the proposal from the Commission(1),
Having regard to the opinion of the European Parliament(2),
Having regard to the opinion of the Economic and Social Committee,
Having regard to the opinion of the Committee of the Regions,
Whereas:
(1) In October and November 2000 the Spanish authorities asked to maintain the Common Customs Tariff (CCT) measures for the Canary Islands first introduced by Council Regulation (EEC) No 1911/91 of 26 June 1991 on the application of the provisions of Community law to the Canary Islands(3), which expired on 31 December 2001, for another period of 10 years and submitted some documentation justifying their request. However, the time to evaluate the documentation was insufficient to reach a definitive conclusion as to whether maintaining the measures for the requested period was still justified.
(2) The application of the tariff measures was therefore prolonged for one year by Council Regulations (EC) No 1105/2001 of 30 May 2001 amending Regulation (EEC) No 1911/91(4) and (EC) No 1106/2001 of 30 May 2001 extending the period of application of Regulation (EEC) No 3621/92 temporarily suspending the autonomous Common Customs Tariff duties on imports of certain fishery products into the Canary Islands and Regulation (EC) No 527/96 temporarily suspending the autonomous Common Customs Tariff duties and progressively introducing the Common Customs Tariff duties on imports of certain industrial products into the Canary Islands(5).
(3) Since the introduction of specific measures for the Canary Islands in 1991 the economic situation of the region has significantly improved. Average income of workers and employees have almost reached the corresponding averages of Spain. Unemployment has fallen to levels which correspond to the Spanish average (around 12 %) and the gap in the living standard of the people between the Islands and Spain has almost been closed. This development was mainly due to the enormous increase in the tourist sector and the commerce related to it and to improvements in the agricultural sector.
(4) At the same time, however, it was noted that development of the manufacturing sector stayed significantly behind the other two sectors and is in danger of being completely sidelined. The contribution of this sector to the gross national product (GNP) of the Canary Islands has fallen in the last two years to less than 6 % of the local GNP. The reasons for this decrease will be explained below. A further decrease in this area of economy bares the risk that the overall economic situation becomes more vulnerable in view of a certain volatility of international tourism on which the islands are more and more dependent.
(5) Until now the industrial sector in the Canaries mainly produces for the local market of the islands and has, despite its vicinity to the African continent, enormous difficulties in finding customers for its products outside the islands. This difficult situation is mainly caused by a lack of transport means and the high level of transport costs for the purchase and the distribution of goods. This has a negative impact on the manufacturing costs of finished goods which can lead to an increase in manufacturing costs of up to 12 % compared to manufacturing costs of similar companies on the Spanish peninsula depending on the type of product. In addition, the development of energy prices and its worldwide impact on transport costs in the last two years has certainly contributed to a further deterioration of the competitive situation of the industrial sector on the islands. Furthermore, at the same time the advantages resulting from autonomous tariff suspensions introduced since 1991 in order to support the development of this sector were continuously reduced. This had the effect that the competitiveness of the local industries in relation to its competitors on the Spanish mainland and the rest of the Community suffered severely.
(6) Both aspects contributed to the standstill in the industrial development which lead to disconnection of the sector from the general economic developments of the Canary Islands.
(7) Given the social and economic development in the Canary Islands since 1991 it is not appropriate to phase out by the end of 2001 the existing autonomous tariff measures. An elimination of these measures would have an immediate inflationary effect on the Canarian market and would risk to eliminate more or less the already very small industrial base of the islands. It is, however, necessary to restructure the tariff measures taking hereby into account the changes in the social and economic situation of the people living on the islands, the difficult competitive situation of the local industries, and the changes of the duty rates of the CCT due to the results of the Uruguay round.
(8) Distinction should therefore be made between the treatment of end-consumer industrial products, capital investment goods and raw materials, parts and components for industrial transformation and maintenance. Products subject to CCT duties below 2 % on 1 January 2002 should be excluded from the suspensions since the economic impact resulting from the suspension is considered to be insignificant. Furthermore, products within the scope of the proposal for a Council Decision on the arrangements concerning the AIEM tax applicable in the Canary Islands should also be excluded from tariff suspension as it would be against the single market principle to replace Community customs duties by local taxes.
(9) Imports of end-consumer products benefited in the years 2000 and 2001 from an average duty advantage of 4,5 %. Since the economic and social situation of the people living on the islands has very much improved since 1991 and considering that there are other regions in the Community whose economic situation are significantly worse and which do not benefit from similar advantages, it is appropriate that the duty suspensions for end-consumer products should be phased out.
(10) However, in order to avoid inflationary effects on the Canarian market, the suspensions and tariff quotas should be repealed step by step over a period of five years.
(11) In order to avoid a deflection of the trade with end-consumer products, the suspensions should only apply to products which are unloaded from ship or aircraft when the customs declaration for release into free circulation is submitted to the Spanish customs authorities located on the Canary Islands and which are removed from the customs area after release into free circulation. Also special provisions need to be foreseen for the import of motor cars.
(12) As demonstrated above the industrial sector faces today the risk of being completely sidelined and is further away than ever from the possibility of achieving an economy of scale by selling its products to customers outside the islands. In order to give this sector the possibility of restoring and improving its competitiveness, it is necessary to set a framework of measures which gives a long-term perspective to investors and enables the economic operators to reach a level of industrial and commercial activities which makes it more interesting for cargo transport companies to offer better services at reasonable prices.
(13) It is, therefore, appropriate to suspend in full the CCT duties for capital investment goods and raw materials, parts and components for industrial transformation and maintenance used by companies in the Canary Islands for a period of 10 years starting on 1 January 2002.
(14) The suspensions should be made conditional on the end use of the products in accordance with the customs legislation in force.
(15) The exceptional geographical situation of the Canary Islands in relation to the sources of supply of certain fishery products which are essential for domestic consumption entails additional costs for this sector. This natural handicap can be remedied, inter alia, by temporarily suspending customs duties on imports of the products in question from third countries within Community tariff quotas of an appropriate volume.
(16) The competent Spanish authorities have submitted a report on the working of the tariff suspension arrangements under Council Regulation (EEC) No 3621/92, and the Commission has examined the impact of the measures adopted on imports of certain fishery products into the Canary Islands.
(17) The Commission considers that two tariff quotas for certain fishery products are warranted because they would cover the needs of the Canary Islands' domestic market while ensuring that flows of reduced-duty imports into the Community remain predictable and clearly identifiable.
(18) To avoid directly affecting the working of the internal market, measures should be taken to ensure that fishery products for which suspension is requested are intended solely for the Canary Islands' domestic market.
(19) 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) codified the management rules for tariff quotas designed to be used following the chronological order of dates of customs declarations.
(20) Measures should be taken to permit the Commission to be regularly informed of the imports in question and provision should be made to empower the Commission, following receipt of the opinion of the Customs Code Committee to adopt temporary measures, if necessary, designed to prevent any speculative movement of deflection of trade till a definitive solution is adopted by the Community institutions.
(21) Amendments to the Combined Nomenclature do not normally give rise to any substantive changes to the nature of the measures. For reasons of simplification, provision should therefore be made to empower the Commission, following receipt of the opinion of the Customs Code Committee, to make the necessary amendments and technical adaptations of the Annexes to this Regulation, including the publication of a consolidated version.
(22) In order to ensure a continuity with the measures set out in Regulation (EEC) No 1911/91, it is necessary to apply the measures provided in this Regulation from 1 January 2002,
HAS ADOPTED THIS REGULATION:
Article 1
1. From 1 January 2002 to 31 December 2006 the CCT duties applicable to imports into the Canary Islands of end-consumer products listed in Annex I Section A shall be suspended at the levels and in accordance with the timetable laid down in the said section.
2. From 1 January 2002 to 31 December 2006 the CCT duties applicable to imports into the Canary Islands of end-consumer products listed in Annex I Section B shall be suspended at the levels and in accordance with the timetable laid down in this section up to the amounts indicated.
3. The suspensions shall only be applied to goods which are unloaded from ship or aircraft before the customs declaration for release into free circulation is submitted to the customs authorities located on the Canary Islands.
Imported motor cars falling within CN code 8703 and motor cycles falling within CN code 8711 for which duties have been suspended in accordance with this Regulation have to be registered for a period of at least 24 month by persons having their main residence on the Canary Islands in accordance with the provisions of the Spanish road traffic laws.
4. From 1 January 2002 to 31 December 2011 the CCT duties applicable to imports into the Canary Islands of capital investment goods for commercial and industrial use listed in Annex II shall be suspended in full. These goods shall be used for a period of at least 24 months after the release into free circulation by economic operators located on the Canary Islands.
5. From 1 January 2002 to 31 December 2011 the CCT duties applicable to imports into the Canary Islands of raw materials, parts and components used for industrial transformation and maintenance listed in Annex III shall be suspended in full.
Article 2
1. The competent Spanish authorities shall take the measures necessary to ensure compliance with Article 1. They shall inform the Commission of implemented measures before 1 July 2002.
2. The suspension of duties referred to in Article 1(4) and (5) shall be subject to end-use in accordance with Articles 21 and 82 of Council Regulation (EEC) No 2913/92(7) and to the controls laid down by the Community implementing provisions for those Articles.
3. The tariff quotas listed in Annex I Section B and Annex IV shall be administered by the Commission in accordance with Articles 308a, 308b and 308c of Regulation (EEC) No 2454/93.
Article 3
1. From 1 January 2002 to 31 December 2006 the CCT duties applicable to imports into the Canary Islands of the fishery products listed in Annex IV shall be suspended in full for the quantity indicated.
2. The basic quota volumes set out in Annex IV shall be increased by 2,5 % each year.
3. The suspension referred to in paragraph 1 shall be granted exclusively for products intended for the Canary Islands' domestic market. They shall only be applied to fishery products which are unloaded from ship or aircraft before the customs declaration for release into free circulation is submitted to the customs authorities located on the Canary Islands.
The competent Spanish authorities shall adopt the measures necessary to ensure compliance, and in particular the levying of CCT duties, when the products in question are dispatched to other parts of the customs territory of the Community. They shall inform the Commission of implemented measures before 1 July 2002.
Article 4
1. The competent Spanish authorities shall send on 1 March and 1 October of each year a semi-annual report to the Commission on the imports of goods for which duty suspensions have been granted in accordance with the provisions of Article 1. The reports shall cover the period from 1 January to 30 June and 1 July to 31 December of each year respectively. The reports shall show for each the 8 digit CN code, the total customs value and the total weight of the imports during the six-month period. The report shall be broken down into four parts in accordance with the Annexes I, II and III of this Regulation.
2. If the Spanish authorities wish to eliminate or add new products to the products listed in Annex II and III of this Regulation, they shall lodge before 1 April of each year a request to the Commission accompanied by satisfactory documentary evidence justifying the request. The Commission will examine the request on the basis of the evidence submitted and propose to the Council, when the request is considered acceptable, the necessary amendments to the Annexes concerned.
Article 5
1. Before 1 June 2004 the competent Spanish authorities shall submit a report to the Commission on the implementation of the measures referred to in Article 3. The Commission will examine the impact of the measures adopted and, on the basis of this mid-term review, propose to the Council, if necessary, any relevant amendments to the quantities to be imported.
2. Before 1 June 2006 the competent Spanish authorities shall submit a report to the Commission on the implementation of the measures referred to in Article 3 after 2004. The Commission will re-examine the impact of the measures adopted and, on the basis of its findings, submit to the Council any relevant proposals for the period after 2006.
Article 6
1. Where the Commission has reasons to believe that the suspensions introduced by this Regulation has led to a deflection of the trade for a specific product it may, after receipt of the opinion of the Customs Code Committee, provisionally repeal the suspension by Commission Regulation for a period not longer than 12 months. Import duties for products for which the suspension has been provisionally repealed shall be secured by a guarantee, and the release of the products concerned for free circulation in the Canary Islands shall be conditional upon the provision of such a guarantee.
2. When the Council decides on a proposal from the Commission within the 12-month period that the suspension should definitively be repealed, the amounts of duties secured by guarantees shall be definitively collected.
3. If no definitive decision has been adopted within the 12-month period in accordance with paragraph 2, the securities shall be released.
Article 7
When necessary the Commission may, by Commission Regulation, after receipt of the opinion of the Customs Code Committee, make such amendments and technical adaptations to Annexes I to IV to this Regulation as are required as a consequence from amendments of the Combined Nomenclature.
Article 8
This Regulation shall enter into force on the third day following that of its publication in the Official Journal of the European Communities.
It shall apply from 1 January 2002.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 25 March 2002. | [
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Commission Directive 2001/7/EC
of 29 January 2001
adapting for the third time to technical progress Council Directive 94/55/EC on the approximation of the laws of the Member States with regard to the transport of dangerous goods by road
(Text with EEA relevance)
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Council Directive 94/55/EC of 21 November 1994 on the approximation of the laws of the Member States with regard to the transport of dangerous goods by road(1), as last amended by European Parliament and Council Directive 2000/61/EC(2), and in particular Article 8 thereof,
Whereas:
(1) The Annexes A and B to Directive 94/55/EC contain the Annexes A and B to the European Agreement concerning the international carriage of dangerous goods by road, usually known as "the ADR" as applicable from 1 July 1999.
(2) The ADR is updated every two years and therefore an amended version will be in force as from 1 July 2001 with a transitory period until 31 December 2002, except of dangerous goods of class 7 (radioactive material), for which the transitory period will end on 31 December 2001.
(3) It is therefore necessary to amend the Annexes to Directive 94/55/EC.
(4) The measures provided for in this Directive are in accordance with the opinion of the Committee on the transport of dangerous goods,
HAS ADOPTED THIS DIRECTIVE:
Article 1
Annexes to Directive 94/55/EC are amended as follows:
1. Annex A is replaced by the following:
"ANNEX A
Provisions of Annex A to the European Agreement concerning the international carriage of dangerous goods by road (ADR) as in force from 1 July 2001, "Member State" being substituted for "Contracting Party"
NB:
The consolidated text of the 2001 version of Annex A to the ADR will be published as soon as the text is available in all the official languages of the Community."
2. Annex B is replaced by the following:
"ANNEX B
Provisions of Annex B to the European Agreement concerning the international carriage of dangerous goods by road (ADR) as in force from 1 July 2001, "Member State" being substituted for "Contracting Party"
NB:
The consolidated text of the 2001 version of Annex B to the ADR will be published as soon as the text is available in all the official languages of the Community."
Article 2
1. Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive concerning dangerous goods of class 7 by 31 December 2001 and concerning dangerous goods of other classes by 31 December 2002 at the latest. They shall forthwith inform the Commission thereof.
When Member States adopt those provisions, they shall contain a reference to this Directive or be accompanied by such a reference on the occasion of their official publication. Member States shall determine how such reference is to be made.
2. Member States shall communicate to the Commission the texts of the provisions of national law which they adopt in the field governed by this Directive.
Article 3
This Directive shall enter into force on the 20th day following its publication in the Official Journal of the European Communities.
Article 4
This Directive is addressed to the Member States.
Done at Brussels, 29 January 2001. | [
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EUROPEAN PARLIAMENT DECISION of 5 April 1995 giving discharge to the Commission in respect of the financial management of the sixth European Development Fund for the 1993 financial year (95/226/EC)
THE EUROPEAN PARLIAMENT,
- having regard to the EC Treaty,
- having regard to the third ACP-EEC Convention (1),
- having regard to the balance sheets and revenue and expenditure accounts of the fifth, sixth and seventh European Development Funds for the 1993 financial year (COM(94) 0365),
- having regard to the report of the Court of Auditors concerning the 1993 financial year and the replies of the institutions (2),
- having regard to special report 2/94 of the Court of Auditors on the import programmes carried out under the sixth European Development Fund (EDF), together with the Commission's replies (3),
- having regard to the Council recommendation of 20 March 1995 (C4-0102/95),
- having regard to the report of the Committee on Budgetary Control and the opinion of the Committee on Development and Cooperation (A4-0060/95),
1. Gives discharge to the Commission in respect of the financial management of the sixth European Development Fund for the 1993 financial year on the basis of the following amounts (4):
TABLE
2. Records its observations in the resolution which forms part of this Decision;
3. Instructs its President to forward this Decision and the resolution containing its observations to the Commission, the Council, the Court of Auditors and European Investment Bank and to have them published in the Official Journal of the European Communities (L series).
The Secretary-General
Enrico VINCI
The President
Klaus HÄNSCH
(1) OJ No L 86, 31. 3. 1986.
(2) OJ No C 327, 24. 11. 1994.
(3) OJ No C 97, 6. 4. 1994.
(4) The figures proposed for discharge in the EDF accounts contain an error for the sixth EDF. The figures used here are corrected accordingly on the basis of the detailed accounts.
RESOLUTION containing the observations which form part of the Decisions giving discharge to the Commission in respect of the financial management of the fifth, sixth and seventh European Development Funds for the 1993 financial year
THE EUROPEAN PARLIAMENT,
- having regard to Articles 137 and 206 of the EC Treaty,
- having regard to Articles 70, 73 and 77 of the Financial Regulations applicable respectively to the fifth, sixth and seventh European Development Funds (EDFs), under which the Commission is required to take all appropriate steps to act on the observations appearing in discharge Decisions,
- having regard to the forthcoming review of the Lomé Convention and the establishment of the eighth European Development Fund,
- having regard to the report of the Committee on Budgetary Control and the opinion of the Committee on Development and Cooperation (A4-0060/95),
General
1. Endorses the basic concept of the EDFs as multilateral development funds, this being the most effective and equitable method for the provisions of long-term structural development aid; notes in this context that the current provisions for the financing of the EDFs do not correspond to this concept, and will not do so until the funds are incorporated within the Community budget;
Budgetary implementation
2. Continues to be concerned at the slow implementation rate of the EDFs particularly in the field of traditional, project-based aid programmes jointly managed with ACP countries;
3. Calls on the Commission to introduce provisions allowing appropriations under national or regional indicative programmes, which remain unused for defined lengths of time following their transfer to subsequent EDFs, to be re-allocated to non-programmable aid programmes;
Administration and management
4. Asks the Commission to review all Financial Regulations applying to the EDFs and, following the budgetization of the EDFs, of the general Community Financial Regulation, to adapt their provisions more closely to the circumstances of the implementation of the EDFs;
5. Calls on the Commission to report to the Parliament in its report on the follow-up to the present discharge Decisions on all the changes made to its EDF financial management and accounting systems as a result of the observations of the Court of Auditors in its 1993 annual report (1);
6. Calls on the Commission, within the context of a process of management decentralization, to delegate decision-making powers and responsibility for defined aspects of financial management to its delegations in ACP countries; asks the Commission in this connection to review its staffing policy in the delegations, and, in any event, to ensure that they are fully staffed;
7. Calls on the Commission, the European Investment Bank and the Court of Auditors to cooperate in carrying out regular and frequent on-the-spot audit checks of operations managed under mandate by the European Investment Bank (EIB);
8. Asks the Court of Auditors to give summary details of all on-the-spot audit visits carried out in preparation of its annual report on EDF expenditure as an annex to the relevant chapter in the annual report;
9. Acknowledges and welcomes the efforts made by the Commission since 1993 to improve its financial management and accounting systems for the EDF and the progress thus made;
10. Recognizes that the Court of Auditors has discovered a certain number of discrepancies in the EDF accounts and notes that the Commission has acknowledged these; expects these errors to be corrected in the 1994 accounts, the legality and regularity of which the Court of Auditors will for the first time be required to certify in its Statement of Assurance;
Structural adjustment
11. Stresses the importance of the respect for democratic practice as a precondition for the provision of assistance under the Structural Adjustment Facility, and the crucial importance of the Community taking all possible action to alleviate the serious adverse social consequences caused by structural reforms;
12. Finds that counterpart funds created under the sixth EDF are not being used in accordance with the Community's stated priorities for the health and education sectors; asks the Commission, in spite of the notable improvements visible in this context in the seventh EDF, to bring to bear its influence with ACP Governments to ensure that the health and eduction sectors are suitably funded by the counterpart funds;
13. Asks the Commission to provide the European Parliament, by 30 September 1995, with a report giving an evaluation of the results achieved so far by the Structural Adjustment Facility, and by the counterpart funds generated by it, including details of the criteria used to carry out that evaluation;
14. Asks the Court of Auditors to include in the relevant chapter of its next annual report an evaluation of the results achieved so far by the Structural Adjustment Facility, including details of the criteria used to carry out that evaluation;
Stabex
15. Expresses its concern over the continuing impasse between the Commission and the ACP States over the question of Stabex finance; asks the Commission to ensure that the ACP States respect their obligations relating to the mutual obligation frameworks; also asks the Commission thoroughly to review the entire operation of the Stabex system within the context of the new EDFs;
EDF finance for UN operations
16. Reaffirms its insistence that EDF funds must only be applied for purposes for which there is a clear legal basis in the Lomé Conventions.
(1) OJ No C 327, 24. 11. 1994. | [
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COMMISSION REGULATION (EC) No 470/94 of 2 March 1994 amending Regulation (EEC) No 536/93 laying down detailed rules on the application of the additional levy on milk and milk products
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Council Regulation (EEC) No 3950/92 of 28 December 1992 establishing an additional levy in the milk and milk products sector (1), as last amended by Regulation (EEC) No 1560/93 (2), and in particular Article 11 thereof,
Whereas Commission Regulation (EEC) No 536/93 of 9 March 1993 (3), as amended by Regulation (EEC) No 1756/93 (4), lays down detailed rules on the application of the additional levy, and in particular Article 2 thereof lays down a representative fat content of milk which is associated with the individual reference quantity;
Whereas, in the event of application of Article 4 (2) of Regulation (EEC) No 3950/92, which authorizes at a duly justified application, the transfer of reference quantities for direct sales to deliveries, Article 2 (1) (a) and (b) of Regulation (EEC) No 536/93 distinguish between cases of an increase in a reference quantity from cases where the reference quantity for deliveries is established; whereas, in particular, the representative fat content of milk remains unchanged where there is an increase in the reference quantity for deliveries following a transfer of the reference quantity for direct sales; whereas the difference between the cases of increases in the reference quantity and cases where it is established was laid down for the benefit of producers in order to take better account of their individual situations; whereas applications received by the Member States show that some producers hope to take advantage of the way the regulations are worded; whereas the real situation of producers should be referred to for the purposes of applying those provisions;
Whereas, even if the Member State is able, pursuant to Article 4 (2) of Regulation (EEC) No 3950/92, to rule out unjustified applications, it appears advisable, in order to make it clearly impossible for producers to draw undue benefit from the regulations and thus avoid overloading the national authorities responsible for considering the merits of applications, to apply one and the same standard rule for the fat content whether a reference quantity is increased or is established following a transfer; whereas, however, in the interests of the producers concerned, producers who continue to be engaged in direct sales should be able to continue to benefit from the present provisions;
Whereas, for the same reasons as above, experience gained also shows the need to amend the rules governing the representative fat content of milk for producers who have recently set up in farming;
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
The second subparagraph of Article 2 (1) of Regulation (EEC) No 536/93 is hereby replaced by the following:
'Where the individual reference quantity is changed, the following provisions shall apply:
(a) the representative fat content of milk shall remain unchanged where additional reference quantities are allocated from the national reserve;
(b) where, pursuant to Article 4 (2) of Regulation (EEC) No 3950/92, the reference quantity for deliveries is increased or established, the representative fat content associated with the reference quantity converted into deliveries shall be 3,8 %.
However, the representative fat content of the reference quantity for deliveries shall remain unchanged if the producer provides justification therefor to the satisfaction of the competent authority;
(c) where Articles 6 and 7 and the third, fourth and fifth indents of Article 8 of Regulation (EEC) No 3950/92 are applied, the representative fat content shall be transferred with the reference quantity with which it is associated;
(d) in the cases referred to in the first subparagraph of (b) and (c), the resulting representative fat content shall be equal to the average of the initial and transferred or converted representative contents, weighted by the initial and transferred or converted reference quantities;
(e) in the case of producers whose entire reference quantities come from the national reserve and who have commenced production after 1 April 1992, the representative fat content of their milk shall be the average fat content of milk delivered during the first 12 months of production. However, if the representative content exceeds the average national fat content of milk collected in the Member State during the twelve-month reference period during which they commenced production:
- the producers concerned may not benefit from the negative correction provided for in the second indent of paragraph 2 unless they provide supporting evidence to the contrary,
- where Articles 6 and 7 and the fourth and fifth indents of Article 8 of Regulation (EEC) No 3950/92 are applied, the representative fat content of milk associated with the transferred reference quantity shall be reduced to the abovementioned national average content.'
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 1 April 1994. However, on application by the producer, it shall apply from 1 April 1993.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 2 March 1994. | [
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COMMISSION DECISION of 30 March 1989 approving the plan relating to the examination for residues of substances other than those having a hormonal action submitted by Belgium (Only the French and Dutch texts are authentic) (89/269/EEC)
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Economic Community,
Having regard to Council Directive 86/469/EEC of 16 September 1986 concerning examination of animals and fresh meat for the presence of residues (1), and in particular Article 4 thereof,
Whereas, by letter of 22 June 1988, Belgium sent the Commission a plan setting out the national measures taken on the examination for residues of the substances referred to in Annex I, Groups A.III and B to Directive 86/469/EEC;
Whereas examination of this plan, as modified, has shown that it conforms to the provisions laid down in Directive 86/469/EEC, and in particular Article 4 (1) thereof;
Whereas the measures provided for in this Decision are in accordance with the opinion of the Standing Veterinary Committee,
HAS ADOPTED THIS DECISION:
Article 1 The plan relating to the examination for residues of the substances referred to in Annex I, Groups A.III and B to Directive 86/469/EEC submitted by Belgium is hereby approved.
Article 2 Belgium shall adopt the necessary laws, regulations and administrative provisions for the implementation of the plan referred to in Article 1.
Article 3 This Decision is addressed to the Kingdom of Belgium.
Done at Brussels, 30 March 1989. | [
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COUNCIL REGULATION (EEC) No 3950/92 of 28 December 1992 establishing an additional levy in the milk and milk products sector
THE COUNCIL OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Economic Community, and in particular Article 43 thereof,
Having regard to the proposal from the Commission (1),
Having regard to the opinion of the European Parliament (2),
Whereas, pursuant to Council Regulation (EEC) No 856/84 of 31 March 1984 amending Regulation (EEC) No 804/68 on the common organization of the market in milk and milk products (3), an additional levy scheme was introduced from 2 April 1984 in the said sector; whereas the purpose of this scheme, introduced for nine years and due to expire of 31 March 1993, was to reduce the imbalance between supply and demand on the milk and milk-products market and the resulting structural surpluses; whereas the scheme remains necessary in the future in order to achieve a better market balance; whereas it should therefore continue to be applied for seven further consecutive 12-month periods starting on 1 April 1993;
Whereas, in order to make full use of the experience gained in this area and in the interests of simplification and clarification with a view to ensuring the legal certainty of producers and other parties concerned, the basic rules of the extended scheme should be laid down in a separate regulation, their scope and diversity should be reduced and Council Regulation (EEC) No 2074/92 of 30 June 1992 establishing an additional levy on the milk and milk-products sector (4), adopted as an interim measure by the Council, and Regulation (EEC) No 857/84 of 31 March 1984 laying down general rules for the application of the levy referred to in Article 5c of Regulation (EEC) No 804/68 in the milk and milk-products sector (5), should both be repealed, without prejudice to the obligations and undertakings entered into under the said Regulation;
Whereas the method adopted in 1984, consisting of the application of a levy to quantities of milk collected or sold for direct consumption above a certain guarantee threshold, must be maintained; whereas the said threshold is expressed for each Member State by a guaranteed total quantity which may not be exceeded by the sum of the individually allocated quantities for both deliveries and sales for direct consumption; whereas the quantities are established for the seven periods as from 1 April 1993 and take account of the various factors relating to the scheme in the past;
Whereas in particular, a Community reserve was created at the start of the scheme to take account of the difficulties created for certain Member States by the implementation of a scheme for controlling milk production; whereas the said reserve had been increased several times to meet the special needs of certain Member States and certain producers; whereas in the light of this experience the various parts of the Community reserve should be incorporated into the guaranteed total quantities and the reserve be abolished;
Whereas the Council has decided, in the context of the reform of the common agricultural policy, to take a definitive decision on the level of the total quantities to apply during the first of the two periods of twelve months, in the light, in particular, of a report on the market situation which the Commission will present before each of these periods;
Whereas if any of the total guaranteed quantities is overrun, the consequence for the Member State is that the producers who contributed to the overrun must pay the levy; whereas the levy on deliveries and sales for direct consumption should be fixed at 115 % of the target price for milk; whereas a difference in rates is no longer justified if producers are placed in a comparable position as regards the calculation of the levy;
Whereas, in order to keep the management of the scheme sufficiently flexible, provision should be made for individual overruns to be equalled out over all the individual reference quantities of the same type within the territory of a Member State; whereas in the case of deliveries, which constitute nearly all the quantities marketed, the need to ensure that the levy is fully effective throughout the Community justifies, in principle, continuing to allow Member States the choice between two methods of equalling out overruns of individual reference quantities, bearing in mind the variety of milk production and collection structures; whereas, in this connection, Member States should be authorized not to reallocate unused reference quantities at the end of a period, whether nationally or between purchasers, and to use the amount collected in excess of the levy due for funding national restructuring programmes and/or to refund it to producers of certain categories or producers who find themselves in an exceptional situation;
Whereas, in order to avoid, as in the past, long delays between collection and payment of the levy, which are incompatible with the scheme's objective, provision should be made for the purchaser, who seems in the best position to carry out the necessary operations, to be liable for the levy, and for him to be given the means to collect the levy from the producers who owe it;
Whereas the individual reference quantity should be defined as the quantity available, irrespective of any quantities which may have been transferred temporarily, on 31 March 1993, the expiry date of the nine initial periods of application of the levy scheme; whereas the principles or provisions pursuant to which the said quantity must or may be reduced or increased under the extended scheme should be specified;
Whereas, therefore, under the rules for determining the individual reference quantities, account should be taken of producers who have provisionally received a specific quantity under the scheme in the past;
Whereas it has been agreed that application of the arrangements to control milk production must not jeopardize the restructuring of agricultural holdings in the territory of the former German Democratic Republic; whereas the difficulties encountered make it necessary to extend for a further period the flexibility introduced into those arrangements for that territory, while ensuring that it remains the sole beneficiary;
Whereas reference quantities for deliveries and direct sales should be adapted to reflect economic realities and whereas a producer should therefore be entitled to have a reference quantity increased or established where another is reduced or abolished commensurately, on condition that the request is duly justified by the need to take account of changes in his marketing requirements;
Whereas experience has shown that that implementation of this scheme presupposes the existence of a national reserve to accommodate all those quantities which, for whatever reasons, are not, or are no longer, allocated individually; whereas a Member State may need to have reference quantities available to cater for special situations, determined by objective criteria; whereas it should be authorized, to this end, to top up its national reserve, especially following a linear reduction in all reference quantities;
Whereas the temporary transfer of parts of individual reference quantities in Member States which have authorized this has proven to be an improvement to the scheme; whereas this facility should therefore be extended to all producers; whereas, however, implementation of this principle should not stand in the way of further structural change and adjustment, nor fail to take account of the resulting administrative difficulties;
Whereas when the additional levy system was brought in in 1984, the principle was established that when an undertaking was sold, leased or transferred by inheritance, the corresponding reference quantity was transferred to the purchaser, tenant or heir; whereas this original decision should not be changed; whereas, however, national provisions to safeguard the legitimate interests of the parties should be implemented in all cases of transfer, where the parties are not in agreement;
Whereas, in order to continue restructuring milk production and improving the environment, certain derogations to the principle linking reference quantities to holdings should be extended, and Member States should be authorized to continue implementing national restructuring programmes and to organize some degree of mobility for reference quantities within a given geographical area, on the basis of objective criteria;
Whereas the purpose of the levy provided for in this Regulation is to stabilize the market in milk products; whereas the revenue accruing from this Regulation should therefore be used for financing expenditure in the milk sector,
HAS ADOPTED THIS REGULATION:
Article
1
For seven new consecutive periods of twelve months commencing on 1 April 1993, an additional levy shall be payable by producers of cow's milk on quantities of milk or milk equivalent delivered to a purchaser or sold directly for consumption during the 12-month period in question in excess of a quantity to be determined.
The levy shall be 115 % of the target price for milk.
Article
2
1. The levy shall be payable on all quantities of milk or milk equivalent marketed during the 12-month period in question in excess of the relevant quantity referred to in Article 3. It shall be shared between the producers who contributed to the overrun.
In accordance with a decision of the Member State, the contribution of producers towards the levy payable shall be established, after the unused reference quantities have been reallocated or not, either at the level of the purchaser, in the light of the overrun remaining after unused reference quantities have been allocated in proportion to the reference quantities of each producer, or at national level, in the light of the overrun in the reference quantity of each individual producer.
2. As regards deliveries, before a date and in accordance with detailed rules to be laid down, the purchaser liable for the levy shall pay to the competent body of the Member State the amount payable, which he shall deduct from the price of milk paid to producers who owe the levy or, failing this, collect by any appropriate means.
Whereas a purchaser replaces in whole or in part one or more purchasers, the individual reference quantities available to producers shall be taken into account for the remainder of the twelve-month period in progress, less quantities already delivered and account being taken of their fat content. The same provisions shall apply where a producer transfers from one purchaser to another.
Where quantities delivered by a producer exceed his reference quantity, the purchaser shall be authorized, by way of an advance on the levy payable, in accordance with detailed rules laid down by the Member State, to deduct an amount from the price of the milk in respect of any delivery by that producer in excess of his reference quantity.
3. As regards direct sales, the producer shall pay the levy payable to the competent body of the Member State before a date and in accordance with rules to be laid down.
4. Where the levy is payable and the amount collected is greater than that levy, the Member State may use the excess to finance the measures referred to in the first indent of Article 8 and/or redistribute it to producers who fall within priority categories established by the Member State on the basis of objective criteria to be determined or who are affected by an exceptional situation resulting from a national provision unconnected with this scheme.
Article
3
The sum of the individual reference quantities of the same type may not exceed the corresponding total quantities to be determined for each Member State.
When the Council decides to adjust the abovementioned total quantities to the market situation, the adjustments shall be expressed as a percentage of the total quantities to be met in respect of the preceding period.
Article
4
1. The individual reference quantity available on the holding shall be equal to the quantity available on 31 March 1993 and shall be adjusted, where appropriate, for each of the periods concerned, so that the sum of the individual reference quantities of the same type does not exceed the corresponding global quantities referred to in Article 3, taking account of any reductions made for allocation to the national reserve provided for in Article 5.
2. Individual reference quantities shall be increased or established at the duly justified request of producers to take account of changes affecting their deliveries and/or direct sales. The increase or establishment of such a reference quantity shall be subject to a corresponding reduction or cancellation of the other reference quantity the producer owns. Such adjustments may not lead to an increase in the sum of the deliveries and direct sales referred to in Article 3 for the Member State concerned.
Where the individual reference quantities undergo a definitive change, the quantities referred to in Article 3 shall be adjusted in accordance with the procedure laid down in Article 11.
3. If a producer who has provisionally received a specific individual reference quantity pursuant to the last subparagraph of Article 3a(1) of Regulation (EEC) No 857/84 can prove before 1 July 1993 to the satisfaction of the competent authority that he has actually resumed sales and/or deliveries and that his direct sales and/or his deliveries have in the course of the preceding twelve months reached a level equal to or higher than 80 % of the provisional reference quantity, the specific reference quantity shall be allocated definitively to him. Otherwise, the reference quantity definitively allocated shall be equal to the quantity actually delivered or sold direct.
Actual deliveries and/or direct sales shall be determined in the light of the trend in production on the producer's holding, seasonal conditions and any exceptional circumstances.
4. In the case of agricultural holdings situated in the territory of the former German Democratic Republic, the reference quantity may be allocated provisionally for the period from 1 April 1993 to 31 March 1994, provided that the quantity thus allocated is not modified during that period.
Article
5
Within the quantities referred to in Article 3, the Member State may replenish the national reserve following an across-the-board reduction in all the individual reference quantities in order to grant additional or specific quantities to producers determined in accordance with objective criteria agreed with the Commission.
Without prejudice to Article 6 (1), reference quantities available to producers who have not marketed milk or other milk products for one of the twelve-month periods shall be allocated to the national reserve and may be reallocated in accordance with the first subparagraph. Where the producer resumes production of milk or other milk products within a period to be determined by the Member State, he shall be granted a reference quantity in accordance with Article 4 (1) no later than 1 April following the date of his application.
Article
6
1. Before a date that they shall determine and by 31 December at the latest, Member States shall authorize, for the 12-month period concerned, temporary transfers of individual reference quantities which producers who are entitled thereto do not intend to use. However, the reference quantities referred to in Article 4 (3) may not be the subject of such temporary transfers until 31 March 1995.
Member States may vary transfer operations depending on the category of producers or dairy production structures, may limit them at the level of the purchaser within regions and may determine to what extent transfer operations may be renewed.
2. Any Member State may decide not to implement paragraph 1 on the basis of one or both of the following criteria:
- the need to facilitate structural developments and adjustments,
- overriding administrative needs.
Article
7
1. Reference quantities available on a holding shall be transferred with the holding in the case of sale, lease or transfer by inheritance to the producers taking it over in accordance with detailed rules to be determined by the Member States taking account of the areas used for dairy production or other objective criteria and, where applicable, of any agreement between the parties. Any part of the reference quantity which is not transferred with the holding shall be added to the national reserve.
The same provisions shall apply to other cases of transfers involving comparable legal effects for producers.
However:
(a) until 30 June 1994, the reference quantity referred to in Article 4 (3) shall be added to the national reserve in the case of sale or leasing of the holding;
(b) where land is transferred to public authorities and/or for use in the public interest, or where the transfer is carried out for non-agricultural purposes, Member States shall provide that the measures necessary to protect the legitimate interests of the parties are implemented, and in particular that the departing producer is in a position to continue milk production, if such is his intention.
2. Where there is no agreement between the parties, in the case of rural leases due to expire without any possibility of renewal on similar terms, or in situations involving comparable legal effects, the reference quantities available on the holdings in question shall be transferred in whole or in part to the producers taking them over, in accordance with provisions adopted or to be adopted by the Member States, taking account of the legitimate interests of the parties.
Article
8
With a view to completing restructuring of milk production at national, regional or collection area level, or to environmental improvement, Member States may take one or more of the following actions in accordance with detailed rules which they shall lay down taking account of the legitimate interests of the parties:
- grant compensation in one or more annual instalments to producers who undertake to abandon definitively all or part of their milk production and place the reference quantities thus released in the national reserve,
- determine on the basis of objective criteria the conditions under which producers may obtain, in return for payment, at the beginning of a 12-month period, the reallocation by the competent authority or by the body designated by that authority, of reference quantities released definitively at the end of the preceding twelve-month period by other producers in return for compensation in one or more annual instalments equal to the abovementioned payment,
- provide, in the case of land transferred with a view to improving the environment, for the allocation of the reference quantity available on the holding concerned to the departing producer if he intends continuing milk production,
- determine, on the basis of objective criteria, the regions or collection areas within which the transfer of reference quantities between certain producer categories without transfer of the corresponding land is authorized, with the aim of improving the structure of milk production,
- authorize, upon application by the producer to the competent authority or the body designated by that authority, the transfer of reference quantities without transfer of the corresponding land, or vice versa, with the aim of improving the structure of milk production at the level of the holding or to allow for extensification of production.
However, until 30 June 1994, producers with a reference quantity as referred to in Article 4 (3) may not benefit from the provisions of this Article, with the exception of the third indent.
Article
9
For the purposes of this Regulation:
(a) 'milk` means the produce of the milking of one or more cows;
(b) 'other milk products` means cream, butter and cheese in particular;
(c) 'producer` means a natural or legal person or a group of natural or legal persons farming a holding within the geographical territory of the Community:
- selling milk or other milk products directly to the consumer,
- and/or supplying the purchaser;
(d) 'holding` means all production units operated by the single producer and located within the geographical territory of the Community;
(e) 'purchaser` means an undertaking or grouping which purchases milk or other milk products from a producer:
- to treat or process them,
- to sell them to one or more undertakings treating or processing milk or other milk products.
However, any group of purchasers in the same geographical area which carries out administrative and accounting operations necessary for the payment of the levy on behalf of its members shall be regarded as a purchaser. For the purposes of applying this provision, Greece shall be deemed a single geographical area and it may deem an official body to be a group of purchasers as referred to above;
(f) 'untertaking treating or processing milk or other milk products` means an undertaking or grouping which is involved in collection, packaging, storage, chilling and processing operations or whose dairying activities are restricted to one of those operations;
(g) 'delivery` means any delivery of milk or other milk products, whether the transport is carried out by the producer, a purchaser, an undertaking processing or treating such products or a third party;
(h) 'milk or milk equivalent sold directly for consumption` means milk or milk products converted into milk equivalent, sold or transferred free without going through an undertaking treating or processing milk or other milk products.
Article
10
The levy shall be considered as intervention to stabilize agricultural markets and shall be used to finance expenditure in the milk sector.
Article
11
The detailed rules for the application of this Regulation and in particular the characteristics of milk, including fat content, which are considered representative for the purposes of establishing the quantities of milk delivered or purchased shall be adopted in accordance with the procedure provided for in Article 30 of Regulation (EEC) No 804/68 (1).
Article
12
Regulations (EEC) Nos 857/84 and 2074/92 are hereby repealed.
Article
13
This Regulation shall enter into force on the third day following that of its publication in the Official Journal of the European Communities.
It shall apply from 1 April 1993.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 28 December 1992. | [
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*****
COUNCIL REGULATION (EEC) No 3177/85
of 11 November 1985
on the application of Decision No 1/85 of the EEC-Finland Joint Committee altering the limits expressed in ECU in Article 8 of Protocol 3 concerning the definition of the concept of originating products and methods of administrative cooperation
THE COUNCIL OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Economic Community, and in particular Article 113 thereof,
Having regard to the proposal from the Commission,
Whereas the Agreement between the European Economic Community and the Republic of Finland (1), signed on 5 October 1973, entered into force on 1 January 1974;
Whereas by virtue of Article 28 of Protocol 3 concerning the definition of the concept of originating products and methods of administrative cooperation, which forms an integral part of the said Agreement, the Joint Committee adopted Decision No 1/85 further amending Article 8 of that Protocol;
Whereas it is necessary to apply that Decision in the Community,
HAS ADOPTED THIS REGULATION:
Article 1
Decision No 1/85 of the EEC-Finland Joint Committee shall apply in the Community.
The text of the Decision is attached to this Regulation.
Article 2
This Regulation shall enter into force on the third day following its publication in the Official Journal of the European Communities.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 11 November 1985. | [
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COMMISSION DECISION of 11 December 1992 concerning additional guarantees relating to Aujeszky's disease for pigs destined to Member States or regions free of the disease
(93/24/EEC)THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Economic Community,
Having regard to Council Directive 64/432/EEC (1) of 26 June 1964 on animal health problems affecting intra-community trade in bovine animals and swine, as last amended by Directive 92/65/EEC (2), and in particular Article 10 thereof,
Whereas certain Member States consider their territory or part of their territory is free from Aujeszky's disease and have submitted supporting documentation to the Commission as provided for in Article 10 of Directive 64/432/EEC;
Whereas an eradication programme was undertaken in these Member States or regions for Aujeszky's disease;
Whereas Member States have employed either a vaccination or a stamping-out policy to eradicate Aujeszky's disease;
Whereas the programme is regarded to have been successful in eradicating this disease from these Member States or regions of Member States;
Whereas the authorities of these Member States apply for national movement of pigs for breeding and production rules at least equivalent to those foreseen by the present decision;
Whereas these additional guarantees must not be requested from Member States or regions of Member States which are themselves regarded as free from Aujeszky's disease;
Whereas the opinion of the Scientific Veterinary Committee has been obtained;
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
Pigs intended for breeding coming from other Member States or Regions and destined for Member States or regions where vaccination for Aujeszky's disease is not permitted, listed in Annex I must fulfil the following conditions:
1. Aujeszky's disease must be compulsorily notifiable in the Member State of origin;
2. no clinical, pathological or serological evidence of Aujeszky's disease has been recorded in the herd of origin for the past 12 months;
3. if vaccine for Aujeszkys disease has been used on the herd of origin, only a g1 deleted vaccine shall have been used for the past 12 months;
4. isolation in accomodation approved by the competent authority such that no direct or indirect contact with other pigs is possible for 30 days prior to movement;
5. the pigs have not been vaccinated;
6. the pigs must have been subjected to an Elisa test for the presence of g1 antibody which meets the standards in Annex II of this decision, on sera taken at least 21 days after entry into isolation, with negative results. All animals in isolation must also have given negative results to this test. In the case of pigs aged over four months the test used shall be the whole virus Elisa;
7. the pigs must have remained on the herd of origin since birth or the pigs have remained in the consigning herd for three months and in others of equivalent status since birth.
Article 2
Pigs intended for production coming from other Member States or regions and destined for Member States or regions where vaccination for Aujeszky's disease is not permitted, listed in Annex I must fulfil the following conditions:
1. Aujeszky's disease must be compulsorily notifiable in the Member State of origin;
2. no clinical, pathological or serological evidence of Aujeszky's disease has been recorded in the herd or origin for the past 12 months;
3. the pigs have not been vaccinated;
4. (i) no pre-movement testing shall be necessary if the herd of origin is part of an official monitoring programme where at least 15 % of the breeding animals (or 25 animals, whichever is the greater) are tested over the course of each year. Such testing shall be split into at least three approximately equal divisions each separated by at least two months; movement into such herds shall only be from herds of equivalent or superior status and no clinical case of Aujeszky's disease shall have been recorded within 2 km of the herd of origin for the previous 60 days;
(ii) if the herd of origin is not part of such a monitoring programme the pigs must be segregated prior to movement and the pigs must be sampled in accordance with Annex III within 10 days prior to movement and subjected to a test which meets the standards in Annex II. All animals tested must pass the test.
5. The pigs must have remained in the herd of origin since birth or the pigs have remained in the herd or origin for three months and in herds of equivalent status since birth.
Article 3
The animals mentioned in Article 2 shall be transported directly to the farm of destination and shall remain there until slaughter unless otherwise authorized by the competent authority in the Member State of destination. The competent authority of the Member State of destination may require that all pigs on such premises go directly to slaughter.
Article 4
1. Pigs intended for slaughter coming from other Member States or regions and destined for Member States or regions listed in Annex I must be transported directly to the slaughterhouse of destination.
2. If such pigs have been vaccinated, only a g1 deleted vaccine shall have been used.
3. No clinical, pathological or serological evidence of Aujeszky's disease has been recorded in the herd of origin for the past three months.
4. The pigs must have remained in the herd of origin for the previous 60 days or since birth.
5. Aujeszky's disease must be notifiable in the Member State of origin.
Article 5
1. (a) The health certificate provided for in Annex F to Directive 64/432/EEC must be completed by the following for pigs destined for Member States or Regions listed in Annex 1 from other Member States or regions;
'Pigs in accordance with Commission Decision 93/24/EEC of 11 December 1992 concerning Aujeszky's disease. In the case of pigs for breeding the test used was the whole virus Elisa/Elisa for g1 antibodies.
(Delete where applicable)'.
(b) Such pigs must not come into contact with pigs of different status during transit.
2. Member States must ensure that similar requirements also apply for movement within their territory to regions listed in Annex I.
Article 6
In derogation to the above Articles, the additional conditions must not be requested by Member States of destination or regions of destination from Member States or Regions listed in Annex I.
Article 7
This Decision shall be reviewed before 31 December 1994.
Article 8
This Decision shall enter into force on 1 January 1993.
Article 9
This Decision is addressed to the Member States.
Done at Brussels, 11 December 1992. | [
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COUNCIL REGULATION (EC) No 2513/97 of 15 December 1997 extending the definitive anti-dumping duty imposed by Regulation (EC) No 1490/96 on polyester staple fibre originating in Belarus to imports of polyester filament tow from Belarus and levying the extended duty on the latter imports as registered under Commission Regulation (EC) No 693/97
THE COUNCIL OF THE EUROPEAN UNION,
Having regard to the Treaty establishing the European Community,
Having regard to Council Regulation (EC) No 384/96 of 22 December 1995 on protection against dumped imports from countries not members of the European Community (1), and in particular Article 13 (3) thereof,
Having regard to the proposal submitted by the Commission after consulting the Advisory Committee,
Whereas:
A. PROCEDURE
(1) On 19 April 1997, by Regulation (EC) No 693/97 (2), the Commission initiated an investigation, pursuant to Article 13 of Regulation (EC) No 384/96, hereafter referred to as the 'Basic Regulation`, concerning the alleged circumvention of the anti-dumping duties imposed by Council Regulation (EC) No 1490/96 (3) on imports of polyester staple fibre, hereafter 'PSF`, originating in Belarus, by imports of polyester filament tow, hereafter 'PFT`, originating in that country which are subsequently converted into PSF in the Community and directed customs authorities, pursuant to Article 13 (3) of the Basic Regulation, to register imports of such PFT. The present investigation was initiated following a complaint lodged on 4 March 1997 by the International Committee of Rayon and Synthetic Fibres (C.I.F.R.S) on behalf of Community producers whose output is considered to represent over 90 % of the total Community production of PSF.
(2) The product concerned by the present investigation is PFT, falling under CN code 5501 20 00, used for conversion in the Community into PSF, falling under CN code 5503 20 00.
(3) The Commission officially advised the authorities of Belarus about the initiation of the new investigation and sent questionnaires to the Community companies concerned mentioned in the complaint. No additional companies made themselves known within the prescribed time limit.
(4) The new investigation covered the period 1 January 1996 to 31 March 1997 (hereafter 'the investigation period`).
(5) The Commission received complete replies from the following companies:
(a) Germany
- Barnet Europe W. Barnet GmbH & Co. KG,
- Rheinische Faser GmbH,
- Kemokomplex GmbH;
(b) Italy
- SALT & Co. Snc,
- TA.SFI Snc,
- SIMP Srl (formerly CO.FI.S SpA).
The Commission requested and examined all information it deemed necessary and carried out verification visits at the premises of the companies located in Italy and of one company located in Germany (Barnet).
(6) All companies mentioned above made their views known in writing and requested and were granted a hearing by the Commission.
B. SCOPE OF THE INVESTIGATION
(7) Article 13 (1), first sentence, of the Basic Regulation provides that, if certain conditions establishing circumvention are met, anti-dumping measures in force may be extended to imports of like products or parts thereof from a third country.
The scope of the present investigation is to examine whether anti-dumping measures on imports of PSF originating in Belarus are being circumvented by means of imports of PFT originating in that country which are used in conversion operations in the Community.
(8) The importers and converters have argued that the present investigation could not be initiated under Article 13 of the Basic Regulation because an investigation under this provision would only be possible with regard to a 'third country`, which would exclude the exporting country in respect of which the anti-dumping measures were imposed. This argument is rejected because the term 'third country`, as used in Article 13 (1) of the Basic Regulation is, also in view of its legislative history, a broad term which simply refers to any country outside the Community as opposed to trade between two or more Member States of the Community.
(9) It was considered that the alleged circumvention practice had to be assessed on the basis of the second sentence of Article 13 (1) of the Basic Regulation. The objective of the present investigation was in particular to examine whether the operation described above fulfilled all conditions set out in that provision, so that anti-dumping measures in force with respect to PSF could be extended to PFT pursuant to Article 13 (1), first sentence of the Basic Regulation.
In this respect, it should be noted that PFT and PSF share the same basic physical and chemical characteristics. Indeed, the only difference between PFT and PSF results from a simple cutting process. The imported PFT has therefore to be viewed as a product which has been slightly altered in order to avoid the anti-dumping measures currently applicable to PSF. Differences of this nature, which can be created or eliminated by minor alterations, cannot put into question the fact that PSF and PFT are essentially the same product. Such differences are therefore not sufficient to avoid payment of anti-dumping duties on PFT. As far as the uses of PFT and PSF are concerned, the investigation has also shown that all PFT imported from Belarus was used for cutting into PSF rather than for worsted spinning to produce tops, the other recognized application of PFT. Worsted spinning is a considerably more complex process requiring special technology. Tops are sold in a small and relatively stable niche market commanding a price premium.
In any event, it should be borne in mind that, as in the case of parts destined for assembly, the imports of PFT ultimately end up as a product which is not only alike but identical to the imports subject to the original investigation, i.e. PSF. Thus, although the alteration process from PFT into PSF is not as such an assembly operation, it is of such a nature that it has to be considered as a practice which is carried out to avoid the measures in force.
It follows from the foregoing that PFT and PSF are alike within the meaning of Article 1 (4) of the Basic Regulation.
C. RESULTS
1. Nature of the circumvention operation
(10) The present investigation has established that all the PFT concerned is produced by a single company in Belarus and exported to the Community mainly via two channels. A first channel involves a German trader which purchases the PFT from the Belarus exporter and sells it, for the major part, to an Italian importer. The PFT thus imported is subsequently processed into PSF by Italian sub-contractors and thereafter sold by the Italian importer in the Community, mainly on the Italian market. A second channel involves a Swiss trader which sells the PFT it purchases from the Belarus exporter to a German importer. The German importer itself processes the PFT into PSF and sells the PSF in the Community, mainly on the German market.
(11) The question as to whether Belarus can be considered as a 'third country` in terms of Article 13 (1) of the Basic Regulation has already been addressed in recital 8. The question of whether PSF and PFT can be considered to be like products has been addressed in recital 9.
2. Conditions of Article 13 (1), second sentence
(a) Circumvention
- Change in the pattern of trade
(12) Immediately following the imposition in March 1996 of a provisional anti-dumping duty of 43,5 % on PSF originating in Belarus by Commission Regulation (EC) No 394/96 (4), imports of PSF from Belarus were almost entirely substituted by imports of PFT from that country. While in the period subsequent to the initiation of the original anti-dumping proceeding (August 1994) PFT imports from Belarus only represented at most 1 % of combined PFT-PSF imports from that country, the PFT-PSF mix changed radically and abruptly immediately following the imposition of provisional anti-dumping measures in March 1996: in the period April to June 1996, PSF accounted for only 3,02 % while PFT represented 96,98 %. This marked change in the pattern of trade continued and even increased throughout the entire 15-month investigation period as volumes of PFT were increasing rapidly and PSF imports were further phased out. At the end of the investigation period (period January-March 1997), PFT accounted for 99,27 % and PSF merely for 0,73 % of the PSF-PFT mix.
In addition, import levels of PFT from Belarus as such increased rapidly and reached significant levels. While imports of PFT from Belarus in 1995 amounted to merely 169 tonnes, such imports rose to 13 619 tonnes in the 12-month period following the imposition of the provisional anti-dumping measures on PSF from Belarus.
The companies involved have argued that no change in the pattern of trade occurred because PFT imports have not substituted for imports of PSF at the same import levels of PSF in 1994 and 1995. This argument is to be rejected. It is not required that the substitution is found to have attained the highest import levels which the substituted product ever reached in a particular segment in the benchmark period - i.e. since or just prior to the initiation of the original anti-dumping proceeding (August 1994) - provided, as was found to be the case in the present investigation, that there is a clear and consistent trend of substitution over an extended period. In this respect, it should be noted that a particularly long investigation period of 15 months was deliberately selected so as to increase its representativity.
- Insufficient due cause or economic justification
(13) The abovementioned substitution of PSF by PFT following the imposition of a significant provisional anti-dumping duty (see recital 12) must reasonably be considered to have stemmed from the anti-dumping measures rather than from any other sufficient due cause or economic justification within the meaning of Article 13 (1), second sentence of the Basic Regulation.
If there were to exist a sufficient due cause or economic justification - other than the anti-dumping measures in force - for importing PFT and cutting it into PSF in the Community rather than directly importing PSF already cut in the exporting country, then it might be expected that at least some PFT would have been imported for conversion in the Community prior to the imposition of the provisional measures. However, as imports of PFT originating in Belarus prior to the imposition of the provisional measures were negligible, it must be concluded that the substitution of PSF by PFT and the strong increase of PFT imports stem from a practice lacking sufficient due cause or economic justification and were in fact primarily prompted by the imposition of anti-dumping measures.
This inference would be displaced if a new significant factor - other than the anti-dumping measures - arising around the time when the substitution took place, could be identified. Such is not the case and no interested party has put forward any such claim.
(14) This conclusion is corroborated by the following findings. Importing PFT for conversion in the Community into PSF, as opposed to directly importing PSF already cut in a continuous, integrated operation - as is standard practice - in the exporting country, generates a number of extra costs in terms of packaging and labour which are not offset by any significant cost savings or price premiums but which are even compounded by the higher hourly labour cost in the Community, if compared with that in Taiwan, selected in the original investigation as analogue country to calculate normal value. In addition, exports of PFT were found to be targeting the Community since other export markets continued to be supplied with PSF by the Belarus exporter concerned, which shows a lack of economic justification because, if the practice were economically justified, it might reasonably be expected that it would also have occurred in other industrialized markets similar to the Community.
(15) The importers and converters have argued that there is sufficient due cause or economic justification for the importation for conversion in the Community of PFT rather than direct importation of PSF already cut in the exporting country because this entails certain cost savings in terms of stock keeping and allows for greater flexibility to meet customer demand for various sizes and small orders of PSF.
(16) This argument was rejected as such benefits were not quantified by the importers and even if such benefits do exist, they would appear not to outweigh the additional cost in terms of packaging and labour referred to above. In any event, such alleged benefits would also have existed prior to the imposition of the anti-dumping measures and, if significant, it could reasonably be expected that some operators in the Community or in other comparable markets would have availed themselves, at least to some extent, of this opportunity prior to the imposition of the anti-dumping measures. As this was found not to be the case (PFT imports from Belarus prior to the imposition of the provisional anti-dumping measures were statistically negligible), it must be concluded that the benefits claimed are, at most, of secondary importance only.
(17) The converters and importers also submitted that it was economically justifiable for them to convert PFT imported from Belarus since the necessary cutting capacity did already exist in the Community so that no special, new investments were required (absence of 'opportunity cost`). It was also argued that the fact that PFT from sources other than Belarus was converted prior to the initiation of the anti-dumping investigation showed that importation of PFT from Belarus for conversion in the Community was also justifiable. This argument was rejected for the following reasons.
Except for a limited trial production during the first three months of 1996, the particular circumvention practice under investigation (importation of PFT from Belarus for conversion into PSF in the Community) only began after the imposition of the provisional anti-dumping measures in March 1996. It follows that it can reasonably be concluded that prior to the imposition of the anti-dumping measures it was not considered justifiable to use this cutting capacity to convert PFT imported from Belarus rather than directly importing PSF.
In addition, imports of PFT from countries other than Belarus have been small and even declining. It would also appear that such imports concern, to a large extent, PFT used to produce tops - which, as stated above (see recital 9) is a stable and small niche market requiring more complex processing and commanding a price premium - rather than PFT for cutting into PSF, which is a commodity product. In this respect, it should be noted that imports of PFT from other countries remained stable but were dwarfed in relative terms by the massive influx of PFT from Belarus which in itself accounted for 70 % of all PFT imports in 1996.
In any event, the argument is factually flawed since it was established during the verifications that at least one converter in Italy specifically invested in additional cutting equipment in order to meet growing supplies of PFT from Belarus. This contradicts the alleged absence of opportunity cost mentioned above.
(b) Undermining of the remedial effects of the duty and evidence of dumping
- Undermining
(18) The Commission first determined whether the remedial effects of the duty are being undermined in terms of prices. To that end, a comparison was made between the average sales price in the Community of PSF cut from PFT originating in Belarus during the investigation period, and the 'undumped` export price to the Community of PSF originating from Belarus as established in the original investigation period.
The 'undumped` export price of PSF was calculated at a CIF Community border level on the basis of the export price as established in the initial investigation. To this price customs duties (5,5 %) and anti-dumping duties (43,5 %) were added to arrive at an 'undumped` level.
A weighted average price ex-converter was determined for PSF cut from PFT originating in Belarus. Adjustments to this price ('netting back`) were made in order to ensure that a comparison was established at the same level (CIF Community border). To this aim, discounts, selling, general and administrative (SG& A) and intra-Community transport costs (not included in SG& A) were deducted. Subsequently, it was established to what extent the average price of PSF converted from PFT originating in Belarus has undercut the 'undumped` export price thus undermining the remedial effects of the duties.
The total undermining amounts were expressed as a percentage of the total CIF Community border value of imports of PSF at the 'undumped` price level. The comparison showed that the average sales price of PSF converted from PFT originating in Belarus has undercut the 'undumped` export price of PSF imported from Belarus by 19,45 %.
The Commission has also verified whether the remedial effects of the duty are being undermined in terms of quantities. As explained in detail above (see recital 12), PSF imports from Belarus were nearly totally substituted by imports of PFT from that country immediately after imposition of provisional anti-dumping duties on PSF from Belarus.
In the light of the foregoing, it must be concluded that the sales of PSF converted from PFT originating in Belarus have undermined the remedial effect of the anti-dumping duties both in terms of prices and quantities.
- Evidence of Dumping
(19) In order to determine whether evidence of dumping could be found with respect to the PFT imported in the Community for conversion into PSF during the investigation period, the following methodology was followed.
Delivered duty unpaid purchase prices charged to the importers for PFT from Belarus were used as a point of departure. In order to increase the comparability of this price with the normal value established for PSF during the original anti-dumping investigation, the conversion cost in the Community established in the present investigation was added so as to effectively construct a PSF price. From this price, intra-Community freight/handling costs and credit costs were then deducted to calculate a CIF Community border price for PSF.
This CIF price was then netted back to FOB Belarus level by deducting freight and handling cost from Belarus to the Community border and by deducting the respective mark-up of intermediary trading houses. The difference between this FOB Belarus price and the FOB Taiwan normal value as established in the original anti-dumping investigation - Taiwan having been selected in the original investigation as analogue country to calculate normal value - was then expressed as a percentage of the CIF Community border price for PSF.
The aggregated, weighted average dumping margin thus established was found to be 12,31 %. It is therefore concluded that there is evidence of dumping in relation to the normal value previously established.
D. PROPOSED MEASURES
1. Nature of the measures: extension of the duty
(20) In view of the above findings and considerations, the anti-dumping duty in force with respect to PSF originating in Belarus should be extended to PFT originating in that country.
2. Levy of the extended duty on imports entered under registration
(21) The extended duty should be levied on the PFT which entered the Community under registration, as described in recital 1.
E. PROCEDURE
(22) Interested parties were informed of the essential facts and considerations on the basis of which the Commission intended to propose the extension of the definitive anti-dumping duty in force to the PFT concerned and have been given the opportunity to comment and their comments have been duly considered,
HAS ADOPTED THIS REGULATION:
Article 1
1. The definitive anti-dumping duty imposed by Regulation (EC) No 1490/96 on imports of polyester staple fibre falling within CN code 5503 20 00 originating in Belarus is hereby extended to imports of polyester filament tow falling within CN code 5501 20 00 originating in Belarus.
2. The duty extended by paragraph 1 of this Article shall also apply to imports of polyester filament tow originating in Belarus which have been registered in accordance with Article 2 of Commission Regulation (CE) No 693/97 and Article 13 (3) and 14 (5) of Regulation (CE) No 384/96.
Article 2
Customs authorities are hereby directed to discontinue registration of polyester filament tow originating in Belarus and falling within CN code 5501 20 00 pursuant to Article 2 of Commission Regulation (EC) No 693/97.
Article 3
This Regulation shall enter into force on the day following its publication in the Official Journal of the European Communities.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 15 December 1997. | [
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COUNCIL REGULATION (EC) No 3684/93 of 20 December 1993 laying down for 1994 certain measures for the conservation and management of fishery resources applicable to vessels flying the flag of Estonia
THE COUNCIL OF THE EUROPEAN UNION,
Having regard to the Treaty establishing the European Community,
Having regard to Council Regulation (EEC) No 3760/92 of 20 December 1992 establishing a Community system for fisheries and aquaculture(1) , and in particular Article 8 (4) thereof,
Having regard to the proposal from the Commission,
Whereas, in accordance with the procedure provided for in the Agreement on fisheries relations between the European Economic Community and the Republic of Estonia(2) , and in particular Articles 3 and 6 thereof, the Community and Estonia have held consultations concerning their mutual fishing rights for 1994 and the management of common living resources;
Whereas, in the course of these consultations, the delegations agreed to recommend to their respective authorities that certain catch quotas for 1994 should be fixed for the vessels of the other Party;
Whereas the necessary measures should be taken to implement, for 1994, the results of the consultations held between the delegations of the Community and Estonia;
Whereas it is for the Council to lay down the specific conditions under which catches by vessels flying the flag of Estonia must be taken;
Whereas the fishing activities covered by this Regulation are subject to the control measures provided for by Council Regulation No 2847/93 of 12 October 1993 establishing a control system applicable to the common fisheries policy(3) ;
Whereas Article 3 (2) of Commission Regulation (EEC) No 1381/87 of 20 May 1987 establishing detailed rules concerning the marking and documentation of fishing vessels(4) provides that all vessels with chilled or refrigerated sea-water tanks are to keep on board a document certified by a competent authority and indicating the calibration of the tanks in cubic metres at 10-centimetre intervals,
HAS ADOPTED THIS REGULATION:
Article 1
1. From 1 January to 31 December 1994, vessels flying the flag of Estonia are hereby authorized to fish for the species listed in Annex I, within the geographical and quantitative limits laid down therein and in accordance with this Regulation, in the 200-nautical-mile fishing zone of the Member States in the Baltic Sea.
2. Fishing authorized under paragraph 1 shall be limited to those parts of the 200-nautical-mile fishing zone lying seawards of 12-nautical-miles from the baselines from which the fishing zones of Member States are measured.
3. Notwithstanding paragraph 1, unavoidable by-catches of a species for which no quota is established in a zone shall be permitted within the limits fixed in the conservation measures in force in the zone concerned.
4. By-catches in a given zone of a species for which a quota is established in that zone shall be counted against the quota concerned.
Article 2
1. Vessels fishing within the quotas fixed in Article 1 shall comply with the conservation and control measures and all other provisions governing fishing in the zones referred to in that Article.
2. The vessels referred to in paragraph 1 shall keep a log-book in which the information set out in Annex II shall be entered.
3. The vessels referred to in paragraph 1 shall transmit to the Commission, in accordance with the rules laid down in Annex III, the information set out in that Annex.
4. Those vessels referred to in paragraph 1 which have chilled or refrigerated sea-water tanks shall keep on board a document certified by a competent authority and indicating the calibration of the tanks in cubic metres at 10-centimetre intervals.
5. The registration letters and numbers of the vessels referred to in paragraph 1 must be clearly marked on the bow of each vessel on both sides.
Article 3
1. Fishing within ICES sub-area III division d under the quotas fixed in Article 1 shall be permitted only where a licence has been issued by the Commission on behalf of the Community at the request of the Estonian authorities and in compliance with the conditions set out in Annexes II and III. Copies of these Annexes and the licence shall be kept on board of each vessel.
The vessels to be licensed for fishing in the Community zone during a given month will be notified at the latest by the tenth day of the preceding month. The Community shall process expeditiously requests for adjustments to a monthly list during its currency.
2. Licences shall be issued for the purposes of paragraph 1 provided that the number of licences valid at any time during a given month does not exceed:
- 20 for the fishing of cod,
- 12 for the fishing of herring and sprat.
Only fishing vessels under 40 metres will be authorized.
3. When an application for a licence is submitted to the Commission, the following information must be supplied:
(a) name of vessel;
(b) registration number;
(c) external identification letters and numbers;
(d) port of registration;
(e) name and address of the owner or charterer;
(f) gross tonnage and overall length;
(g) engine power;
(h) call sign and radio frequency;
(i) intended method of fishing;
(j) intended area of fishing;
(k) species for which it is intended to fish;
(l) period for which a licence is requested.
4. Each licence shall be valid for one vessel only. Where two or more vessels are taking part in the same fishing operation, each vessel must be in possession of a licence.
5. Licences may be cancelled with a view to the issue of new licences. Such cancellations shall take effect on the day before the date of issue of the new licences by the Commission. New licences shall take effect from their date of issue.
6. Licences shall be wholly or partially withdrawn before the date of expiry if the respective quotas fixed in Article 1 have been exhausted.
7. Licences shall be withdrawn in the event of any failure to meet the obligations laid down in this Regulation.
8. For a period not exceeding 12 months, no licence shall be issued for any vessel in respect of which the obligations laid down in this Regulation have not been met.
9. Vessels authorized to fish on 31 December may continue fishing as from the beginning of next year until the lists of vessels permitted to fish during the year in question are submitted to and approved by the Commission on behalf of the Community.
Article 4
Where an infringement is duly found to have taken place, the Member States shall without delay inform the Commission of the name of the vessel concerned and of any action they have taken.
The Commission shall submit, on behalf of the Community, to Estonia the names and characteristics of the Estonian vessels which will not be authorized to fish in the Community's fishing zone for the next month(s) as a consequence of an infringement of Community rules.
Article 5
This Regulation shall enter into force on 1 January 1994.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 20 December 1993. | [
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COMMISSION DECISION of 13 December 1991 on the establishment of an addendum to the Community support framework for Community structural assistance in Italy (Abruzzo, Basilicata, Calabria, Campania, Molise, Puglia, Sardinia and Sicily) on the improvement of the conditions under which agricultural products are processed and marketed (Only the Italian text is authentic) (92/84/EEC)
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Economic Community,
Having regard to Council Regulation (EEC) No 2052/88 of 24 June 1988 on the tasks of the Structural Funds and their effectiveness and on coordination of their activities between themselves and with the operations of the European Investment Bank and the other existing financial instruments (1), and in particular Article 8 (5) thereof,
After consultation of the Committee for the development and reconversion of regions,
Whereas the Commission has approved by Decision 89/638/EEC (2) the Community support framework for structural assistance in Italy (Abruzzi, Basilicata, Calabria, Campania, Molise, Puglia, Sardinia and Sicily);
Whereas the Italian Government submitted to the Commission during the period April/July 1991 14 sectoral plans on the modernization of the conditions under which agricultural products are processed and marketed referred to in Article 2 of Council Regulation (EEC) No 866/90 of 29 March 1990 on the improvement of the conditions under which agricultural products are processed and marketed (3), as amended by Regulation (EEC) No 3577/90 (4);
Whereas the plans submitted by the Member State include descriptions of the main priorities selected and indications of the use to be made of assistance under the European Agricultural Guidance and Guarantee Fund (EAGGF), Guidance Section in implementing the plans;
Whereas measures falling within the scope of Regulation (EEC) No 866/90 may be taken into consideration by the Commission when establishing the Community support frameworks for areas covered by Objective 1 as provided for in Title III of Regulation (EEC) No 2052/88;
Whereas this addendum to the Community support framework has been established in agreement with the Member State concerned through the partnership defined in Article 4 of Regulation (EEC) No 2052/88;
Whereas all measures which constitute the addendum are in conformity with Commission Decision 90/342/EEC of 7 June 1990 on the selection criteria to be adopted for investments for improving the processing and marketing conditions for agricultural and forestry products (5);
Whereas the Commission is prepared to examine the possibility of the other Community lending instruments contributing to the financing of this addendum in accordance with the specific provisions governing them;
Whereas in accordance with Article 10 (2) of Council Regulation (EEC) No 4253/88 of 19 December 1988, laying down provisions for implementing Regulation (EEC) No 2052/88 as regards coordination of the activities of the different Structural Funds between themselves and with the operations of the European Investment Bank and the others existing financial Instruments (6), this Decision is to be sent as a declaration of intent to the Member State;
Whereas in accordance with Article 20 (1) and (2) of Regulation (EEC) No 4253/88 budgetary commitments relating to the contribution from the Structural Funds to the financing of the operations covered by the Community support framework will be made on the basis of subsequent Commission decisions approving the operations concerned;
Whereas the measures provided for in this Decision are in accordance with the opinion of the Committee for Agricultural Structures and Rural Development,
HAS ADOPTED THIS DECISION:
Article 1
The addendum to the Community support framework for Community structural assistance on the improvement of the conditions under which agricultural products are processed and marketed in Italy (Abruzzo, Basilicata, Calabria, Campania, Molise, Puglia, Sardinia and Sicily) covering the period from 1 January 1991 to 31 December 1993 is hereby established.
The Commission declares that it intends to contribute to the implementation of this addendum to the Community support framework in accordance with the detailed provisions thereof and in compliance with the rules and guidelines of the Structural Funds and the other existing financial instruments.
Article 2
The addendum to the Community support framework contains the following essential information:
(a) a statement of the main priorities for joint action in the following sectors:
1. meat;
2. milk and milk products;
3. diverse livestock: honey;
4. cereals: durum wheat;
5. oil-producing plants: olive oil;
6. protein producing crops;
7. wine;
8. fruit and vegetables;
9. flowers and plants;
10. seeds;
11. diverse vegetables: pharmaceutical plants;
12. diverse vegetables: mushrooms;
13. markets;
14. animal feed;
(b) an indicative financing plan specifying, at constant 1991 prices, the total cost of the priorities adopted for joint action by the Community and the Member State concerned, ECU 93 500 000 for the whole period, and the financial arrangements envisaged for budgetary assistance from the Community, broken down as follows:
(ecus)
1. meat 3 600 000 2. milk and milk products 2 425 000 3. diverse animals: honey 275 000 4. cereals: durum wheat 7 450 000 5. oil-producing plants: olive oil 4 400 000 6. protein producing plants 700 000 7. wine 3 500 000 8. fruit and vegetables 18 000 000 9. flowers and plants 1 500 000 10. seeds 950 000 11. diverse vegetables: pharmaceutical
plants 700 000 12. diverse vegetables: mushrooms 700 000 13. markets 1 150 000 14. animal feeding 1 400 000 Total 46 750 000
The resultant national financing requirement, approximately ECU 23 375 000 for the public sector and ECU 23 375 000 for the private sector, may be partially covered by Community loans from the European Investment Bank and the other loan instruments.
Article 3
This declaration of intent is addressed to the Italian Republic. Done at Brussels, 13 December 1991. | [
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*****
COMMISSION DECISION
of 13 July 1982
establishing that the apparatus described as 'Searle - Automatic Planchet Counter, model 1152' may not be imported free of Common Customs Tariff duties
(82/509/EEC)
THE COMMISSION OF THE EUROPEAN
COMMUNITIES,
Having regard to the Treaty establishing the European Economic Community,
Having regard to Council Regulation (EEC) No 1798/75 of 10 July 1975 on the importation free of Common Customs Tariff duties of educational, scientific and cultural materials (1), as amended by Regulation (EEC) No 1027/79 (2),
Having regard to Commission Regulation (EEC) No 2784/79 of 12 December 1979 laying down provisions for the implementation of Regulation (EEC) No 1798/75 (3), and in particular Article 7 thereof,
Whereas, by letter dated 6 January 1982, Belgium has requested the Commission to invoke the procedure provided for in Article 7 of Regulation (EEC) No 2784/79 in order to determine whether or not the apparatus described as 'Searle - Automatic Planchet Counter, model 1152', ordered on 25 February 1980 and in particularly to be used for the study of nitrogen redistribution in roots during the development of winter wheat and for the location of phosphorous transfers in the digestive tract of the sheep, should be considered as a scientific apparatus and, where the reply is in the affirmative, whether apparatus of equivalent scientific value is currently being manufactured in the Community;
Whereas, in accordance with the provisions of Article 7 (5) of Regulation (EEC) No 2784/79, a group of experts composed of representatives of all the Member States met on 14 May 1982 within the framework of the Committee on Duty-Free Arrangements to examine the matter;
Whereas this examination showed that the apparatus in question is a liquid scintillation counter; whereas it does not have the requisite objective characteristics making it specifically suited to scientific research; whereas, moreover, apparatus of the same kind are principally used for non-scientific activities; whereas its use in the case in question could not alone confer upon it the character of a scientific apparatus; whereas it therefore cannot be regarded as a scientific apparatus; whereas the duty-free admission of the apparatus in question is therefore not justified,
HAS ADOPTED THIS DECISION:
Article 1
The apparatus described as 'Searle - Automatic Planchet Counter, model 1152', which is the subject of an application by Belgium of 6 January 1982, may not be imported free of Common Customs Tariff duties.
Article 2
This Decision is addressed to the Member States.
Done at Brussels, 13 July 1982. | [
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COMMISSION REGULATION (EC) No 1732/96 of 4 September 1996 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 amended by Regulation (EEC) No 2454/93 (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, as last amended by Regulation (EC) No 1676/96 (3), and in particular Article 173 (1) thereof,
Whereas Articles 173 to 177 of Regulation (EEC) No 2454/93 provide that the Commission shall periodically establish unit values for the products referred to in the classification in Annex 26 to that Regulation;
Whereas the result of applying the rules and criteria laid down in the abovementioned Articles to the elements communicated to the Commission in accordance with Article 173 (2) of Regulation (EEC) No 2454/93 is that unit values set out in the Annex to this Regulation should be established in regard to the products in question,
HAS ADOPTED THIS REGULATION:
Article 1
The unit values provided for in Article 173 (1) of Regulation (EEC) No 2454/93 are hereby established as set out in the table in the Annex hereto.
Article 2
This Regulation shall enter into force on 6 September 1996.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 4 September 1996. | [
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Commission Regulation (EC) No 1045/2003
of 18 June 2003
derogating from Regulation (EC) No 708/98 on the taking over of paddy rice by the intervention agencies and fixing the corrective amounts and the price increases and reductions to be applied as regards the time limit for delivery into intervention for the 2002/03 marketing year
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) The conditions governing the taking over of paddy rice by the intervention agencies are laid down in Commission Regulation (EC) No 708/98(3), as last amended by Regulation (EC) No 610/2001(4). Article 6(1) of that Regulation stipulates that delivery must take place by the end of the second month following receipt of the offer and in any case not later than 31 August of the current marketing year.
(2) As a result of the exceptionally large quantities of paddy rice currently offered for buying in, it is difficult for the intervention agencies to meet the time limit for the delivery of the products. This situation justifies a derogation, for the 2002/03 marketing year, from the time limit requiring delivery by the end of the second month.
(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
Notwithstanding Article 6(1) of Regulation (EC) No 708/98, the delivery of paddy rice for taking over by the intervention agency in respect of the 2002/03 marketing year must take place no later than 31 August 2003.
Article 2
This Regulation shall enter into force on the third day following its publication in the Official Journal of the European Union.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 18 June 2003. | [
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Commission Directive 2000/81/EC
of 18 December 2000
amending the Annexes to Council Directives 86/362/EEC, 86/363/EEC and 90/642/EEC on the fixing of maximum levels for pesticide residues in and on cereals, foodstuffs of animal origin and certain products of plant origin, including fruit and vegetables, respectively
(Text with EEA relevance)
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Council Directive 86/362/EEC of 24 July 1986 on the fixing of maximum levels for pesticide residues in and on cereals(1), as last amended by Directive 2000/58/EC(2), and in particular Article 10 thereof,
Having regard to Council Directive 86/363/EEC of 24 July 1986 on the fixing of maximum levels for pesticide residues in and on foodstuffs of animal origin(3), as last amended by Directive 2000/58/EC, and in particular Article 10 thereof,
Having regard to Council Directive 90/642/EEC of 27 November 1990 on fixing of maximum levels for pesticide residues in and on certain products of plant origin including fruit and vegetables(4), as last amended by Directive 2000/58/EC, and in particular Article 7 thereof,
Having regard to Council Directive 91/414/EEC of 15 July 1991 concerning the placing of plant protection products on the market(5), as last amended by Commission Directive 2000/68/EC(6), and in particular Article 4(1)(f) thereof,
Whereas:
(1) The new active substance, spiroxamine, was included in Annex I to Directive 91/414/EEC by Commission Directive 1999/73/EC(7) for use as fungicide only, without specifying particular conditions having an impact on crops which may be treated with plant protection products containing spiroxamine.
(2) The said inclusion in Annex I was based on assessment of the information submitted concerning proposed use as fungicide on cereals and vines. Information relating to uses on cereals and vines has been submitted by certain Member States in accordance with the requirements of Article 4(1)(f) of Directive 91/414/EEC. The information available has been reviewed and is sufficient to fix certain maximum residue levels.
(3) Where no Community maximum residue level or provisional MRL exists Member States shall establish a national provisional maximum residue level in accordance with Article 4(1)(f) of Directive 91/414/EEC before the authorisation may be granted.
(4) At the inclusion in Annex I to Directive 91/414/EEC the technical and scientific evaluation of spiroxamine has been finalised on 12 May 1999 in the format of the Commission review report for spiroxamine. In this review report the acceptable daily intake (ADI) for spiroxamine was set at 0,025 mg/kg bw/day. The lifetime exposure of consumers of food products treated with spiroxamine has been assessed and evaluated in accordance with the procedures and practices used within the European Community, taking account of guidelines published by the World Health Organisation(8) and it has been calculated that the maximum residue levels fixed in this Directive do not give rise to an exceedence of this ADI.
(5) Acute toxic effects requiring the setting of an acute reference dose were not noted during the evaluation and discussion that preceded the inclusion of spiroxamine in Annex I to Directive 91/414/EEC.
(6) For certain agricultural products the use conditions for spiroxamine were already defined in a manner which permits the establishing of definitive maximum residue levels.
(7) To ensure that the consumer is adequately protected from exposure to residues in or on products for which no authorisations have been granted, it is prudent to set provisional maximum residue levels at the lower limit of analytical determination for all those products covered by Council Directives 86/362/EEC, 86/363/EEC and 90/642/EEC. The setting at Community level of such provisional maximum residue levels does not prevent the Member States from establishing provisional maximum residue levels for spiroxamine in accordance with Article 4(1)(f) of Directive 91/414/EEC, and in accordance with Annex VI to Directive 91/414/EEC, in particular part B, section 2.4.2.3 of this Annex; four years is considered a sufficient period of time during which to establish most further uses of spiroxamine. After that period these provisional maximum residue levels should become definitive.
(8) The Community notified the draft Commission Directive to the World Trade Organisation and the comments received have been considered in finalising the Directive. The possibility of fixing import tolerance maximum residue levels for specific pesticide/crop combinations will be examined by the Commission on the basis of the submission of acceptable data.
(9) The opinions of the Scientific Committee for Plants, in particular advice and recommendations concerning the protection of consumers of food products treated with pesticides, have been taken into account.
(10) This Directive is in accordance with the opinion of the Standing Committee on Plant Health,
HAS ADOPTED THIS DIRECTIVE:
Article 1
The following shall be added to part A of Annex II to Directive 86/362/EEC:
TABLE "
Article 2
The following shall be added to part B of Annex II to Directive 86/363/EEC:
TABLE "
Article 3
The contents of the Annex to this Directive shall be added to Annex II to Directive 90/642/EEC.
Article 4
1. For those agricultural products listed in Annex II to Directives 86/362/EEC, 86/363/EEC and 90/642/EEC where the maximum residue levels for spiroxamine are indicated as "(p)", this shall mean that they are provisional (p) in accordance with the provisions of Article 4(1)(f) of Directive 91/414/EEC.
2. Four years after the entry into force of this Directive, provisional maximum residue levels for spiroxamine in the Annexes shall cease to be provisional and shall become definitive in the sense of Article 4(1) of Directives 86/362/EEC and 86/363/EEC or Article 3 of Directive 90/642/EEC respectively.
Article 5
1. This Directive shall enter into force on the 20th day following that of its publication in the Official Journal of the European Communities.
2. Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive by 1 July 2001 at the latest. They shall forthwith inform the Commission thereof.
3. When Member Sates adopt those provisions, they shall contain a reference to this Directive or be accompanied by such a reference on the occasion of their official publication. Member States shall determine how such reference is to be made.
Article 6
This Directive is addressed to the Member States.
Done at Brussels, 18 December 2000. | [
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COMMISSION REGULATION (EC) No 1295/2005
of 5 August 2005
setting the reduction in the aid for dried fodder for the 2004/05 marketing year
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Council Regulation (EC) No 603/95 of 21 February 1995 on the common organisation of the market in dried fodder (1), and in particular the second subparagraph of Article 5 thereof,
Whereas:
(1)
Regulation (EC) No 603/95 has been replaced by Council Regulation (EC) No 1786/2003 of 29 September 2003 on the common organisation of the market in dried fodder (2) with effect from 1 April 2005, the date on which the 2005/06 marketing year begins. As a result, Regulation (EC) No 603/95 should continue to apply for determining the final amount of aid for the 2004/05 marketing year.
(2)
Article 3(2) and (3) of Regulation (EC) No 603/95 set the amounts of aid to be paid to processors for dried fodder and sun-dried fodder produced up to the maximum guaranteed quantities laid down in Article 4(1) and (3) of that Regulation.
(3)
The quantities communicated to the Commission by the Member States for the 2004/05 marketing year under the second indent of Article 15(a) of Commission Regulation (EC) No 785/95 of 6 April 1995 laying down detailed rules for the application of Council Regulation (EC) No 603/95 on the common organisation of the market in dried fodder (3) include the quantities in stock on 31 March 2005 which, under Article 34 of Commission Regulation (EC) No 382/2005 of 7 March 2005 laying down detailed rules for the application of Council Regulation (EC) No 1786/2003 on the common organisation of the market in dried fodder (4), may be eligible for the aid provided for in Article 3 of Regulation (EC) No 603/95.
(4)
Those communications indicate that the maximum guaranteed quantity for dried fodder has been exceeded by 16 %.
(5)
The amount of the aid for dried fodder should therefore be reduced in accordance with the first subparagraph of Article 5 of Regulation (EC) No 603/95.
(6)
The measures provided for in this Regulation are in accordance with the opinion of the Management Committee for Dried Fodder,
HAS ADOPTED THIS REGULATION:
Article 1
For the 2004/05 marketing year, the amount of the aid for dried fodder provided for in Article 3(2) of Regulation (EC) No 603/95 is hereby reduced to:
-
EUR 64,36 per tonne in the Czech Republic,
-
EUR 56,40 per tonne in Greece,
-
EUR 54,11 per tonne in Spain,
-
EUR 57,02 per tonne in Italy,
-
EUR 63,24 per tonne in Lithuania,
-
EUR 59,04 per tonne in Hungary,
-
EUR 65,55 per tonne in the other Member States.
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, 5 August 2005. | [
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COMMISSION REGULATION (EC) No 2785/94 of 16 November 1994 on the sale by the procedure laid down in Regulation (EEC) No 2539/84 of boneless beef held by certain intervention agencies and intended for export, and repealing Regulation (EC) No 2439/94
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Council Regulation (EEC) No 805/68 of 27 June 1968 on the common organization of the market in beef and veal (1), as last amended by Regulation (EC) No 1884/94 (2), and in particular Article 7 (3) thereof,
Whereas Commission Regulation (EEC) No 2539/84 of 5 September 1984 laying down detailed rules for certain sales of frozen beef held by the intervention agencies (3), as last amended by Regulation (EEC) No 1759/93 (4), has provided for the possibility of applying a two-stage procedure when selling beef from intervention stocks;
Whereas Commission Regulation (EEC) No 2824/85 of 9 October 1985 laying down detailed rules for the sale of frozen boned beef from intervention stocks for export, either in the same state or after cutting and/or repacking (5), as amended by Regulation (EEC) No 251/93 (6), has provided for repackaging under certain conditions;
Whereas certain intervention agencies hold large stocks of boneless intervention meat; whereas an extension of the period of storage for the meat bought in should be avoided on account of the ensuing high costs; whereas, as there are outlets in certain third countries for the products concerned, part of the meat should be put up for sale in accordance with Regulations (EEC) No 2539/84 and (EEC) No 2824/85;
Whereas with a view to securing a regular and uniform tendering procedure, measures should be taken in addition to those laid down in Regulation (EEC) No 2173/79 (7), as last amended by Regulation (EEC) No 1759/93;
Whereas, it is appropriate to provide for the products to leave the Community within five months following the date of conclusion of the sale contract;
Whereas, as specified in Article 5 of Regulation (EEC) No 2539/84, lodging of securities should be required;
Whereas it is appropriate to specify that, in view of the prices which have been fixed in the context of this sale in order to permit the disposal of certain cuts, exports of such cuts should not be eligible for the refunds periodically fixed in the beef and veal sector;
Whereas products held by intervention agencies and intended for export are subject to the provisions of Commission Regulation (EEC) No 3002/92 (8), as last amended by Regulation (EEC) No 1938/93 (9);
Whereas Commission Regulation (EC) No 2439/94 (10) should be repealed;
Whereas the measures provided for in this Regulation are in accordance with the opinion of the Management Committee for Beef and Veal,
HAS ADOPTED THIS REGULATION:
Article 1
1. A sale shall be organized of approximately:
- 4 000 tonnes of boneless beef held by the Irish intervention agency and bought in before 1 June 1993,
- 6 000 tonnes of boneless beef held by the intervention agency of the United Kingdom and bought in before 1 June 1993,
- 500 tonnes of boneless beef held by the Italiani intervention agency and bought in before 1 February 1993.
2. This meat shall be for export.
3. Subject to the provisions of this Regulation, the sale shall take place in accordance with the provisions of Regulations (EEC) No 2539/84, (EEC) No 2824/85 and (EEC) No 3002/92.
The provisions of Commission Regulation (EEC) No 985/81 (11) shall not apply to this sale.
4. By way of derogation from Article 8 (1) of Regulation (EEC) No 2173/79 a tender must be submitted to the intervention agency concerned in a closed envelope, bearing the reference to the Regulation concerned. The closed envelope must not be opened by the intervention agency before the expiry of the tender deadline referred to in paragraph 6.
5. The qualities and the minimum prices referred to in Article 3 (1) of Regulation (EEC) No 2539/84 are given in Annex I hereto.
6. Only those tenders shall be taken into consideration which reach the intervention agencies concerned not later than 12 noon on 30 November 1994.
7. Particulars of the quantities and the places where the products are stored shall be available to interested parties at the addresses given in Annex II.
Article 2
Products sold under this Regulation shall leave the customs territory of the Community within five months following the date of conclusion of the sale contract.
Article 3
1. The security provided for in Article 5 (1) of Regulation (EEC) No 2539/84 shall be ECU 30 per 100 kilograms.
2. The security provided for in Article 5 (2) (a) of Regulation (EEC) No 2539/84 shall be ECU 450 per 100 kilograms of boneless beef referred to under (a) in Annex I and ECU 230 per 100 kilograms of boneless beef referred to under (b) in Annex I.
Article 4
In the case of the meat referred to under 1 (b), and 2 (b) in Annex I no export refund shall be granted.
Article 5
1. In the removal order referred to in Article 3 (1) (b) of Regulation (EEC) No 3002/92, the export declaration, and, where appropriate, the T5 control copy shall be entered:
Productos de intervención [Reglamento (CE) no 2785/94];
Interventionsprodukter [Forordning (EF) nr. 2785/94];
Interventionserzeugnisse [Verordnung (EG) Nr. 2785/94];
Proionta paremvaseos [Kanonismos (EK) arith. 2785/94];
Intervention products (Regulation (EC) No 2785/94);
Produits d'intervention [Règlement (CE) no 2785/94];
Prodotti d'intervento [Regolamento (CE) n. 2785/94];
Produkten uit interventievoorraden [Verordening (EG) nr. 2785/94];
Produtos de intervençao [Regulamento (CE) nº 2785/94].
2. With regard to the security provided for in Article 3 (2), compliance with the provisions of paragraph 1 shall constitute a primary requirement within the meaning of Article 20 of Commission Regulation (EEC) No 2220/85 (12).
Article 6
Regulation (EC) No 2439/94 is hereby repealed.
Article 7
This Regulation shall enter into force on 30 November 1994.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 16 November 1994. | [
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COMMISSION REGULATION (EC) No 9/2006
of 5 January 2006
fixing the export refunds on white sugar and raw sugar exported in its unaltered 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 second subparagraph of Article 27(5) thereof,
Whereas:
(1)
Article 27 of Regulation (EC) No 1260/2001 provides that the difference between quotations or prices on the world market for the products listed in Article 1(1)(a) of that Regulation and prices for those products within the Community may be covered by an export refund.
(2)
Regulation (EC) No 1260/2001 provides that when refunds on white and raw sugar, undenatured and exported in its unaltered state, are being fixed account must be taken of the situation on the Community and world markets in sugar and in particular of the price and cost factors set out in Article 28 of that Regulation. The same Article provides that the economic aspect of the proposed exports should also be taken into account.
(3)
The refund on raw sugar must be fixed in respect of the standard quality. The latter is defined in Annex I, point II, to Regulation (EC) No 1260/2001. Furthermore, this refund should be fixed in accordance with Article 28(4) of that Regulation. Candy sugar is defined in Commission Regulation (EC) No 2135/95 of 7 September 1995 laying down detailed rules of application for the grant of export refunds in the sugar sector (2). The refund thus calculated for sugar containing added flavouring or colouring matter must apply to their sucrose content and, accordingly, be fixed per 1 % of the said content.
(4)
In special cases, the amount of the refund may be fixed by other legal instruments.
(5)
The refund must be fixed every two weeks. It may be altered in the intervening period.
(6)
The first subparagraph of Article 27(5) of Regulation (EC) No 1260/2001 provides that refunds on the products referred to in Article 1 of that Regulation may vary according to destination, where the world market situation or the specific requirements of certain markets make this necessary.
(7)
The significant and rapid increase in preferential imports of sugar from the western Balkan countries since the start of 2001 and in exports of sugar to those countries from the Community seems to be highly artificial.
(8)
To prevent any abuse through the re-import into the Community of sugar products in receipt of an export refund, no refund should be set for all the countries of the western Balkans for the products covered by this Regulation.
(9)
In view of the above and of the present situation on the market in sugar, and in particular of the quotations or prices for sugar within the Community and on the world market, refunds should be set at the appropriate amounts.
(10)
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 export refunds on the products listed in Article 1(1)(a) of Regulation (EC) No 1260/2001, undenatured and exported in the natural state, are hereby fixed to the amounts shown in the Annex hereto.
Article 2
This Regulation shall enter into force on 6 January 2006.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 5 January 2006. | [
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Commission Regulation (EC) No 651/2001
of 30 March 2001
adjusting certain compensatory agrimonetary aids granted to Denmark and Sweden
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Council Regulation (EC) No 2799/98 of 15 December 1998 establishing agrimonetary arrangements for the euro(1), and in particular Article 5 thereof,
Whereas:
(1) For various Member States, the maximum amount of the compensatory aid resulting from the rates for converting the euro into national currency units and the exchange rates applicable on 1 or 3 January 1999 is laid down in Commission Regulation (EC) No 755/1999(2).
(2) The maximum amount of compensatory aid resulting from the conversion rates applicable on 1 or 2 January 2000 have been set for Denmark, Sweden and the United Kingdom by Commission Regulation (EC) No 801/2000(3).
(3) Article 5(3) of Regulation (EC) No 2799/98 provides that the maximum amounts paid out under the second and third tranches are to be reduced vis-à-vis the level of the previous tranche, by at least a third of the amount paid out in the first tranche, while Article 5(4) of that Regulation provides that the maximum amount of compensatory aid must be reduced or cancelled if necessary as a function of the effect on income of the development of the exchange rates recorded on the first day of the second and third tranche.
(4) The conversion rates applicable to certain direct aids whose operative event is 31 December 2000 or 1 January 2001 are laid down in Commission Regulation (EC) No 408/2001(4). The rates laid down for the Danish krone and the Swedish krona indicate a depreciation of those currencies.
(5) A further reduction should therefore be applied to the maximum amount of the compensatory aid linked to the operative events in 1999 while the maximum amount of compensatory aid linked to the operative events in 2000 should be abolished in the case of Denmark. A further reduction should also be applied to the maximum amount of compensatory aid linked to the operative events in 2000 in the case of Sweden.
(6) The measures provided for in this Regulation are in accordance with the opinions of the Management Committees concerned,
HAS ADOPTED THIS REGULATION:
Article 1
In the case of the measures whose operative event falls on 1 January 1999, the amounts of compensatory aid for Denmark contained in the Annex to Regulation (EC) No 755/1999 shall be multiplied by a factor of 0,9152.
In the case of the measures whose operative event falls on 3 January 1999, the amounts of compensatory aid for Denmark contained in the Annex to Regulation (EC) No 755/1999 shall be multiplied by a factor of 0,9168.
Article 2
The compensatory aid amounts for Denmark contained in the Annex to Regulation (EC) No 801/2000 are hereby deleted.
Article 3
In the case of the measures whose operative event falls on 1 January 2000, the amounts of compensatory aid for Sweden contained in the Annex to Regulation (EC) No 801/2000 shall be multiplied by a factor of 0,8378.
In the case of the measures whose operative event falls on 2 January 2000, the amounts of compensatory aid for Sweden contained in the Annex to Regulation (EC) No 801/2000 shall be multiplied by a factor of 0,8462.
Article 4
This Regulation shall enter into force on the seventh day following its publication in the Official Journal of the European Communities.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 30 March 2001. | [
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*****
COMMISSION DECISION
of 30 July 1990
amending Decision 82/913/EEC as regards the list of establishments in the Republic of South Africa approved for the purpose of importing fresh meat into the Community
(90/433/EEC)
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Economic Community,
Having regard to Council Directive 72/462/EEC of 12 December 1972 on health and veterinary inspection problems upon importation of bovine animals and swine and fresh meat or meat products from third countries (1), as last amended by Directive 89/662/EEC (2), and in particular Articles 4 (1) and 18 (1) thereof,
Having regard to Council Directive 77/96/EEC of 21 December 1976 on the examination for trichinae (trichinella spiralis) upon importation from third countries of fresh meat derives from domestic swine (3), as last amended by Commission Directive 89/321/EEC (4), and in particular Article 4 thereof,
Whereas a list of establishments in the Republic of South Africa and Namibia, approved for the purpose of importing fresh meat into the Community, was drawn up initially by Commission Decision 82/913/EEC (5), as last amended by Decision of 3 November 1989;
Whereas Namibia has become independent, it is necessary to amend Decision 82/913/EEC concerning the list of establishments in the Republic of South Africa and Namibia approved for the purpose of importing fresh meat into the Community;
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 Title of Decision 82/913/EEC is hereby replaced by the following text:
'Commission Decision 82/913/EEC establishing the list of establishments in the Republic of South Africa approved for the purpose of importing fresh meat into the Community.'
2. The Annex to Decision 82/913/EEC is hereby replaced by the Annex to this Decision.
Article 2
This Decision is addressed to the Member States.
Done at Brussels, 30 July 1990. | [
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REGULATION (EC) No 689/2008 OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL
of 17 June 2008
concerning the export and import of dangerous chemicals
THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION,
Having regard to the Treaty establishing the European Community, and in particular Articles 133 and 175(1) thereof,
Having regard to the proposal from the Commission,
Having regard to the Opinion of the European Economic and Social Committee (1),
After consulting the Committee of the Regions,
Acting in accordance with the procedure laid down in Article 251 of the Treaty (2),
Whereas:
(1)
Regulation (EC) No 304/2003 of the European Parliament and of the Council of 28 January 2003 concerning the export and import of dangerous chemicals (3) implemented the Rotterdam Convention on the prior informed consent procedure for certain hazardous chemicals and pesticides in international trade (4), hereinafter ‘the Convention’, which entered into force on 24 February 2004, and replaced Council Regulation (EEC) No 2455/92 of 23 July 1992 concerning the export and import of certain dangerous chemicals (5).
(2)
In its judgment of 10 January 2006 in Case C-178/03 (Commission v Parliament and Council) (6), the Court of Justice of the European Communities annulled Regulation (EC) No 304/2003 as it was based solely on Article 175(1) of the Treaty, ruling that both Articles 133 and 175(1) were the appropriate legal bases. However the Court also ruled that the effects of the Regulation were to be maintained until the adoption, within a reasonable period, of a new Regulation founded on appropriate legal bases. That also implies that obligations that were already fulfilled under Regulation (EC) No 304/2003 do not need to be accomplished again.
(3)
In accordance with Regulation (EC) No 304/2003, the Commission has submitted a report to the European Parliament and the Council on the operation of Regulation (EC) No 304/2003 from 2003 to 2005. Overall the procedures have worked well. However, the report identifies a number of technical amendments that appear to be necessary. It is therefore appropriate to incorporate those elements in this Regulation.
(4)
The Convention allows Parties the right to take action that is more stringently protective of human health and the environment than that called for in the Convention, provided that such action is consistent with the provisions of the Convention and is in accordance with international law. It is necessary and appropriate, in order not to weaken the level of protection afforded to the environment and to the general public of importing countries under Regulation (EEC) No 2455/92, to go further than the provisions of the Convention in certain respects.
(5)
As regards the participation of the Community in the Convention, it is essential to have a single contact point for Community interaction with the Secretariat and other Parties to the Convention as well as with other countries. The Commission should act as that contact point.
(6)
Exports of dangerous chemicals that are banned or severely restricted within the Community should continue to be subject to a common export notification procedure. Accordingly, dangerous chemicals, whether in the form of substances on their own or in preparations or in articles, which have been banned or severely restricted by the Community as plant protection products, as other forms of pesticides, or as industrial chemicals for use by professional users or by the public, should be subject to export notification rules similar to those applicable to such chemicals when they are banned or severely restricted within either or both of the use categories laid down in the Convention, namely as pesticides or chemicals for industrial use. In addition, chemicals subject to the international prior informed consent (PIC) procedure should also be subject to the same rules. This export notification procedure should apply to Community exports to all third countries, whether or not they are Parties to the Convention or participate in its procedures. Member States should be permitted to charge administrative fees, in order to cover their costs in carrying out this procedure.
(7)
Exporters and importers should be obliged to provide information concerning the quantities of chemicals in international trade covered by this Regulation so that the impact and effectiveness of the arrangements laid down therein can be monitored and assessed.
(8)
Notifications to the Secretariat of the Convention of Community or Member State final regulatory actions banning or severely restricting chemicals, with a view to their inclusion in the international PIC procedure, should be submitted by the Commission and should relate to those cases meeting the criteria laid down in the Convention in this regard. Additional information to support such notifications should be sought where necessary.
(9)
In cases where Community or Member State final regulatory actions do not qualify for notification because they do not meet the criteria, information concerning the actions should nevertheless be conveyed to the Convention Secretariat and other Parties to the Convention in the interests of information exchange.
(10)
It is also necessary to ensure that the Community take decisions with regard to the import into the Community of chemicals that are subject to the international PIC procedure. These decisions should be based on applicable Community legislation and take into account bans or severe restrictions imposed by Member States. Where justified, amendments to Community legislation should be proposed.
(11)
Arrangements are needed to ensure that Member States and exporters are aware of the decisions of importing countries as regards chemicals that are subject to the international PIC procedure, and that exporters comply with those decisions. Furthermore, in order to prevent undesired exports, no chemicals banned or severely restricted within the Community that meet the Convention criteria or that are covered under the international PIC procedure should be exported unless the explicit consent of the importing country concerned has been sought and obtained, whether or not that country is a Party to the Convention. At the same time, a waiver from this obligation is appropriate in relation to exports of certain chemicals to countries that are members of the Organisation for Economic Cooperation and Development (OECD) provided that certain conditions are met. Furthermore a procedure is needed to deal with cases in which, despite all reasonable efforts, no response is obtained from the importing country, so that exports of certain chemicals may proceed on a temporary basis under specified conditions. It is also necessary to provide for periodic review of all such cases as well as those in which explicit consent is obtained.
(12)
The database established by the Commission is an important tool which should underpin the application of this Regulation and its control.
(13)
It is also important that all chemicals exported have an adequate shelf-life so that they may be used effectively and safely. As regards pesticides, in particular and especially those exported to developing countries, it is essential that information about appropriate storage conditions be provided and that suitable packaging and sizes of containers are used to avoid creating obsolete stocks.
(14)
Articles containing chemicals do not fall within the scope of the Convention. Nevertheless, it seems appropriate that articles containing chemicals that could be released under certain conditions of use or disposal and that are banned or severely restricted in the Community within one or more of the use categories laid down in the Convention or are subject to the international PIC procedure should also be subject to the export notification rules. Furthermore, certain chemicals and articles containing specific chemicals falling outside the scope of the Convention but giving rise to particular concern should not be exported at all.
(15)
In accordance with the Convention, information on transit movements of chemicals subject to the international PIC procedure should be provided to Parties to the Convention who request such information.
(16)
Community rules on packaging and labelling and other safety information should apply to all dangerous chemicals when intended for export to Parties and other countries unless those provisions would conflict with any specific requirements of those countries, taking into account relevant international standards.
(17)
In order to ensure effective control and enforcement of the rules, Member States should designate authorities such as customs authorities that should have the responsibility of controlling imports and exports of chemicals covered by this Regulation. The Commission and the Member States have a key role to play and should act in a targeted and coordinated way. Member States should provide for appropriate sanctions in the event of infringements. To facilitate customs control, and to reduce the administrative burden for both exporters and authorities, a system of codes confirming compliance with the rules to be used in export declarations should be established. In order to allow all parties time to become accustomed to this system before it becomes mandatory a short transitional period should be provided for.
(18)
Information exchange, shared responsibility and cooperative efforts between the Community and the Member States and third countries should be promoted with a view to ensuring sound management of chemicals, whether or not those third countries are Parties to the Convention. In particular, technical assistance to developing countries and countries with economies in transition should be provided directly by the Commission and the Member States, or indirectly via support for projects by non-governmental organisations, especially assistance seeking to enable those countries to implement the Convention.
(19)
There should be regular monitoring of the operation of the procedures if they are to be effective. To this end, Member States should regularly submit reports to the Commission, which should in turn regularly report to the European Parliament and the Council.
(20)
Technical notes for guidance should be drawn up to assist the competent authorities, including such authorities as customs controlling exports, in the application of this Regulation.
(21)
The measures necessary for the implementation of this Regulation should be adopted in accordance with Council Decision 1999/468/EC of 28 June 1999 laying down the procedures for the exercise of implementing powers conferred on the Commission (7).
(22)
In particular the Commission should be empowered to adopt measures to include a chemical in Parts 1 or 2 of Annex I following final regulatory action at Community level, measures to include a chemical that is subject to Regulation (EC) No 850/2004 of the European Parliament and of the Council of 29 April 2004 on persistent organic pollutants (8) in Part 1 of Annex V, measures to amend Annex I, including modifications to existing entries, measures to include a chemical already subject to an export ban at Community level in Part 2 of Annex V, measures to amend Annexes II, III, IV and VI, and measures to modify existing entries in Annex V. Since those measures are of general scope and are designed to amend non-essential elements of this Regulation, they must be adopted in accordance with the regulatory procedure with scrutiny provided for in Article 5a of Decision 1999/468/EC,
HAVE ADOPTED THIS REGULATION:
Article 1
Objectives
1. The objectives of this Regulation are the following:
(a)
to implement the Rotterdam Convention on the Prior Informed Consent Procedure for Certain Hazardous Chemicals and Pesticides in International Trade, hereinafter ‘the Convention’;
(b)
to promote shared responsibility and cooperative efforts in the international movement of hazardous chemicals in order to protect human health and the environment from potential harm;
(c)
to contribute to the environmentally sound use of hazardous chemicals.
The objectives referred to in the first subparagraph shall be achieved by facilitating the exchange of information concerning the characteristics of such chemicals, by providing for a decision-making process within the Community on their import and export and by disseminating decisions to Parties and other countries as appropriate.
2. In addition to the objectives referred to in paragraph 1, this Regulation shall ensure that the provisions of Council Directive 67/548/EEC (9) and of Directive 1999/45/EC of the European Parliament and of the Council (10) regarding the classification, packaging and labelling of chemicals dangerous to man or to the environment when they are placed on the market in the Community also apply to all such chemicals when they are exported from the Member States to other Parties or other countries, unless those provisions would conflict with any specific requirements of those Parties or other countries.
Article 2
Scope
1. This Regulation shall apply to the following:
(a)
certain hazardous chemicals that are subject to the prior informed consent procedure under the Convention, hereinafter ‘the PIC procedure’;
(b)
certain hazardous chemicals that are banned or severely restricted within the Community or a Member State;
(c)
chemicals when exported in so far as their classification, packaging and labelling are concerned.
2. This Regulation shall not apply to any of the following:
(a)
narcotic drugs and psychotropic substances covered by Council Regulation (EC) No 111/2005 of 22 December 2004 laying down rules for the monitoring of trade between the Community and third countries in drug precursors (11);
(b)
radioactive materials and substances covered by Council Directive 96/29/Euratom of 13 May 1996 laying down basic safety standards for the protection of the health of workers and the general public against the dangers arising from ionizing radiation (12);
(c)
wastes covered by Directive 2006/12/EC of the European Parliament and of the Council of 5 April 2006 on waste (13) and Council Directive 91/689/EEC of 12 December 1991 on hazardous waste (14);
(d)
chemical weapons covered by Council Regulation (EC) No 1334/2000 of 22 June 2000 setting up a Community regime for the control of exports of dual-use items and technology (15);
(e)
food and food additives covered by Regulation (EC) No 882/2004 of the European Parliament and of the Council of 29 April 2004 on official controls performed to ensure the verification of compliance with feed and food law, animal health and animal welfare rules (16);
(f)
feedingstuffs covered by Regulation (EC) No 178/2002 of the European Parliament and of the Council of 28 January 2002 laying down the general principles and requirements of food law, establishing the European Food Safety Authority and laying down procedures in matters of food safety (17) including additives, whether processed, partially processed or unprocessed, intended to be used for oral feeding to animals;
(g)
genetically modified organisms covered by Directive 2001/18/EC of the European Parliament and of the Council of 12 March 2001 on the deliberate release into the environment of genetically modified organisms (18);
(h)
save to the extent covered by Article 3(4)(b) of this Regulation, proprietary medicinal products and veterinary medicinal products covered by Directive 2001/83/EC of the European Parliament and of the Council of 6 November 2001 on the Community code relating to medicinal products for human use (19) and Directive 2001/82/EC of the European Parliament and of the Council of 6 November 2001 on the Community code relating to veterinary medicinal products (20);
(i)
chemicals in quantities not likely to affect health or the environment, and in any event not more than 10 kg, provided that they are imported or exported for the purpose of research or analysis.
Article 3
Definitions
For the purposes of this Regulation, the following definitions shall apply:
1.
‘chemical’ means a substance as defined in Directive 67/548/EEC, whether by itself or in a preparation, or a preparation, whether manufactured or obtained from nature, but does not include living organisms, which belongs to either of the following categories:
(a)
pesticides, including severely hazardous pesticide formulations;
(b)
industrial chemicals;
2.
‘preparation’ means a mixture or a solution composed of two or more substances;
3.
‘article’ means a finished product containing or including a chemical, the use of which has been banned or severely restricted by Community legislation in that particular product;
4.
‘pesticides’ means chemicals in either of the following subcategories:
(a)
pesticides used as plant protection products covered by Council Directive 91/414/EEC of 15 July 1991 concerning the placing of plant protection products on the market (21);
(b)
other pesticides, such as biocidal products under Directive 98/8/EC of the European Parliament and of the Council of 16 February 1998 concerning the placing of biocidal products on the market (22) and such as disinfectants, insecticides and parasiticides covered by Directive 2001/82/EC and Directive 2001/83/EC;
5.
‘industrial chemicals’ means chemicals in either of the following subcategories:
(a)
chemicals for use by professionals;
(b)
chemicals for use by the public;
6.
‘chemical subject to export notification’ means any chemical that is banned or severely restricted within the Community within one or more categories or subcategories, and any chemical listed in Part 1 of Annex I that is subject to the PIC procedure;
7.
‘chemical qualifying for PIC notification’ means any chemical that is banned or severely restricted within the Community or a Member State within one or more categories. Chemicals banned or severely restricted in the Community within one or more categories are listed in Part 2 of Annex I;
8.
‘chemical subject to the PIC procedure’ means any chemical listed in Annex III to the Convention and in Part 3 of Annex I to this Regulation;
9.
‘banned chemical’ means either of the following:
(a)
a chemical all uses of which within one or more categories or subcategories have been prohibited by final regulatory action by the Community, in order to protect human health or the environment;
(b)
a chemical that has been refused approval for first-time use or has been withdrawn by industry either from the Community market or from further consideration in a notification, registration or approval process and where there is evidence that the chemical raises concern for human health or the environment;
10.
‘severely restricted chemical’ means either of the following:
(a)
a chemical, virtually all use of which within one or more categories or subcategories has been prohibited by final regulatory action by the Community in order to protect human health or the environment, but for which certain specific uses remain allowed;
(b)
a chemical that has, for virtually all use, been refused for approval or been withdrawn by industry either from the Community market or from further consideration in a notification, registration or approval process, and where there is evidence that the chemical raises concern for human health or the environment;
11.
‘chemical banned or severely restricted by a Member State’ means any chemical that is banned or severely restricted by national final regulatory action of a Member State;
12.
‘final regulatory action’ means a legislative act the purpose of which is to ban or severely restrict a chemical;
13.
‘severely hazardous pesticide formulation’ means a chemical formulated for use as a pesticide that produces severe health or environmental effects observable within a short period of time after single or multiple exposure, under conditions of use;
14.
‘export’ means the following:
(a)
the permanent or temporary export of a chemical meeting the conditions of Article 23(2) of the Treaty;
(b)
the re-export of a chemical not meeting the conditions of Article 23(2) of the Treaty which is placed under a customs procedure other than the external Community transit procedure for movement of goods through the customs territory of the Community;
15.
‘import’ means the physical introduction into the customs territory of the Community of a chemical that is placed under a customs procedure other than the external Community transit procedure for movement of goods through the customs territory of the Community;
16.
‘exporter’ means any of the following persons, whether natural or legal:
(a)
the person on whose behalf an export declaration is made, that is to say the person who, at the time when the declaration is accepted, holds the contract with the consignee in a Party or other country and has the power to determine that the chemical be sent out of the customs territory of the Community;
(b)
where no export contract has been concluded or where the holder of the contract does not act on its own behalf, the person who has the power to determine that the chemical be sent out of the customs territory of the Community;
(c)
where the benefit of a right to dispose of the chemical belongs to a person established outside the Community pursuant to the contract on which the export is based, the contracting party established in the Community;
17.
‘importer’ means any natural or legal person who at the time of import into the customs territory of the Community is the consignee for the chemical;
18.
‘Party to the Convention’ or ‘Party’ means a State or a regional economic integration organisation that has consented to be bound by the Convention and for which the Convention is in force;
19.
‘other country’ means any country that is not a Party.
Article 4
Designated national authorities
Each Member State shall designate the authority or authorities, hereinafter ‘the designated national authority’ or ‘the designated national authorities’, to carry out the administrative functions required by this Regulation, unless it has already done so before the entry into force of this Regulation.
It shall inform the Commission of such designation by 1 November 2008.
Article 5
Participation of the Community in the Convention
1. The participation of the Community in the Convention shall be a joint responsibility of the Commission and the Member States, in particular as regards technical assistance, the exchange of information and matters relating to dispute settlement, participation in subsidiary bodies and voting.
2. With regard to the Community's participation in the Convention, for the administrative functions of the Convention with reference to the PIC procedure and the export notification, the Commission shall act as a common designated authority on behalf of and in close cooperation and consultation with all the designated national authorities of the Member States.
The Commission shall, in particular, be responsible for the following:
(a)
the transmission of Community export notifications to Parties and other countries pursuant to Article 7;
(b)
the submission to the Secretariat of the Convention, hereinafter ‘the Secretariat’, of notifications of relevant final regulatory actions concerning chemicals qualifying for PIC notification pursuant to Article 10;
(c)
the transmission of information concerning other final regulatory actions involving chemicals not qualifying for PIC notification in accordance with Article 11;
(d)
the receiving of information from the Secretariat more generally.
The Commission shall also provide the Secretariat with Community import responses for chemicals subject to the PIC procedure pursuant to Article 12.
In addition, the Commission shall coordinate the Community input on all technical issues relating to any of the following:
(a)
the Convention;
(b)
the preparation of the Conference of the Parties established by Article 18 of the Convention;
(c)
the Chemical Review Committee established in accordance with Article 18(6) of the Convention;
(d)
other subsidiary bodies.
A network of Member State rapporteurs shall be established, as appropriate, to deal with the preparation of technical documents such as decision guidance documents as referred to in Article 7(3) of the Convention.
3. The Commission and the Member States shall take the necessary initiatives to ensure appropriate representation of the Community in the various bodies implementing the Convention.
Article 6
Chemicals subject to export notification, chemicals qualifying for PIC notification, and chemicals subject to the PIC procedure
1. The chemicals covered by the provisions of this Regulation relating to export notification, PIC notification and the PIC procedure respectively shall be as listed in Annex I.
2. Chemicals in Annex I shall be assignable to one or more of three groups of chemicals, set out as Parts 1, 2 and 3 of Annex I.
The chemicals listed in Part 1 of Annex I shall be subject to the export notification procedure laid down in Article 7, with detailed information being given on the identity of the substance, on the use category and/or subcategory subject to restriction, the type of restriction and, where appropriate, additional information, in particular on exemptions to requirements for export notification.
The chemicals listed in Part 2 of Annex I shall, in addition to being subject to the export notification procedure laid down in Article 7, qualify for the PIC notification procedure set out in Article 10, with detailed information being given on the identity of the substance and on the use category.
The chemicals listed in Part 3 of Annex I shall be subject to the PIC procedure with the use category being given and, where appropriate, additional information, in particular on any requirements for export notification.
3. The lists referred to in paragraph 2 shall be made available to the public by electronic means.
Article 7
Export notifications forwarded to Parties and other countries
1. In the case of substances listed in Part 1 of Annex I or preparations containing such substances in a concentration that could trigger labelling obligations under Directive 1999/45/EC irrespective of the presence of any other substances, paragraphs 2 to 8 shall apply.
2. When an exporter is due to export a chemical referred to in paragraph 1 from the Community to a Party or other country for the first time on or after the date on which it becomes subject to this Regulation, the exporter shall notify the designated national authority of the Member State in which he is established, no later than 30 days before the export of the chemical is due to take place. Thereafter the exporter shall notify the designated national authority of the first export of such chemical each calendar year no later than 15 days before the export takes place. The notification shall comply with the requirements set out in Annex II.
The designated national authority shall check compliance of the information with Annex II and promptly forward the notification received from the exporter to the Commission.
The Commission shall take the measures necessary to ensure that the designated national authority of the importing Party or the appropriate authority of the importing other country receive notification no later than 15 days before the first intended export of the chemical and thereafter before the first export in any subsequent calendar year. This shall apply regardless of the expected use of the chemical in the importing Party or other country.
Each export notification shall be registered and assigned an export reference identification number in a database at the Commission, and an updated list of the chemicals concerned and the importing Parties and other countries for each calendar year shall be kept available to the public and distributed to the designated national authorities of the Member States as appropriate.
3. If the Commission does not receive from the importing Party or other country an acknowledgement of receipt of the first export notification given after the chemical is included in the Part 1 of Annex I within 30 days of the dispatch of such notification, it shall submit a second notification. The Commission shall make reasonable efforts to ensure that the designated national authority of the importing Party or the appropriate authority of the importing other country receives the second notification.
4. A new export notification as provided for in paragraph 2 shall be given for exports which take place subsequent to changes to Community legislation concerning the marketing, use or labelling of the substances in question or whenever the composition of the preparation in question changes so that the labelling of such preparation is altered. The new notification shall comply with the requirements set out in Annex II and shall indicate that it is a revision of a previous notification.
5. Where the export of a chemical relates to an emergency situation in which any delay may endanger public health or the environment in the importing Party or other country, the requirements of paragraphs 2, 3 and 4 may be waived wholly or partly at the discretion of the designated national authority of the exporting Member State, in consultation with the Commission.
6. The obligations set out in paragraphs 2, 3 and 4 shall cease when the following conditions are fulfilled:
(a)
the chemical has become a chemical subject to the PIC procedure;
(b)
the importing country being a Party to the Convention has provided the Secretariat with a response in accordance with Article 10(2) of the Convention indicating whether or not it consents to import of the chemical;
(c)
the Commission has been informed of that response by the Secretariat and has forwarded that information to Member States.
The first subparagraph shall not apply where the importing country being Party to the Convention explicitly requires continued export notification by exporting Parties, for example through its import decision or otherwise.
The obligations set out in paragraphs 2, 3 and 4 shall also cease when the following conditions are fulfilled:
(a)
the designated national authority of the importing Party or the appropriate authority of the importing other country has waived the requirement to be notified before the export of the chemical;
(b)
the Commission has received the information from the Secretariat or from the designated national authority of the importing Party or the appropriate authority of the importing other country and has forwarded it to Member States and made it available on the Internet.
7. The Commission, the relevant designated national authorities of the Member States and the exporters shall provide importing Parties and other countries with available additional information concerning the exported chemicals, when requested.
8. Member States may establish systems obliging exporters to pay an administrative fee for each export notification given and for each request for explicit consent made, corresponding to the costs to them of carrying out the procedures set out in paragraphs 2, 3 and 4 of this Article and in Article 13(3), (6) and (7).
Article 8
Export notifications received from Parties and other countries
1. Export notifications received by the Commission from the designated national authorities of Parties or the appropriate authorities of other countries concerning the export to the Community of a chemical the manufacture, use, handling, consumption, transport or sale of which is subject to prohibition or severe restriction under that Party's or other country's legislation shall be made available by electronic means through the database maintained by the Commission.
The Commission shall acknowledge receipt of the first export notification received for each chemical from each Party or other country.
The designated national authority of the Member State receiving that import shall receive a copy of any notification received together with all available information. Other Member States shall be entitled to receive copies on request.
2. Should the designated national authorities of the Member States receive any export notifications either directly or indirectly from the designated national authorities of Parties or the appropriate authorities of other countries, they shall immediately forward those notifications to the Commission together with all available information.
Article 9
Information on export and import of chemicals
1. Each exporter of:
-
substances listed in Annex I,
-
preparations containing such substances in a concentration that could trigger labelling obligations under Directive 1999/45/EC irrespective of the presence of any other substances, or
-
articles containing substances listed in Parts 2 or 3 of Annex I in unreacted form or preparations containing such substances in a concentration that could trigger labelling obligations under Directive 1999/45/EC irrespective of the presence of any other substances,
shall, during the first quarter of each year, inform the designated national authority of its Member State regarding the quantity of the chemical, as a substance and as contained in preparations or in articles, shipped to each Party or other country during the preceding year. That information shall be given together with a list of the names and addresses of each importer to which shipment took place during the same period. That information shall list separately exports pursuant to Article 13(7).
Each importer within the Community shall provide the same information for the quantities imported into the Community.
2. Upon request from the Commission or the designated national authority of its Member State, the exporter or importer shall provide any additional information relating to chemicals that is necessary to implement this Regulation.
3. Each Member State shall provide the Commission each year with aggregated information in accordance with Annex III. The Commission shall summarise that information at Community level and shall make the non-confidential information publicly available on its database via the Internet.
Article 10
Notification of banned or severely restricted chemicals under the Convention
1. The Commission shall notify the Secretariat in writing of the chemicals that qualify for PIC notification.
2. Where further chemicals qualify for PIC notification and are added to Part 2 of Annex I, the Commission shall notify the Secretariat. The notification shall be submitted as soon as possible after adoption of the relevant final Community regulatory action banning or severely restricting the chemical, and no later than 90 days after the date on which the final regulatory action must be applied.
3. The notification shall provide all relevant information as required in Annex IV.
4. In determining priorities for notifications, the Commission shall take into account whether the chemical is already listed in Part 3 of Annex I, the extent to which the information requirements laid down in Annex IV can be met, and the severity of the risks presented by the chemical, in particular for developing countries.
When a chemical qualifies for PIC notification, but the information is insufficient to meet the requirements of Annex IV, identified exporters or importers shall, upon request by the Commission, provide all relevant information available to them, including that from other national or international chemical control programmes, within 60 days of the request.
5. The Commission shall notify the Secretariat in writing when a final regulatory action notified under paragraphs 1 or 2 is amended as soon as possible after adoption of the new final regulatory action, and no later than 60 days after the date on which the new final regulatory action must be applied.
The Commission shall provide all relevant information that was not available at the time when the initial notification was given under paragraphs 1 or 2 respectively.
6. Upon request from any Party or from the Secretariat, the Commission shall provide additional information concerning the chemical or the final regulatory action, as far as practicable.
The Member States shall, upon request, assist the Commission as necessary in compiling that information.
7. The Commission shall forward immediately to the Member States information that it receives from the Secretariat regarding chemicals notified as banned or severely restricted by other Parties.
Where appropriate the Commission shall evaluate, in close cooperation with the Member States, the need to propose measures at Community level in order to prevent any unacceptable risks to human health or the environment within the Community.
8. Where a Member State takes national final regulatory action in accordance with the relevant Community legislation to ban or severely restrict a chemical, it shall provide the Commission with relevant information. The Commission shall make that information available to the Member States. Within four weeks of that information having been made available Member States may send comments on a possible PIC notification, including, in particular, relevant information about their national regulatory position in respect of the chemical to the Commission and to the Member State which submitted the national final regulatory action. After consideration of the comments the submitting Member State shall inform the Commission whether the latter shall:
-
notify the Secretariat, pursuant to this Article, or
-
provide the information to the Secretariat, pursuant to Article 11.
Article 11
Information to be transmitted to the Secretariat concerning banned or severely restricted chemicals not qualifying for PIC notification
When a chemical is listed only in Part 1 of Annex I or following receipt of information from a Member State for the purposes of the second indent of Article 10(8), the Commission shall provide the Secretariat with information concerning the relevant final regulatory actions, so that that information can be disseminated to other Parties to the Convention as appropriate.
Article 12
Obligations in relation to imports of chemicals
1. The Commission shall immediately forward to the Member States any decision guidance documents which it receives from the Secretariat.
The Commission shall, in accordance with the advisory procedure referred to in Article 24(2), take an import decision, in the form of a final or interim import response on behalf of the Community, concerning the future import of the chemical concerned. It shall then communicate the decision to the Secretariat as soon as possible, and no later than nine months after the date of dispatch of the decision guidance document by the Secretariat.
Where a chemical is subject to additional or amended restrictions under Community legislation, the Commission shall revise the import decision in accordance with the advisory procedure referred to in Article 24(2) and communicate the revised import decision to the Secretariat.
2. In the case of a chemical banned or severely restricted by one or more Member States, the Commission shall, at the written request of the Member States concerned, take the information into account in its import decision.
3. An import decision under paragraph 1 shall relate to the category or categories specified for the chemical in the decision guidance document.
4. When communicating the import decision to the Secretariat, the Commission shall provide a description of the legislative or administrative measure upon which it is based.
5. Each designated national authority within the Community shall make the import decisions under paragraph 1 available to those concerned within its competence, in accordance with its legislative or administrative measures.
6. Where appropriate, the Commission shall evaluate, in close cooperation with the Member States, the need to propose measures at Community level in order to prevent any unacceptable risks to human health or the environment within the Community, taking into account the information given in the decision guidance document.
Article 13
Obligations in relation to exports of chemicals other than export notification requirements
1. The Commission shall immediately forward to the Member States and European industry associations information which it receives, whether in the form of circulars or otherwise, from the Secretariat regarding chemicals subject to the PIC procedure and the decisions of importing Parties regarding import conditions applicable to those chemicals. It shall also immediately forward to the Member States information concerning any cases of failure to transmit a response in accordance with Article 10(2) of the Convention. The Commission shall keep all information regarding import decisions, which shall each be assigned an import decision reference identification number, available in its database, which shall be publicly available on the Internet, and provide anyone with that information upon request.
2. The Commission shall assign each chemical listed in Annex I a classification in the European Community's Combined Nomenclature. Those classifications shall be revised as necessary in the light of any changes made in the World Customs Organization's Harmonized System Nomenclature or in the European Community's Combined Nomenclature for the chemicals concerned.
3. Each Member State shall communicate the responses forwarded by the Commission under paragraph 1 to those concerned within its jurisdiction.
4. Exporters shall comply with decisions in each import response no later than six months after the Secretariat has first informed the Commission of that response under paragraph 1.
5. The Commission and the Member States shall advise and assist importing Parties, upon request and as appropriate, to obtain further information to help them to make a response to the Secretariat concerning import of a given chemical.
6. Substances listed in Parts 2 or 3 of Annex I or preparations containing such substances in a concentration that could trigger labelling obligations under Directive 1999/45/EC irrespective of the presence of any other substances shall not be exported unless either of the following conditions is fulfilled:
(a)
explicit consent to import has been sought and received by the exporter through his designated national authority in consultation with the Commission and the designated national authority of the importing Party or an appropriate authority in an importing other country;
(b)
in the case of chemicals listed in Part 3 of Annex I, the latest circular issued by the Secretariat pursuant to paragraph 1 indicates that the importing Party has given consent to import.
In the case of chemicals listed in Part 2 of Annex I that are to be exported to OECD countries, the designated national authority of the exporter may, in consultation with the Commission and on a case-by-case basis, decide that no explicit consent is required if the chemical, at the time of importation into the OECD country concerned, is licensed, registered or authorised in that OECD country.
Where explicit consent has been sought pursuant to point (a), if the Commission or the designated national authority of the exporter has not received a response to its request within 30 days, the Commission shall send a reminder. Where appropriate, if there is still no response within a further 30 days, the Commission may send further reminders as necessary.
7. In the case of chemicals listed in Parts 2 or 3 of Annex I, the designated national authority of the exporter may, in consultation with the Commission and on a case-by-case basis, decide that the export may proceed if, after all reasonable efforts, no response to a request for explicit consent pursuant to paragraph 6(a) has been received within 60 days and there is evidence from official sources in the importing Party or other country that the chemical has been licensed, registered or authorised.
When deciding on the export of chemicals listed in Part 3 of Annex I, the designated national authority in consultation with the Commission shall consider the possible impact on human health or the environment of the use of the chemical in the importing Party or other country.
8. The validity of each explicit consent obtained pursuant to paragraph 6(a) or waiver granted pursuant to paragraph 7 shall be subject to periodic review by the Commission in consultation with the Member States concerned as follows:
(a)
for each explicit consent obtained pursuant to paragraph 6(a) a new explicit consent shall be required by the end of the third calendar year after the consent was given, unless the terms of that consent require otherwise;
(b)
unless a response to a request has been received in the meantime, each waiver granted pursuant to paragraph 7 shall be for a maximum period of 12 months, upon expiry of which explicit consent shall be required.
In the cases referred to in point (a) of this paragraph, exports may, however, continue after the end of the relevant period, pending a response to a new request for explicit consent, for an additional period of 12 months.
All new requests shall be channelled through the Commission.
9. The Commission shall register all requests for explicit consent, responses obtained and waivers granted in its database. Each explicit consent obtained or waived shall be assigned an explicit consent reference identification number and shall be listed with all relevant information concerning any conditions attached, validity dates, etc. The non-confidential information shall be made publicly available on the Internet.
10. No chemical shall be exported later than six months before its expiry date, when such a date exists or can be inferred from the production date, unless the intrinsic properties of the chemical render that impracticable. In particular, in the case of pesticides, exporters shall ensure that the size and packaging of containers is optimised so as to minimise the risks of creating obsolete stocks.
11. When exporting pesticides, exporters shall ensure that the label contains specific information about storage conditions and storage stability under the climatic conditions of the importing Party or other country. In addition, they shall ensure that the pesticides exported comply with the purity specification laid down in Community legislation.
Article 14
Export of certain chemicals and articles containing chemicals
1. Articles containing substances listed in Parts 2 or 3 of Annex I in unreacted form or preparations containing such substances in a concentration that could trigger labelling obligations under Directive 1999/45/EC irrespective of the presence of any other substances shall be subject to the export notification procedure laid down in Article 7.
2. Chemicals and articles the use of which is prohibited in the Community for the protection of human health or the environment, as listed in Annex V, shall not be exported.
Article 15
Information on transit movements
1. Parties to the Convention requiring information concerning transit movements of chemicals subject to the PIC procedure, together with the information requested by each Party to the Convention through the Secretariat, shall be as listed in Annex VI.
2. When a chemical listed in Part 3 of Annex I is transported through the territory of a Party to the Convention listed in Annex VI, the exporter shall, as far as practicable, provide the designated national authority of the Member State in which he is established with the information required by the Party to the Convention in accordance with Annex VI no later than 30 days before the first transit movement takes place and no later than eight days before each subsequent transit movement.
3. The designated national authority of the Member State shall forward to the Commission the information received from the exporter under paragraph 2 together with any additional information available.
4. The Commission shall forward the information received under paragraph 3 to the designated national authorities of Parties to the Convention which requested that information, together with any additional information available, no later than 15 days before the first transit movement and prior to any subsequent transit movement.
Article 16
Information to accompany exported chemicals
1. Chemicals that are intended for export shall be subject to the measures on packaging and labelling established in, or pursuant to, Directive 67/548/EEC, Directive 1999/45/EC, Directive 91/414/EEC and Directive 98/8/EC, or any other specific Community legislation.
The first subparagraph shall be without prejudice to any specific requirements of the importing Party or other country taking into account relevant international standards.
2. Where appropriate, the expiry date and the production date of chemicals referred to in paragraph 1 or listed in Annex I shall be indicated on the label, and if necessary such expiry dates shall be given for different climate zones.
3. A safety data sheet in accordance with Regulation (EC) No 1907/2006 of the European Parliament and of the Council of 18 December 2006 on the Registration, Evaluation, Authorisation and Restriction of Chemicals (REACH) and establishing a European Chemicals Agency (23) shall accompany chemicals referred to in paragraph 1 when exported. The exporter shall send such a safety data sheet to each importer.
4. The information on the label and on the safety data sheet shall as far as practicable be given in the official languages, or in one or more of the principal languages, of the country of destination or of the area of intended use.
Article 17
Obligations of the authorities of the Member States and exporters for controlling imports and exports
1. Each Member State shall designate authorities such as customs authorities that shall have the responsibility of controlling the import and export of chemicals listed in Annex I, unless it has already done so before the entry into force of this Regulation.
The Commission and the Member States shall act in a targeted and coordinated way in monitoring exporters' compliance with this Regulation.
Each Member State shall, in its regular reports on the operation of procedures pursuant to Article 21(1), include details of the activities of its authorities in that regard.
2. Exporters shall provide in their export declaration (box 44 of the Single Administrative Documents or corresponding data element in an electronic export declaration) as referred to in Article 161(5) of Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code (24) the applicable reference identification numbers referred to in Article 7(2) or Article 13(1) or (9) of this Regulation as appropriate confirming compliance with the obligations to which they relate.
Article 18
Penalties
Member States shall determine the penalties applicable to infringements of the provisions of this Regulation and take all measures necessary to ensure correct implementation of these provisions. The penalties shall be effective, proportionate and dissuasive. If they have not already done so before the entry into force of this Regulation, Member States shall notify the Commission of those measures by 1 August 2009. They shall also notify it of any further modifications as soon as possible after their adoption.
Member States shall make all information regarding penalties available upon request.
Article 19
Exchange of information
1. The Commission and the Member States shall, as appropriate, facilitate the provision of scientific, technical, economic and legal information concerning chemicals subject to this Regulation, including toxicological, ecotoxicological and safety information.
The Commission, with the support of the Member States as necessary, shall, as appropriate, ensure:
(a)
the provision of publicly available information concerning regulatory actions relevant to the objectives of the Convention; and
(b)
the provision of information for Parties and other countries directly or through the Secretariat concerning those actions which substantially restrict one or more uses of a chemical.
2. The Commission and the Member States shall protect any confidential information received from a Party or other country as mutually agreed.
3. As regards the transmission of information under this Regulation, and without prejudice to Directive 2003/4/EC of the European Parliament and of the Council of 28 January 2003 on public access to environmental information (25), the following information at least shall not be regarded as confidential:
(a)
the information specified in Annex II and Annex IV;
(b)
the information contained in safety data sheets referred to in Article 16(3);
(c)
the expiry date of a chemical;
(d)
the production date of a chemical;
(e)
information concerning precautionary measures, including hazard classification, the nature of the risk and the relevant safety advice;
(f)
the summary results of toxicological and ecotoxicological tests;
(g)
information concerning handling packaging after chemicals have been removed.
A compilation of the information transmitted shall be prepared regularly by the Commission on the basis of the contributions by Member States.
Article 20
Technical assistance
The Commission and the designated national authorities of the Member States shall, taking into account in particular the needs of developing countries and countries with economies in transition, cooperate in promoting technical assistance, including training, for the development of the infrastructure, the capacity and the expertise necessary to manage chemicals properly throughout their lifecycles.
In particular, and with a view to enabling those countries to implement the Convention, technical assistance shall be promoted by means of the provision of technical information concerning chemicals, the promotion of the exchange of experts, support for the establishment or maintenance of designated national authorities and the provision of technical expertise for the identification of hazardous pesticide formulations and for the preparation of notifications to the Secretariat.
The Commission and the Member States shall actively participate in the Information Network on Capacity Building set up by the Intergovernmental Forum on Chemical Safety, by providing information concerning the projects they are supporting or financing to improve the management of chemicals in developing countries and countries with economies in transition.
The Commission and the Member States shall also consider giving support to non-governmental organisations.
Article 21
Monitoring and reporting
1. Member States shall regularly forward to the Commission information concerning the operation of the procedures provided for in this Regulation, including customs controls, infringements, penalties and remedial action.
2. The Commission shall regularly compile a report on the performance of the functions provided for in this Regulation for which it is responsible and shall incorporate it in a synthesis report integrating the information provided by the Member States under paragraph 1. A summary of that report, which shall be published on the Internet, shall be forwarded to the European Parliament and to the Council.
3. As regards the information supplied pursuant to paragraphs 1 and 2, the Member States and the Commission shall comply with relevant obligations to protect the confidentiality of data and ownership.
Article 22
Updating annexes
1. The list of chemicals in Annex I shall be reviewed by the Commission at least every year, on the basis of developments in Community law and under the Convention.
2. When determining whether a final regulatory action at Community level constitutes a ban or a severe restriction, the effect of that action shall be assessed at the level of the subcategories within the categories ‘pesticides’ and ‘industrial chemicals’. If the final regulatory action bans or severely restricts a chemical within any one of the subcategories it shall be included in Part 1 of Annex I.
When determining whether a final regulatory action at Community level constitutes a ban or a severe restriction such that the chemical concerned qualifies for PIC notification under Article 10, the effect of that action shall be assessed at the level of the categories ‘pesticides’ and ‘industrial chemicals’. If the final regulatory action bans or severely restricts a chemical within either of the categories it shall also be included in Part 2 of Annex I.
3. The decision to include chemicals in Annex I, or to amend their entry where appropriate, shall be taken without undue delay.
4. The following measures, designed to amend non-essential elements of this Regulation, shall be adopted in accordance with the regulatory procedure with scrutiny referred to in Article 24(3):
(a)
measures to include a chemical in Parts 1 or 2 of Annex I pursuant to paragraph 2 following final regulatory action at Community level;
(b)
measures to include a chemical that is subject to Regulation (EC) No 850/2004 in Part 1 of Annex V;
(c)
other measures to amend Annex I, including modifications to existing entries;
(d)
measures to include a chemical already subject to an export ban at Community level in Part 2 of Annex V;
(e)
measures to amend Annexes II, III, IV and VI;
(f)
measures to modify existing entries in Annex V.
Article 23
Technical notes for guidance
The Commission, in accordance with the advisory procedure referred to in Article 24(2), shall draw up technical notes for guidance to facilitate the day-to-day application of this Regulation.
The technical notes shall be published in the ‘C’ series of the Official Journal of the European Union.
Article 24
Committee
1. The Commission shall be assisted by the committee established by Article 133 of Regulation (EC) No 1907/2006.
2. Where reference is made to this paragraph, Article 3 and Article 7 of Decision 1999/468/EC shall apply, having regard to the provisions of Article 8 thereof.
3. Where reference is made to this paragraph, Article 5(a)(1) to (4) and Article 7 of Decision 1999/468/EC shall apply, having regard to the provisions of Article 8 thereof.
Article 25
References to Regulation (EC) No 304/2003
References to Regulation (EC) No 304/2003 shall be construed as references to this Regulation.
Article 26
Entry into force
This Regulation shall enter into force on the day following its publication in the Official Journal of the European Union.
Article 17(2), however, shall apply as from 1 November 2008.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Strasbourg, 17 June 2008. | [
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COMMISSION REGULATION (EC) NO 1332/2005
of 9 August 2005
amending Council Regulation (EC) No 338/97 on the protection of species of wild fauna and flora by regulating trade therein
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Council Regulation (EC) No 338/97 of 9 December 1996 on the protection of species of wild fauna and flora by regulating trade therein (1), and in particular Article 19(3), thereof,
Whereas:
(1)
At the 13th session of the Conference of the Parties to the Convention on International Trade in Endangered Species of Wild Fauna and Flora, hereinafter ‘the Convention’, held in Bangkok (Thailand) in October 2004, certain amendments were made to the Appendices to the Convention.
(2)
The species Orcaella brevirostris, Cacatua sulphurea, Amazona finschi, Pyxis arachnoides and Chrysalidocarpus decipiens were transfered from Appendix II to the Convention to Appendix I thereto.
(3)
The species Haliaeetus leucocephalus, Cattleya trianaei and Vanda coerulea, the Swaziland population of Ceratotherium simum simum (for the exclusive purpose of allowing international trade in hunting trophies and in live animals to appropriate and acceptable destinations), the Cuban population of Crocodylus acutus and the Namibian population of Crocodylus niloticus were transfered from Appendix I to the Convention to Appendix II thereto.
(4)
The annotations for the listings in Appendix II to the Convention of the species Loxodonta africana (populations of Namibia and South Africa), Euphorbia spp., Orchidaceae, Cistanche deserticola and Taxus wallichiana were amended.
(5)
The species Malayemis subtrijuga, Notochelys platynota, Amyda cartilaginea, Carettochelys insculpta, Chelodina mccordi, Uroplatus spp., Carcharodon carcharias (currently listed on Appendix III), Cheilinus undulatus, Lithophaga lithophaga, Hoodia spp., Taxus chinensis, T. cuspidata, T. fuana, T. sumatrana), Aquilaria spp. (except for A. malaccensis, which was already listed in Appendix II), Gyrinops spp. and Gonystylus spp. (previously listed in Appendix III) were included in Appendix II to the Convention.
(6)
The species Agapornis roseicollis was deleted from Appendix II to the Convention.
(7)
Subsequent to the thirteenth session of the Conference of the Parties to the Convention, the Chinese populations of the species Chinemys megalocephala, C. nigricans, C. reevesii, Geoemyda spengleri, Mauremys iversoni, M. pritchardi, Ocadia glyhpistoma, O. philippeni, O. sinensis, Sacalia bealei, S. pseudocellata, S. quadriocellata, Palea steindachneri, Pelodiscus axenaria, P. maackii, P. parviformis, P. sinensis and Rafetus swinhoei were subsequently been added to Appendix III of the Convention at the request of China .
(8)
None of the Member States have entered a reservation in respect of any of those amendments.
(9)
The thirteenth session of the Conference of the Parties to the Convention also adopted new taxonomic references which necessitate the renaming and taxonomic reordering of some of the species listed in the Appendices to the Convention.
(10)
The amendments made to Appendices I, II and III to the Convention therefore necessitate amendments to Annexes A, B and C of the Annex to Regulation (EC) No 338/97.
(11)
Despite the fact that the species Haliaeetus leucocephalus was transfered to Appendix II to the Convention, Article 6(1) of Council Directive 79/409/EEC of 2 April 1979 on the conservation of wild birds (2) justifies its retention in Annex A of the Annex to Regulation (EC) No 338/97.
(12)
In accordance with the requirements of Article 12(2) of Council Directive 92/43/EEC of the 21 May 1992 on the conservation of natural habitats and of wild fauna and flora (3), Orcaella brevirostris is already listed in Annex A of the Annex to Regulation (EC) No 338/97.
(13)
The species Arisaema jacquemontii, A. speciosum, A. triphyllum, Biaris davisii ssp. davisii, Othonna armiana, O. euphorbioides, O. lobata, Adenia fruticosa, A. spinosa, Ceraria gariepina, C. longipedunculata, C. namaquensis, C. pygmaea, C. schaeferi, Trillium catesbaei, T. cernuum, T. flexipes, T. grandiflorum, T. luteum, T. recurvatum and T. undulatum - all currently included in Annex D of the Annex to Regulation (EC) No 338/97 - are not imported into the Community in such numbers as to warrant monitoring. Those species should therefore be deleted from Annex D.
(14)
On the other hand, Selaginella lepidophylla, not currently listed in Annexes A, B, C or D of the Annex to Regulation (EC) No 338/97 is being imported into the Community in such numbers as to warrant monitoring. That species should therefore be included in Annex D of the Annex to Regulation (EC) No 338/97.
(15)
The nature of the trade in Harpagophytum spp., currently listed in Annex D of the Annex to Regulation (EC) No 338/97, is such that the trade in dead plant material, as well as in live plants, warrants monitoring. The listing of that genus should therefore be amended by the insertion of an annotation to this effect.
(16)
In view of the extent of the amendments it is appropriate, for clarity purposes, to replace the Annex to Regulation (EC) No 338/97 in its entirety.
(17)
The measures provided for in this Regulation are in accordance with the opinion of the Committee on Trade in Wild Fauna and Flora,
HAS ADOPTED THIS REGULATION:
Article 1
The Annex to Regulation (EC) No 338/97 is replaced by the text in 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, 9 August 2005. | [
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COMMISSION DECISION
of 17 October 2007
setting up the Group of Experts on Trafficking in Human Beings
(2007/675/EC)
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Whereas:
(1)
With a view to enhancing the fight against trafficking in human beings at European level and in accordance with the Brussels Declaration (1) (2002) that expressed the need for a group of experts on trafficking in human beings to be set up by the Commission, the group was created with the Commission Decision 2003/209/EC of 25 March 2003. The consultative group is to be known as the ‘Experts Group on Trafficking in Human Beings.’ (2).
(2)
The Experts Group on Trafficking in Human Beings was mandated to contribute to the further development of the prevention of and the fight against trafficking in human beings, to enable the Commission to gather opinions in view of Commission initiatives relating to trafficking in human beings and to prepare a report based on the recommendations set out in the Brussels Declaration. The Experts Group in December 2004 submitted the report together with a set of recommendations with a view to launching further concrete proposals at European level.
(3)
The Commission Communication of 18 October 2005‘Fighting trafficking in human beings - an integrated approach and proposals for an action plan’ (3) was largely based upon the report and the recommendations developed by the Experts Group. On 1 December 2005, the Council adopted the EU plan on best practices, standards and procedures for combating and preventing trafficking in human beings (4), which reflects a number of suggestions made in the Commission's Communication.
(4)
In the light of the valuable work carried out by the Experts Group on Trafficking in Human Beings since 2003 that has enabled the Commission to further develop its policy in the area and taking into account the increasing importance at global level of the policy area of trafficking in human beings, the Group of Experts should continue its work. A new decision is required in order to take account the enlargement of the European Union. The scope of the group of experts should also be extended and should be able to benefit from a wider range of expertise that is demanded by the changing phenomenon of trafficking in human beings.
(5)
The Group of Experts should continue to advise the Commission taking into account current developments at European, national and international level. In particular, it should assist the Commission in the implementation and development of actions envisaged in the EU plan on best practices, standards and procedures for combating and preventing trafficking in human beings of December 2005 while paying special attention to the area of labour exploitation.
(6)
The Group of Experts should be composed of 21 members representing a balance of representatives of public bodies of EU Member States and non-profit organisations of the European Union, and Europol. Experts from the academic sector and consultancies specialising in the non-profit sector should also be eligible for membership.
(7)
The Group of Experts should be able to establish sub-groups in order to facilitate and accelerate its work by focusing on a specific issue. The terms of reference of such sub-groups should be agreed upon by the Group of Experts as a whole and should be clearly defined.
(8)
Rules on disclosure of information by members of the Group of Experts should be provided for, without prejudice to the Commission’s rules on security as set out in the Annex to Commission Decision 2001/844/EC, ECSC, Euratom (5).
(9)
Personal data relating to members of the group should be processed in accordance with Regulation (EC) No 45/2001 of the European Parliament and of the Council of 18 December 2000 on the protection of individuals with regard to the processing of personal data by the Community institutions and bodies and on the free movement of such data (6).
(10)
The term of office of the Members should be three years and should be renewable.
(11)
Decision 2003/209/EC should be repealed,
HAS DECIDED AS FOLLOWS:
Article 1
The group of experts on trafficking in human beings
The ‘Group of experts on Trafficking in Human Beings’, hereinafter referred to as ‘the group’, is hereby set up.
Article 2
Consultation
1. The Commission may consult the group on any matter relating to trafficking in human beings.
2. The group's task shall be:
(a)
to establish cooperation between Member States, other parties as listed in Article 3 paragraph 2(b) and the Commission on the range of questions relating to trafficking in human beings;
(b)
to help the Commission, by issuing opinions related to the trafficking in human beings, and ensuring a coherent approach to the subject;
(c)
to help the Commission assess the evolution of policy in the filed of trafficking in human beings at national, European and international levels;
(d)
to assist the Commission in identifying and defining possible relevant measures and actions at European and national level across the range of the anti-trafficking policy;
(e)
The Group of Experts shall issue opinions or reports to the Commission at the latter's request or on its own initiative, taking into due consideration the implementation and further development at EU level of the EU Plan on best practices, standards and procedures for combating and preventing trafficking in human beings, and related forms of exploitation. It will also take into account the gender dimension.
3. The Chairperson of the group may advise the Commission that is desirable to consult the group on a specific question.
Article 3
Membership - Appointment
1. The group shall be composed of 21 members. Call for application to be a member in the group will be published in the Official Journal and at the public website of Directorate-general Justice, liberty and Security.
2. The members of the group of experts shall be appointed from specialists with expertise and experience in the fight against trafficking in human beings, including the labour dimension of trafficking in human beings, taken from:
(a)
administrations of the Member States (up to 11 members);
(b)
inter-governmental, international and non-governmental organisations active at European level with well documented expertise and experience in the area of trafficking in human beings (up to 5 members);
(c)
social partners and employers' associations operating at European level (up to 4 members);
(d)
Europol (1 member);
(e)
individuals with experience deriving from academic research for public or private universities or institutes in Member States may also become members of the group (up to 2 members).
3. The members referred to in point (a) of paragraph 2 shall be designated and appointed by the Commission on the proposal of Member States. The members referred to in points (b), (c) and (e) of paragraph 2 shall be appointed by the Commission from among those who have responded to the call for applications. The member referred to in (d) of paragraph 2 shall be appointed by Europol.
4. On the basis of the call for applications applicants who were deemed suitable candidates for group membership, but were not appointed, should be placed on a reserve list, with their consent. The Commission will use this list for the appointment of replacements for members, if needed.
5. Members of the group shall remain in office until such time as they are replaced or their terms of office ends.
6. Members who are no longer capable of contributing effectively to the group’s deliberations, who resign or who do not comply with the conditions set out in paragraph 3 of this Article, or Article 287 of the Treaty, may be replaced for the remainder of their term of office.
7. Members appointed in a personal capacity shall each year sign an undertaking to act in the public interest and a declaration indicating the absence or existence of any interest which may undermine their objectivity.
8. The names of members appointed in a personal capacity shall be published on the Internet site of the DG Justice, Freedom and Security and in the C Series of the Official Journal of the European Union.
9. The names of members shall be collected, processed and published in accordance with Regulation (EC) No 45/2001.
Article 4
Operation
1. The group shall elect a Chairperson and two vice Chairpersons from among its members acting by a simple majority.
2. In agreement with the Commission, sub-groups may be set up within the framework of the group to examine specific questions under terms of reference established by the group. The sub-groups shall comprise a maximum of nine members and shall be dissolved as soon as their mandates are fulfilled.
3. Information obtained by participating in the deliberations of the group or its sub-group shall not be divulged if, in the opinion of the Commission, that information relates to confidential matters.
4. The group and its sub-groups shall normally meet on Commission premises in accordance with the procedures and schedule established by it. The Commission shall provide secretarial services to the meetings of the group and its sub-groups. Representatives of interested Commission services may attend meetings of the group and its sub-groups.
5. The group shall adopt its rules of procedure on the basis of the standard rules of procedure adopted by the Commission.
6. The Commission may publish, in the original language of the document concerned, any summary, conclusion, or partial conclusion or working document prepared by the group.
Article 5
Additional experts
1. The Commission may invite experts or observers from outside the group with specific competence in a subject on the agenda to take part in the work of the group.
2. The Commission may invite official representatives of Member States, candidate countries or third countries and of international, inter-governmental and non-governmental organisations to participate at the meeting of the Group of Experts.
Article 6
Meeting expenses
1. The Commission shall reimburse travel and, where appropriate, subsistence expenses for member and experts in connection with the group’s activities in accordance with the Commission’s rules on the compensation of external experts.
2. The members, experts and observers shall not be remunerated for the services they render.
3. Meeting expenses are reimbursed within the limits of the annual budget allocated to the group by the responsible Commission services.
Article 7
Repeal
Decision 2003/209/EC is repealed.
Article 8
Applicability
The Decision shall apply for 3 years.
Done at Brussels, 17 October 2007. | [
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Commission Regulation (EC) No 1507/2002
of 22 August 2002
fixing the corrective amount applicable to the refund on cereals
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Council Regulation (EEC) No 1766/92 of 30 June 1992 on the common organization of the market in cereals(1), as last amended by Regulation (EC) No 1666/2000(2), and in particular Article 13(8) thereof,
Whereas:
(1) Article 13(8) of Regulation (EEC) No 1766/92 provides that the export refund applicable to cereals on the day on which application for an export licence is made must be applied on request to exports to be effected during the period of validity of the export licence. In this case, a corrective amount may be applied to the refund.
(2) Commission Regulation (EC) No 1501/95 of 29 June 1995 laying down certain detailed rules under Council Regulation (EEC) No 1766/92 on the granting of export refunds on cereals and the cereals and the measures to be taken in the event of disturbance on the market for cereals(3), as last amended by Regulation (EC) No 1163/2002(4), as amended by Regulation (EC) No 1324/2002(5), allows for the fixing of a corrective amount for the products listed in Article 1(1)(c) of Regulation (EEC) No 1766/92. That corrective amount must be calculated taking account of the factors referred to in Article 1 of Regulation (EC) No 1501/95.
(3) The world market situation or the specific requirements of certain markets may make it necessary to vary the corrective amount according to destination.
(4) The corrective amount must be fixed at the same time as the refund and according to the same procedure; it may be altered in the period between fixings.
(5) It follows from applying the provisions set out above that the corrective amount must be as set out in the Annex hereto.
(6) The measures provided for in this Regulation are in accordance with the opinion of the Management Committee for Cereals,
HAS ADOPTED THIS REGULATION:
Article 1
The corrective amount referred to in Article 1(1)(a), (b) and (c) of Regulation (EEC) No 1766/92 which is applicable to export refunds fixed in advance except for malt shall be as set out in the Annex hereto.
Article 2
This Regulation shall enter into force on 23 August 2002.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 22 August 2002. | [
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COUNCIL DECISION
of 25 September 2008
approving on behalf of the Community Annex 8 to the International Convention on the Harmonisation of Frontier Controls of Goods
(2009/161/EC)
THE COUNCIL OF THE EUROPEAN UNION,
Having regard to the Treaty establishing the European Community, and in particular Article 133, in conjunction with the second subparagraph of Article 300(2) thereof,
Having regard to the proposal from the Commission,
Whereas:
(1)
The International Convention on the Harmonization of Frontier Controls of Goods, 1982 (‘the Convention’) was approved by Council Regulation (EEC) No 1262/84 (1).
(2)
Article 22 of the Convention, in conjunction with its Annex 7, provides that the Administrative Committee for the Convention can propose and adopt amendments to the Convention. These amendments are to be accepted unless a Contracting Party objects within 12 months of the communication by the United Nations of the proposed amendment to the Contracting Parties.
(3)
The United Nations Economic Commission for Europe (UN/ECE) Inland Transport Committee decided at its February 1999 session that the Convention should be revised to include provisions to facilitate the border crossing of vehicles.
(4)
The UN/ECE Working Party on Customs Questions affecting Transport subsequently produced draft proposals to add a new Annex 8 to the Convention in order to complement the existing provisions.
(5)
That Annex was adopted by the Administrative Committee for the Convention in October 2007 and as no objections were raised, the Annex took effect from 20 May 2008.
(6)
The purpose of Annex 8 to the Convention is to facilitate international trade by reducing, harmonising and coordinating procedures and paperwork in connection with the border control of goods, in particular live animals and perishable goods. Annex 8 also aims at improving the operation of border crossing points, as well as technical matters relating to the mutual recognition of international vehicle inspection and weight certificates.
(7)
The facilitation of international trade and the removal of technical obstacles to trade is an objective of the common commercial policy and thus falls under the exclusive competence of the Community.
(8)
The Community position concerning the proposed amendment of the Convention was approved on July 2005.
(9)
Therefore, the amendment to the Convention should be approved,
HAS DECIDED AS FOLLOWS:
Article 1
Annex 8 to the International Convention on the Harmonization of Frontier Controls of Goods is hereby approved on behalf of the Community.
The text of that Annex is attached to this Decision.
Article 2
This Decision shall be published in the Official Journal of the European Union.
Done at Brussels, 25 September 2008. | [
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COMMISSION REGULATION (EC) No 835/2006
of 6 June 2006
opening a standing invitation to tender for the resale on the Community market of common wheat held by the Polish intervention agency
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Council Regulation (EC) No 1784/2003 of 29 September 2003 on the common organisation of the market in cereals (1), and in particular Article 6 thereof,
Whereas:
(1)
Commission Regulation (EEC) No 2131/93 of 28 July 1993 laying down the procedure and conditions for the sale of cereals held by intervention agencies (2) provides in particular that cereals held by intervention agencies are to be sold by tendering procedure at prices preventing market disturbance.
(2)
Poland has intervention stocks of common wheat, which should be used up.
(3)
In view of market conditions, in particular price pressures, the stocks of common wheat held by the Polish intervention agency should be made available on the internal market.
(4)
To take account of the situation on the Community market, provision should be made for the Commission to manage this invitation to tender. In addition, provision must be made for an award coefficient for tenders offering the minimum selling price.
(5)
It is also important for the Polish intervention agency’s notification to the Commission to maintain the anonymity of the tenderers.
(6)
With a view to modernising the management of the system, provision should be made for the electronic transmission of the information required by the Commission.
(7)
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 Polish intervention agency shall open a standing invitation to tender for the sale on the Community market of 150 000 tonnes of common wheat held by it.
Article 2
The sale provided for in Article 1 shall take place in accordance with Regulation (EEC) No 2131/93.
However, notwithstanding 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 selling price shall be set at a level which does not disturb the cereals market; it may not in any event be lower than the intervention price in force for the month in question, including any monthly increases.
Article 3
Notwithstanding Article 13(4) of Regulation (EEC) No 2131/93 the tender security is set at EUR 10 per tonne.
Article 4
1. The first partial invitation to tender shall expire at 15.00 (Brussels time) on 7 June 2006.
The subsequent partial invitations to tender shall expire each Wednesday at 15.00 (Brussels time).
The last partial invitation to tender shall expire at 15.00 (Brussels time) on 28 June 2006.
2. Tenders must be lodged with the Polish intervention agency:
Agencja Rynku Rolnego
Biuro Produktów Roślinnych
Dzial Zbóż
ul. Nowy Świat 6/12
PL-00-400 Warszawa
Tel. (48) 22 661 78 10
Fax (48) 22 661 78 26
Article 5
Within two hours of the expiry of the time limit for the submission of tenders, the Polish intervention agency shall notify the Commission of tenders received. This notification shall be made by e-mail, using the form in Annex III.
Article 6
Under the procedure laid down in Article 25(2) of Regulation (EC) No 1784/2003, the Commission shall set the minimum selling 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.
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, 6 June 2006. | [
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Subsets and Splits